A guest today from law student Tim Haddow. He is involved with the Edinburgh University’s Law Students’ Council campaign for fair access to the legal profession. Further background is available on the campaign website.

A stained glass window dominates Parliament Hall in Edinburgh, once the seat of the Scottish Parliament, now the hub of the Scottish courts. It depicts the inauguration of the College of Justice and the Court of Session by King James V in 1532. But the link between power, the establishment and the legal system is more than symbolic.

In his provocatively titled critique of land ownership in Scotland, “The Poor Had No Lawyers”, Andy Wightman argues that the Scottish legal profession has been complicit in a system that allowed the rich to acquire and retain much of Scotland’s land whilst the rights and interests of the poor were ignored or dismissed.

Whether or not Wightman’s analysis is right, it is undeniable that the Scottish legal profession was historically the preserve of the privileged: only they could afford the expensive education required. And it is hardly a flight of fancy to suggest that a legal profession overwhelmingly drawn from one part of society may mean a legal system that cannot fairly balance the needs and interests of all.

Like any human activity, the operation of the legal system inevitably reflects the approach, attitudes and preferences of those who operate it. And, as Wightman’s book exemplifies, the legal system has an unique role in shaping and regulating our society. Through it, rights are enforced, disputed facts are adjudicated, fault is attributed and the power of the state to impose settlements is exercised. The legal system determines what is ‘reasonable’ or ‘fair’ or ‘just’ for employers and employees; landlords and tenants; companies and consumers; the police and the public.

Secondly, whilst politicians may formulate law, it is our judiciary – selected from the ranks of the legal profession – who interpret and apply it. They preside over trials of the accused and sentence the convicted. In our common law system, they are entrusted with adapting the law to changes in society.

Finally, the legal system is not just of practical importance. The principles that guarantee democracy and the rule of law make it a constitutional actor in its own right. It adjudicates disputes between the state and the individual and determines the legality and justice of the acts of government. For Scotland, it defines the limits of the elected parliament’s power.

These factors demonstrate the importance a legal system that justly adjudicates between competing interests within society. And until the legal profession is open to all on their basis of aptitude for the legal practice, whatever their socio-economic background, the legal system will never escape the suspicion that it inherently favours the portion of society by which it is run.

Sadly, the dominance of the legal profession by the privileged is not restricted to history. A 2006 survey of Scottish solicitors showed just how few lawyers came from families whose parents were not professionals of one sort or another. Thanks to the scrapping of tuition fees, the availability of student loans and the efforts of university outreach programmes, access to law as an undergraduate degree is now wider than ever. But a more diverse profession is not being created: graduates entering legal training as recently as 2010 were much more likely than those starting other postgraduate courses to be from well-off families.

As in reformation days, it is the cost of education that is the stumbling block. Law graduates now need a postgraduate qualification before they can become trainee solicitors. The government used to support this course, the Diploma in Professional Legal Practice (DPLP), with a grant to cover the fees and another, means-tested, grant to assist with living costs. But rising costs and a capped fees award – now a loan – mean only half the actual fees are covered. The maintenance grant likewise failed to keep pace with inflation and was scrapped entirely two years ago. Consequently, law graduates must now find around￡9,000 to fund their diploma. Most start with no guarantee of a job at the end so, even for those with financial security, it is a massive gamble. For the less privileged, it is an impossibility.

In the longer-term, there must be reform of legal training to eliminate this financial hurdle. But such radical overhaul will take time, even if started now. The current system developed with the acquiescence of governments of all colours and remains part-subsidised by the state. Until reform is completed, the Scottish Government bears a moral and political responsibility to counter the increasing inequity in access to the legal profession.

Fortunately, a simple and effective solution exists: extend to DPLP students the same maintenance loans available to undergraduates. This is already done for equivalent courses in other professions and would reduce the personal contribution to a level achievable by all students.

But the Government’s response so far has been to shrug its shoulders. On a practical level, it argues that a recent change to the fees award has widened access to the profession. It has not. The reform does nothing for fairer access whilst meaning more government money goes to those who could afford to pay anyway. The government also advances a political argument: that fair access to the legal profession is not a priority. Speaking in the Scottish Parliament, the Cabinet Secretary for Education said:

“We do not support similar schemes for other professions in which employment is mainly private, such as the architecture and veterinary professions, and I do not think that we should do so in the case of the legal profession.”

