The organisation Public Interest Lawyers succeeded earlier in the summer in obtaining the permission of the High Court to bring a judicial review of the tuition fee regulations for England. Although Mr Justice Collins commented that he was not "encouraging" the two student-claimants, noting that the regulations had received Parliamentary approval, permission to proceed to a judicial review hearing was granted on the basis that there was an arguable case that "insufficient regard had been paid to the question of participation and to the likelihood that fewer low income potential students will want to take the financial risk" of undertaking a higher education course. The judicial review is likely to be heard in October.
BBC Scotland has now reported that Public Interest Lawyers is seeking to challenge the Scottish higher education fee system as discriminatory, arguing that English students studying north of the border will be required to pay tuition fees whereas Scottish students studying at home will not. Under the Equality Act 2010, it is unlawful to discriminate against prospective and actual students on the grounds of "race" - one of the protected characteristics. "Race" includes "colour", "nationality" and "ethnic or national origins". Case law in the employment context under the 1976 Act has confirmed that the English and Scots have separate national origins and thus within the definition of "race". Both the 1976 and 2010 Acts contain a defence, however, for acts done pursuant to statutory authority in certain circumstances, including where a criterion relates to someone's place of "ordinary residence".