To be published as HC 140-xiv

House of COMMONS



Scottish Affairs Committee

The Referendum on Separation for Scotland

Wednesday 29 January 2014

Professor Hugh Pennington CBE, Alastair Sim and Professor David Raffe

Evidence heard in Public Questions 4259 - 4372



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Oral Evidence

Taken before the Scottish Affairs Committee

on Wednesday 29 January 2014

Members present:

Mr Alan Reid (Chair)

Mike Crockart

Graeme Morrice

Sir James Paice

Lindsay Roy

In the absence of the Chairman, Mr Alan Reid was called to the Chair


Examination of Witnesses

Witnesses: Professor Hugh Pennington CBE, Emeritus Professor of Bacteriology, University of Aberdeen, Alastair Sim, Director, Universities Scotland, and Professor David Raffe, Professor of Sociology and Education and Member of the Centre for Educational Sociology, University of Edinburgh, gave evidence.

Q4259 Chair: Thank you all very much for coming along this afternoon to help us with our inquiry. I should explain that I am Alan Reid, the vice-Chair of the Committee. I am in the Chair this afternoon because our Chairman, Ian Davidson, is ill today; he sends his apologies. Perhaps you could start off by introducing yourselves.

Professor Raffe: I am David Raffe. I am a professor at the University of Edinburgh. I have been engaged in educational research on a variety of topics, with a particular interest in the impact of devolution on both how policy is developed and how the system has developed within Scotland and, indeed, across the UK.

A particular reason for my being here is that I am a member of the team working on one of the projects that is part of the ESRC programme on the future of the UK in Scotland. The title of our project-I have it here but I always have to look it up-is "Higher Education in Scotland, the Devolution Settlement and the Referendum on Independence". As part of that project, as you might have noticed if you read today’s Scottish press, we are trying to provide a neutral ground in which the debates can be conducted. We have also been interviewing stakeholders and key people around the system to get their views on devolution, not just on independence, and wider issues. We have been looking at cross-border flows of students between the countries. We are working in particular with young people and how to engage them in the debate, so it is a wide-ranging project that is set in the context of some of this.

Alastair Sim: I am Alastair Sim, executive head of Universities Scotland, the representative organisation for Scotland’s university and higher education institution principals. We are obviously an interested party, but also a politically neutral party in this debate.

Professor Pennington: I am Hugh Pennington. I am not a neutral party. I think my position is fairly well known on the Better Together side. I trained in medicine across the river at St. Thomas’s, then I went to America and then I applied for a job with a medical research council in the tropics. They said that there was not one in the tropics but there was one in Glasgow, so I went to Glasgow and had-I would say-a productive time there during 10 years in the Medical Research Council institute at the University of Glasgow. Then I got the chair in Aberdeen, from which I retired in 2003.

I am only a Scot by domicile but I have lived more than half my life in Scotland, and I have had lots of dealings with the Medical Research Council and with research bodies in Scotland itself. I have been on a research assessment exercise panel and so on. I think I am fairly familiar with all the background to all the issues pertinent to the debate.

Q4260 Chair: Thank you. I would like to start off with a brief overview of how research council funding is allocated at the moment. Whoever wants to answer can just volunteer. Professor Sim, do you want to lead off?

Alastair Sim: I can’t claim professorial status, I am afraid. Very briefly, we have a situation at the moment within which Scotland is a successful contributor to an overall UK research eco-system where a great deal of research is done across boundaries by collaborative groups and where we believe that whatever happens-whatever constitutional settlement is ultimately reached after the referendum-maintaining that cross-border flow and eco-system will be in the best interests of the entirety of what is currently the UK.

Q4261 Chair: Is funding at the moment purely allocated by open competition and peer review, or is location a factor?

Alastair Sim: As far as we see it, it is on the basis of straight quality-based competition. That is one within which Scottish institutions tend to do well on the basis of the quality of the research that they are able to carry out.

Q4262 Chair: Professor Pennington, you wanted to come in.

Professor Pennington: Yes. If I could expand a little bit on how the money is given out as far as I see it from my personal experience, clearly, there are long-term commitments that the Medical Research Council makes to its research units and so on, such as the one I worked at in Glasgow, which are reviewed on a fairly regular basis. Then there are the individual research grants, which can be long term or shorter term, and are extremely competitive.

