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Miss Melanie Johnson: This is a very interesting argument, and I should be interested to hear my hon. Friend's comments on this. If he is arguing that English students should have their fourth year at a Scottish university paid for--I understand that argument very well--what does he say about Scottish students attending English universities? Does he believe that they, too, should have their fourth year paid for--even if they are doing a three-year course? Whichever way one looks at the matter, in either direction, is there not an anomaly?

Mr. Canavan: I thought that I had already dealt with that point. I said that the four-year honours course in

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Scotland is the norm rather than the exception, whereas four-year honours courses in England are not the norm. A Scottish student who attends university in England--whether it is for four years or whatever--will pay exactly the same fees as his or her counterpart from England, Wales or Northern Ireland, whereas a student from England attending a Scottish university will have to pay more than his or her Scottish counterpart. That inequity creates the--

Miss Johnson: Will my hon. Friend give way?

Mr. Canavan: No. I have dealt with the point twice already, and I shall not go on repeating myself.

The Minister seemed to argue that the main beneficiaries of the Lords amendment will be students from well-off backgrounds. He came out with some alleged facts about students from places such as Eton, Harrow, Winchester and Wellington at Edinburgh university. I wondered about that. I certainly do not recall that, while I was at Edinburgh university in the 1960s, there were huge numbers of public school boys or public school girls in my class. I got the impression that there were more working-class students with wellington boots than upper-class wallies from Wellington school. I should have thought that, in this day and age, Edinburgh university and St. Andrews university would be even more egalitarian.

Mr. Jim Murphy: Will my hon. Friend give way?

Mr. Canavan: No, I have already given way to my hon. Friend.

Even if it is true that well-off students will benefit most from a Government concession, that is equally true of the original concession--on students domiciled in Scotland--which was announced so generously by my hon. Friend the Minister.

Mr. Murphy: It is not true.

Mr. Canavan: We are asking only for equity. It is true.

Mr. Murphy: It is not true.

Mr. Canavan: It is true. If the hon. Gentleman cannot see that, he should go back to school--[Interruption.]

Mr. Deputy Speaker: Order. The hon. Member for Eastwood (Mr. Murphy) must be quiet. He does not stand a very good chance of being called to speak in the debate if he continues with sedentary interventions.

Mr. Canavan: It is a nonsense to claim that only rich students, or students from rich families, will be paying fees. Most students will have to pay fees in whole or in part. Anyone with a residual income of £16,000 per annum or more will have to pay some fees--and £16,000 per annum is not exactly filthy rich. I fail to understand the argument that it is only students from rich backgrounds who will benefit from the Lords amendment.

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I cannot understand why the Government are behaving in such an intransigent and apparently arrogant way. It is not good enough for Ministers to say that the House of Lords is in favour of the amendment and the Tory party is in favour of the amendment, so we ought to be against it. That is knee-jerk reaction politics at its worst.

10.15 pm

Let us look at the merits of the amendment, rather than the source of the amendment. [Interruption.] I am glad that my hon. Friend the Minister agrees with me. I can remember that not all that long ago, my hon. Friend was on the same side as the Tory party and the House of Lords when he helped to destroy the last Labour Government's proposals to set up a Scottish Parliament. Anyway, I do not want to go into that at this time of night--and I want to abolish the House of Lords completely and have no second Chamber at all, whether through heredity or patronage. In fact, I believe that the abuse of patronage might be even worse than heredity, but I do not want to go into that.

Mr. Deputy Speaker: Order. It does not matter whether the hon. Gentleman wants to go into that, because we have a different motion before us.

Mr. Canavan: In conclusion, it is rather ironic that on this issue even the reactionary House of Lords takes a more enlightened view than the Government. I am sure that if we were given a free vote in this House, this House would be like minded. I therefore appeal to hon. Members to consider the merits of the case.

If the House accepted the Lords amendment, we would be doing the Government a great favour, by saving them from the embarrassment of an almost certain defeat in the European Court of Justice. I have been informed that a Member of the European Parliament has already complained to the European Commission and has demanded that the Commission look into this discriminatory matter of tuition fees to see whether any European directives have been contravened. Even if the existing European directives have not been contravened in the opinion of the Commission, it would of course be open to any individual to take a test case to the European Court of Justice.