Mr Russell’s choice of comparison is strange: both architecture and vet students in fact already receive extended student support arguably more generous than that needed to ensure less privileged law students can enter the legal profession.

But the underlying suggestion is that the legal profession is just another profession; that entrenched privilege matters no more amongst lawyers than, to use Mr Russell’s comparators, among those who design our houses or neuter our pets. This demonstrates a dangerously impoverished understanding of the role of the legal profession in our society.

Fair access to the legal profession does matter. It matters to creating a legal system operated and shaped in a way that meets the needs of all our society. It matters to creating a judiciary that fully understands the society it judges. And it matters to ensuring the levers and safeguards of constitutional power are operated by those who legitimately represent the society they serve.

Fair access to the legal profession matters. It should matter to the Scottish Government too.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the UN and has been in force from 3 January 1976. Amongst its stated commitments are a right to free education which, more specifically, relates to the following (from Wikipedia):

“Article 13 of the Covenant recognises the right of everyone to free education (free for the primary level and “the progressive introduction of free education” for the secondary and higher levels). This is to be directed towards “the full development of the human personality and the sense of its dignity”,[14] and enable all persons to participate effectively in society. Education is seen both as a human right and as “an indispensable means of realizing other human rights”, and so this is one of the longest and most important articles of the Covenant.”

The United Kingdom was signed up to this in the Harold MacMillan era, or as many in Labour would probably say ‘the good old days’.

Despite having a good 35 years to make good on this commitment, including 13 years of unbroken Labour rule, we have ‘ganged agley’ on many an occasion, not least the recent move by the coalition Government to open the door to fees of up to £9,000 a year for students. Even the righter wing parties in social democratic Sweden know to not charge tuition fees, front end or back. It’s a shame that the Lib Dems see things differently.

Well, despite the International Covenant on Economic, Social and Cultural Rights, and via The Telegraph, today marks the day that Labour swung back to being a pro-fees party in Scotland. The SNP has gleefully called it Johann Lamont’s Nick Clegg moment. And well they should.

At the last Scottish Parliament elections, only a year ago, Scottish Labour’s position of “No price tag for Scottish students” was as follows (taken from the party’s very own website):

“a Labour government will not introduce any up-front fees or graduate contribution for access to higher education in the lifetime of the next Parliament. There will be no price tag on education. Bringing in a graduate contribution would not resolve the present financial difficulties of the universities which are the responsibility of the current SNP government. Experts figures show that the gap is significantly less than some had predicted and can and will be met.”

The initial conclusion to draw from this decision is that it is opposition for opposition’s sake and tuition fees can be added to minimum pricing, council tax and votes at 16 where Labour contort their positions, despite their better senses, in order to ensure that their party is not on the same page as Salmond’s mob, come what may.

The argument that Scottish universities can’t offer more places to bright Scottish kids while fees are covered by the Scottish Government seems to be irrelevant here. If a fixed number of Scottish students have their fees paid for and a fixed number of English students have to pay their fees, then the problem of funding for one tranche of students in Scotland cannot and will not impact on the other. There is no incentive, despite what Johann Lamont claims, to have more English students than Scottish because the same money is paid into the university either way, just from a different source.

The main risk that I can see is that this equilibrium is broken through too many English students claiming to be Scottish via a distant Scottish, Welsh or Irish grandparent, as has already been reported. This really would be a nonsense and certainly not in the spirit of the democratic will of the constituent parts of the UK.

England had an election and clearly voted for parties that, with their combined majority, are in favour of tuition fees. Scotland had an election and voted overwhelmingly for parties that want to keep tuition free, or at least said they wanted to at the time before this flip-flopping began. We might as well scrap the Scottish Parliament if we are not going to tolerate and respect devolved differences within the UK. Financing university education shouldn’t be sullied by the same bastardisation of common sense rules as happens when picking a Scotland XV at rugby. Not that it’s easy to prove you are Scottish, English, Welsh or Northern Irish when we only have British passports and British driver’s licenses to identify us. There’s a simple solution to that of course…

So, much like the 1970 Treaty on the Non-Proliferation of Nuclear Weapons, Labour signed the United Kingdom up to move the country towards free university education but is pulling us in a different direction with its reactionary policies.

