Scotland Bill

Lord Forsyth of Drumlean Excerpts

Thursday 2nd February 2012 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the “toxic two” has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.

[Lord Forsyth of Drumlean]

This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.

[Lord Foulkes of Cumnock]

I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

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[Lord Forsyth of Drumlean]

My Lords, I speak to my Amendment 24. Just to make sure that people realise that the noble Lord, Lord Foulkes, and I agree only on some things, I respectfully remind him that it was the Labour Government who introduced tuition fees.

I remember that particularly well because the only time I have taken a Bill through this House was when the much missed late Lady Blatch was our Front-Bench spokesman. She was ill and asked me to take the Bill through the House. The rather splendid noble Baroness, Lady Ashton, who has sadly been taken from us to other duties, was leading on the Bill. I said to her, “Look, I have a problem”. There was an issue about gap year students having to pay more. I said, “If you will amend the Bill and allow for gap year students, I won’t waste your time and be unnecessarily difficult, but there is another thing I need you to do. I need you to help me to make sure that we do not get a vote on the principle of tuition fees”—which the Liberals were very keen to achieve—“because I'm being told by the powers that be in our party that we have to vote against tuition fees and most of the people on my side would be in the wrong lobby”. So we attempted to avoid having a vote because most of my colleagues rightly recognised that the future of universities depended on having tuition fees.

This is not a debate about the principle of tuition fees. Indeed, my amendment does not mention tuition fees. The Bill is about the exercise of power—we have taken back Antarctica; we are giving other things—and it defines the powers of the Scottish Parliament. The new clause in my amendment is intended to make clear that the Scottish Parliament is free to exercise its powers, but it cannot exercise its powers in a way that discriminates against people from England, Wales and Northern Ireland relative to people in other European states. That is the real wickedness involved in what is happening now: Greeks, Germans, Poles and French all get the same deal as the Scots, but English, Welsh and Northern Ireland people do not. When I say Northern Ireland people, Welsh people and English people, this is not about nationality but about the place where you live.

As I said to someone from the BBC the other day, “You work for the BBC. You get posted to Glasgow. You've got three children who are aged, say, 14, 15 and 16 and they want to go to university. You get rung up by the director-general and told that you have to move to Manchester. That could cost your children £100,000 in fees because they will no longer be eligible to go to some of the best universities in the country”—I declare an interest as a graduate of St Andrews—“such as St Andrews, Edinburgh or Glasgow for free. The moment you move to England, they will have to pay. This is just a complete nonsense. Of course, you could accept a job in Madrid, or Paris or anywhere else in Europe—but not in England, Wales or Northern Ireland”. It is an absurdity.

The real wickedness comes when you say in a reasoned way to Alex Salmond, “This is not fair”. The response you get is: “If Scotland is independent, the English will get the same deal as the Greeks, the French and the Germans”. That is not good enough. I hope that my noble and learned friend is not going to get up and give the same, lame arguments about how this is what devolution is about. No, it is not. Devolution is about making decisions in Scotland in the interests of Scotland. It is not about discriminating against people from the rest of the United Kingdom in a way which was never envisaged during the passage of the Scotland Act through this House.

I am sorry that the noble Lord, Lord McConnell, is not in his place. Last week, when we were discussing the Bill, he came up with a brilliant image when, in trying to explain the apparently irrational behaviour of the First Minister and his separatist colleagues, he said that it is a bit like tenants who want to get a move from a bad estate to another estate: the first thing you do is upset the neighbours. This is about upsetting the neighbours, and upsetting the neighbours it is. There is real anger about this.

I stood recently in a rectorial campaign in St Andrews—I only got 900 votes, which is actually not bad for a banker and a Tory these days. The winning candidate was very good indeed. I spent a week in St Andrews with the students. There you have, side by side, students working very hard, much harder than I ever did when I was at St Andrews, in a university which has been transformed. A third of the students are English, a third are Scottish and a third are European or international. The Scottish students will pay nothing. The fees are going up to £9,000 a year and it is a four-year degree, so that is £36,000 if you are English. The European students are paying nothing. They are all working side by side.

The other thing that struck me was that St Andrews just looks the same as it did—most medieval towns do. The restaurants and the pubs are the same. The students are certainly much more focused. However, whereas in my day there were no students working in the restaurants and the bars, there now are. They need to do so in order to make ends meet. It is quite divisive and wrong to have students from different parts of the United Kingdom faced with substantial borrowing and debt, or no debt, simply because of which part of the United Kingdom they live in. I believe that this is a deliberate policy to create anger. There is genuine anger and resentment, not least on the part of those students who feel that they are being given a better deal relative to their colleague than they perhaps deserve.

There is also anger on the part of parents. I suggested to someone who shall remain nameless who was at St Andrews with me that they might like to make a contribution to the university in its 600th anniversary year. She said, “Not on your life! Not while my children are not able to go to St Andrews without having to pay these enormous fees”.

So it is quite wrong. It would be entirely appropriate for the Government to restrict the powers of the Scottish Parliament so that it cannot operate in this way on any area of policy. As the noble Baroness, Lady Liddell, a former Secretary of State for Scotland, pointed out, the Barnett formula is extremely generous. The spending per head on education is about 20 per cent higher. It really is adding insult to injury to ask the English to send more money per head north of the border on education for the privilege of seeing their children treated less generously than people from Greece.