I appeal to my hon. Friend the Minister: surely it should not require court action to convince the Government to think again. The previous Government suffered the humiliation of one court defeat after another, and we do not want to have to go through that, either in the courts in this country or in the courts of the European Union.

Mrs. Margaret Ewing (Moray): I shared many teaching experiences with the hon. Gentleman. Does he agree that the Government might find themselves having to pay legal bills amounting to more than the £2 million that he mentioned earlier?

Mr. Canavan: I am grateful to my hon.--I almost said "my hon. Friend". I mean my former honourable teaching colleague, but she is my honourable friend in the sense of the teaching profession because she and I taught in the same very good school. I am grateful to her for her intervention. The £2 million is surely a very modest sum in the context of total Government expenditure.

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If a student from France, Germany or Italy pays the same as a Scottish student because France, Germany and Italy are in the European Union, surely students from England, Wales and Northern Ireland are entitled to the same treatment because they are also in the European Union. It is a simple matter of equity and justice. I urge the Government, even at the 11th hour, to do the honourable thing and ensure a fairer deal for all students who choose to study at Scottish universities.

Mr. Boswell: Perhaps for the first time in my political experience, I very much endorse the remarks of the hon. Member for Falkirk, West (Mr. Canavan). I speak as a former Minister responsible for higher education, with a residual and somewhat obsolescent knowledge of the regulations. I concentrate on those rather than the wider issues of justice, as I believe that the Government are skating on very thin legal ice. I have no precise legal expertise in these matters, but I am convinced by my experience that they should reconsider their decision.

Like their predecessors since the 1980s, the Government are constrained by the Gravier judgment, which prohibits discrimination against students from the European Union or the European economic area in respect of tuition fees. In other words, if most UK domestic students are currently exempted from tuition fees by mandatory awards, the same facility must be available to European students.

I am interested in the argument that I believe the Government are deploying--that the judgment applies only in a single-market sense, in that it prevents artificial distinctions between citizens of different member states, but is silent on whether a Government may discriminate between citizens of their own state, as is happening tonight.

I am slightly surprised that the Government have not fallen back on the argument that universities are private institutions that are not formally or strictly absolutely obliged to charge fees, although of course the system is set up so that they must do so. Perhaps it is arguable that universities discriminating in their fees policies might themselves risk legal challenge. Beyond that, it is extremely unlikely that any court would not look beneath the surface at the reality behind the legislation. It is legal thin ice indeed.

Even if Gravier applies only at the macro level, between citizens of member states, it is arguable whether the Government can sustain discrimination between citizens of different parts of the United Kingdom. It is one thing to charge fees on the basis of the institution and to require that all those studying there should be subject to the same regime, just as those who live in a particular place are liable to the taxes that apply there. In this case however, the question whether fees are charged will be determined by an entirely contingent factor--where the student happens to live. There is no basis within a single state--the United Kingdom--for discrimination along those lines. I suspect that such discrimination would be under direct attack through the European convention on human rights and probably also through the European Court of Justice, in respect of any British citizen who happened to live south of the border.

The Minister of State conspicuously failed to answer the point that I put to him in an intervention, in respect of the position of a student who is a national of another

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EU country, but happens to have a parental home or a normal place of residence in England, Wales or Northern Ireland. The Minister said that it was a normal administrative matter and that it would be a matter of determining whether that student would be exempt from Scottish fees or treated as an English student for that purpose. Either way, the Government would be in severe difficulty. If they decided that a German student resident in Carlisle or Bolton should be treated as a Scottish student as he was attending a Scottish university, and exempted him from fourth-year fees, it would then be arguable that an English student attending a Scottish university should also benefit from that decision. If they decided that such a person were an honorary Englishman although he was a German national, how would they reconcile that decision with the Gravier judgment? I do not think that they could do it. They have either to act in a hybrid manner in English law, by treating two residents of England in different ways, or they have to break the principles of the European Union.

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