What will it take for Labour to move away from opposition for opposition’s sake and realise that we already have a graduate tax in operation to fund free tuition and ensure our universities remain world class. It’s called income tax.

The mess of student funding within the UK had another murky splurge added to it over the weekend with the news that human rights lawyer Phil Shiner is to challenge the Scottish Government’s plans to charge English students tuition fees. According to Phil, these plans breach the European Convention on Human Rights as they charge students from other parts of the UK to study north of the border while students from other parts of the EU won’t pay.

I really, really hope that this legal challenge fails.

Education is a devolved matter. That means that all Westminster control is rescinded to Holyrood and it also means that a different path is permitted to be taken. Encouraged even.

English students and their parents, as part of the wider English population, voted for a Tory majority that stood on a platform of students paying fees. Just this year, Scottish students and their parents, as part of the wider Scottish population, voted for an SNP majority that has remained steadfastly opposed to students paying a single penny for their education. Both sides have made their beds and should now lie in them.

A recent poll showed that 80% of British people believe that it is unfair that while universities in Scotland do not charge tuition fees to Scottish pupils or other EU nationals, students from England, Wales and Northern Ireland studying at Scottish universities do have to pay tuition fees. That propertion drops to 53% in Scotland only, still a majority.

Had I been asked the same question as this poll, I would also have said that it was unfair. Nonetheless, I still think that the Scottish Government is absolutely right to charge English students a certain level of fees. You have to fight fire with fire.

What this YouGov poll did not include was a question on whether charging English students £9,000/year (I think we can safely remove the “up to”) to study further education was also unfair. You can be sure that more than 53% of Scots would say Yes to that.

So, as a result of Tory/Lib Dem policies, the Scottish Government is faced with English student refugees, fleeing over the border to avoid paying a small fortune to George Osborne and intent on taking up as many of Scotland’s free spots as possible. This would inevitably be to the detriment of Scottish students, quite probably specifically to the detriment of Scottish students who would have just scraped into university and would have needed that opportunity the most.

People claim that this is unfair. Why should Swedish and Maltese and Hungarian students be allowed to study in Scotland for free while English students can’t? Three reasons. (1) There are less students coming to Scotland from continental Europe than there are from England, (2) the Tory/LD coalition has created a problem that it is not for Scotland to solve and (3) member states must treat other states fairly but can arrange its own affairs as it pleases.

Let’s just imagine what would happen if Scotland was forced to let English people pay nothing for their Scottish university places and had to treat all applications equally:

There are circa 50million people in England and circa 5million people in Scotland. That presumably means that Scotland can expect up to ten times more applications from England than it does from within Scotland and, if total fairness is applied and standards are assumed to be even across the UK, that means ten times more places for English students in Scotland.

What happens to all of those students that don’t make it into Edinburgh or Glasgow or, goodness, the English Oxford/Cambridge-reject ghetto that is St Andrews? Practically speaking it means Dundonians/Glaswegians/Edinburghians/Aberdonians paying £9,000/year fees in Liverpool or Exeter or Kent, all because English people voted for a Tory/Lib Dem Government that rammed through what is effectively an English policy. That surely is unfair and surely cannot be allowed to happen if we’re serious about devolution being a lasting settlement for the United Kingdom.

So, for me, from a fairness perspective, the Scottish Government’s decision is both fair and unfair, but, crucially, more the former than the latter.

And from a political perspective, the SNP might just be onto a winner here. It now has a UK-wide audience to whom it can show that it is the sole governing guardians of free tertiary education, a significant faultline between what the UK is and what an independent Scotland could be.