If the Prime Minister says that he will defend the union to the last fibre of his being, here is a test. I ask my noble friend to ask the Prime Minister to look at this, and ask him seriously whether we can go on allowing this to happen. This is very timely. Hitherto, the fees have been at levels of £3,000 a year, so it would be £12,000. Now they are going up to £9,000 a year, so it is a huge imposition upon these students and is building enormous resentment. I hope that my noble and learned friend will give this some consideration.

A third party is very angry about this: the universities. I am delighted to see in his place the noble Lord, Lord Sutherland, with all his experience of higher education in Scotland. The universities are the poor mugs who have got to set the fees with this difficult and divisive position for their students, and who take all the flack for its consequences. I am not going to press this to a vote today, because I want to give my noble and learned friend time to think about it and come back at a later stage, but I hope that he will take it seriously. This is the first opportunity that we have had since the introduction of tuition fees and top-up fees to debate this matter. It is widely resented around the country. It is a deep, deep injustice which needs to be put right.

[Lord Sutherland of Houndwood]

My Lords, I thank my two preceding speakers for their kind remarks. I run the risk of being drawn into this love-in going on across the Benches and I do not especially wish to be, so I hope that they say something nasty about me at some point.

I support the two amendments. Neither is perfect, and they need a bit of further thought, but I particularly welcome their pairing. Amendment 22 illustrates very well the general principles implied in Amendment 24, which are what I wish to speak about. As a declaration of interest, I am a former principal of Edinburgh University. I have links with most of the universities that I will talk about, but that of course includes many south of the border that are our friends, colleagues and competitors. There is a view across the whole country on this which must be taken it account.

The problem, which has been well illustrated, is clearly the differentials in treatment of students from what is now called the RUK group—there is now a formal title in Scotland for the “rest of the United Kingdom”—and students from the European Union. This is disproportionate. The differential between them and the way in which they are now being separated out is unjust and is not something that we happily live with on either side of the border, or in the university system across the country.

This division started quite some time ago. There was a trickle of complaints when fees were originally raised through this mechanism but they were small sums of money, comparatively speaking. This trickle grew into a pretty strong stream when the target hit £3,000 and is now a vast torrent. There will be much irritation and anger, and a great degree of thinking twice about where to study as a result of this policy.

The figures in question come out of a series of decisions taken on the administration of higher education which started in 1992, when the two funding councils were separated. On grounds of consistency, I have to say that I opposed that separation. Indeed, if you read the relevant speech of the Member for West Lothian in the other place at the time, you will see that he quotes me as being against it. That was because I began to worry then about the kind of separation that will take, and has taken, place. The two funding councils are proceeding well according to their own administrative arrangements. I do not blame the accounting officers or members there. They have financial settlements imposed upon them by government, not least by this House.

The division that occurred then has grown in practice, perhaps in a way in which none had envisaged and certainly in a way that most of us regret. The issue today is not whether you can turn the clock back completely. Devolution has happened; I accept that. The issue is whether we want the kind of devolution that produces this sad differential between students from different countries and different areas within the United Kingdom.

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[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.

In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.

It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.

Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.

[Lord Forsyth of Drumlean]

My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.

[Lord Browne of Ladyton]

I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.

However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.

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However, I have to say that it was not just the Scots who were responsible for this situation. All the individual jurisdictions of these islands practised discrimination in that area in recognition of those professional qualifications in the legal profession. This discrimination, in principle, predates devolution. It persisted through devolution and was practised, to my knowledge, not just by Scots against others but against Scots legal professionals for a period of time. It may not have continued and I am not entirely sure of the position.

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.

[Lord Browne of Ladyton]

The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

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[Lord Browne of Ladyton]

I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

[Lord Forsyth of Drumlean]

Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.

[Lord Browne of Ladyton]

I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

[Lord Forsyth of Drumlean]

No.

[Lord Wallace of Tankerness]

European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.

When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen—or Mr Nicol Stephen MSP as he then was—as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.

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[Lord Wallace of Tankerness]

I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.

I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar—and some, indeed, at the Northern Ireland Bar—as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend’s amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.

However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.

[Lord Forsyth of Drumlean]

That is the position for Greeks, German, French, Italians and everybody else in Europe—that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.

[Lord Wallace of Tankerness]

It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence—which I was presented with as the then Minister with responsibility for higher and further education—that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.

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[Lord Foulkes of Cumnock]

I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.

I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer—I will not name him—told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens—and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.

My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself—I call him Lord Formula—to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.

I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, “Let's have this changed so that we don’t have this obligation”. I do not think he will succeed in that—I think it will be impossible for him to succeed in that—but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.

The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.

I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.

[Lord Forsyth of Drumlean]

My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.

I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.

I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.

I do not know whether or not it is legal to have a quota, but it is a remarkable argument. “Independence in Europe” was the slogan, and the whole idea of Europe—which, I confess, has been distorted—is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.

I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.

The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me—this is part of the United Kingdom. The devolution Bill—the Scotland Bill—gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive—not Government, Scottish Executive—particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive’s policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.

The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing—this is an important principle—people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government—that they are prepared to have a status quo of that kind.

I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.

Amendment 22 withdrawn.