There does seem to be a swell of annoyance that the SNP has not made clear its position on how it shall fund tuition fees when/if Scotland is independent. For me, this is a separate concern for a separate time and, indeed, conflation of the immediate concern of whether the Scottish Government can proceed, now, as it intends with the imagined scenario of what Scotland would look like ‘if’ Scotland votes Yes in the referendum is an admission that an argument has been lost.

Fair is worth fighting for was the green slogan from the last UK election and it’s a motto that the SNP has thankfully taken right to the heart of its policy on further education. Scotland should be proud of the imagination and tenacity shown by Mike Russell and the Scottish Government at large and should be hopeful that Paul Shiner’s legal challenge fails.

A guest post today from Gary Cocker. Gary is a recent Politics graduate from the University of Dundee beginning his Masters at Queen’s University Belfast in September. He’s also just finished his year as National Secretary of SNP Students and tweets as @garyphcocker.

The funding of higher education has never been higher on the political agenda in all the nations of the UK. As a recent graduate, I can count myself lucky that I was one of those who went to University post-endowment fee but pre-fees/funding crisis; however, my fortunate circumstances have not diminished my interest or indeed frustration at the debate being had on higher education.

The new NUS Scotland President, Robin Parker, has made widening access to higher education a top priority. I don’t think there’s anybody out there who doesn’t wish to ensure that those who may not have a strong family or school tradition of higher education have access to more information and opportunities. In addition, the NUS are pushing for a maintenance of the current number of graduates across the country. However, without a wholesale increase in higher education spending
(currently 1.1% of GDP as opposed to roughly 1.5% across Western Europe), it’s simply unrealistic to expect numbers to be maintained without some sort of student contribution being sought.

Having been involved in student politics (a statement which I was desperate not to make), I know that what I’m about to suggest is almost heresy; however, that nobody has seriously mooted it as at least part of the solution is troubling.

Now, before I begin, I should point out that I’m not one of those people who believe that the sole aim of a University education is to equip yourself for a specific career. Although education can be a means to an end, it should also be an end in itself; the pursuit of knowledge is one of the things that separates us from the animals, and those who have a strong passion and a particular ability for a subject such as philosophy or history should be encouraged to indulge themselves and in turn strengthen the intellectual base of our society.

However, a sizeable number of people on courses such as these have neither the passion or, it must be said, the ability to invest themselves properly in these subjects. This problem is not limited to the Arts, but is instead a nationwide issue. It’s been 4 and a half years since I applied for University, and I can distinctly remember my surprise at just how many people in my year were applying for courses at Universities without a specific career path or any love of education I’d seen on display; instead, it was almost an expectation or, even worse, a “back-up” to give themselves four years’
worth of breathing space and parental pressure to find a job. A notable minority of those who did go to University have since dropped out, putting not only themselves in financial difficulty but also leaving their institutions with no reward for their investment. Many of those who did complete all four years have now emerged with ordinary degrees, Third Class Honours or 2:2s and have simply either signed on or upped their hours in their part-time job.

These hazy memories of high school UCAS applications are backed up by the figures. Nationally,approximately 48% of high school leavers in Scotland continue into higher education, with similar figures in the other home nations. When New Labour set the 50% target about a decade or so ago, they not only ignored the financial implications of such an aim but also the societal impact of implying that the most worthy thing for young people to do post-school is University. Think back to your own high school class; would you consider half of those in your year capable of four years of voluntary, in-depth academic involvement? Or, like me, would you believe that the true figure of those deserving of a continuation of studies is far lower?

It may not be the most popular option and may be labelled as regressive by many, but if we truly want a diverse economic workforce and a University sector free of fees for those who are academically and personally committed to their education, then the first port of call should be a re-examination of student numbers. All of the solutions put forward by politicians and student leaders so far have centred either around government spending or individual spending. To my mind, this is only alleviating the symptoms rather than the root cause of the problem. If University admission grades were to be raised in conjunction with a slight reduction in places, it would not only help to stretch the funding currently available further but would also perhaps make us as a nation re-evaluate the opportunities and advice given to young people as they set off into the “real world”.

Some may claim cutting student numbers would be elitist and cruel; however, to my mind, saddling a young person with 4 years of economic inactivity, crippling debt and an increasingly worthless piece of paper is the more cruel course of action.