On the criteria used to award funding, in the first place, there has to be the money available to the grant committee to give out the appropriate number of grants. Twenty-five per cent of the applications will be successful; it is in that kind of order. They take into account the nature of the research, the background of the researcher, whether they are likely to deliver and also the institution in which they work-whether that is going to give them the appropriate support, the right milieu for research and so on. It will depend on the nature of the project how much weight you put on those, but the quality of the research itself is the overriding factor.

Professor Raffe: I would like to qualify that in a couple of ways. There have been cases where, for example, devolved Administrations or funding councils have co-funded activities with the research councils. That will be a slight qualification to the principle of being, as it were, geography free, geography blind. Again, one or two of the capacity-building investments that research councils have made have at least taken account of the spread across the UK. Often it is to avoid having a concentration, for example, in the south-east of England.

There is a smaller point, but it is worth mentioning. As a policy researcher, if I wanted to ask for funding for a project looking at an issue that made sense in terms of a Scottish policy agenda but might not be of particular interest elsewhere in the UK, there is always the concern of how you get that argument past a panel of referees, most of whom will be drawn from outwith Scotland. There is always that tension. I am most familiar with the ESRC, and to be fair, it has been very good procedurally at handling those issues. It has been very fair and objective, but there is always that tension and concern. Are we actually being given less favourable treatment because we are from this more peripheral part of the policy community?

Q4263 Chair: How do those tensions tend to get resolved in practice?

Professor Raffe: In two ways. One is by having procedural correctness, as it were, at all stages of the process, trying very hard to make sure that the actual processes do, as far as possible, take account, by looking at the way in which committees are established and the way in which selection panels are established to make sure that you have that geographical representation. I have been on committees where, at least tacitly, part of my role has been to argue the Scottish case, or to make sure that the Scottish case, and indeed the Welsh and Northern Irish case, does not go by default. It is also by awareness among academics. Certainly in my area, there is a desire to be fair, and a desire for it to be recognised that research is inherently a pluralist exercise, and that there are different perspectives and interests even in policy-related research.

Q4264 Chair: In your view, how successful have the research councils been at recognising the geographic issues?

Professor Raffe: I stress that I am talking very much about research where there is a clear geographical reference. On balance, they have been successful. If you ask any of my colleagues, they will probably point to examples where the feeling was that an English or, possibly, a metropolitan London agenda had tended to dominate, but I think the majority view would be that on balance they do pretty well in a situation where those tensions are inevitable.

Alastair Sim: Could I add a comment? It is going slightly beyond the research councils towards the overall research effort that has been targeted not just through Government investment in the research councils but also through the Technology Strategy Board. It is fair and correct to say that the UK Government have been exemplary in making sure that investment in research in Scotland has continued. There have been plenty of new initiatives coming on stream in the past year. We have succeeded very much, for instance, through the Research Partnership Investment Fund. The UK Government have been exemplary in making sure that even in uncertain constitutional times they are still expressing confidence in the Scottish research sector.

Q4265 Lindsay Roy: Alastair, can you imagine, if there is separation, a rest-of-the-UK Minister saying, "We are allocating from x million pounds of research funding 13% to a foreign country-Scotland"?

Alastair Sim: I would like to start by reflecting on the positions that both the Scottish Government and the UK Government have taken in their respective publications: first of all, the Scottish Government’s "Scotland’s Future" White Paper and, secondly, the "Scotland analysis" paper on research and innovation. What is interesting in both of those papers and from different political perspectives is that they have left a space which, in a sense, is common between the two Governments for potential negotiation of arrangements to maintain a shared research infrastructure.

The UK Government paper is expressed quite carefully-obviously not pre-negotiating-in terms of saying that, if this were to happen, it is something that would have to be negotiated between the two Governments. The Scottish Government’s White Paper is also quite clear that, if there were to be that negotiation, it would also include a negotiation between the Governments about a fair price for Scottish participation in a continued common research infrastructure. You cannot answer what is going to happen unless and until there are post-referendum negotiations, but there is at least a common space open for potential negotiation of arrangements that keep the UK-wide research system working for the benefit of each part of the UK.

Q4266 Lindsay Roy: Would you accept that it depends very much on good will?

Alastair Sim: Yes. It would have to be the outcome of negotiation. I don’t think that any of us are in a position to anticipate what the outcome would be.

Q4267 Lindsay Roy: We will come on to this later, but, if it transpires that the Scottish Government tried to ensure that the English population pay fees and the rest of the EU do not, is that good will likely to continue?

Alastair Sim: I am sorry, do you want to come on to the fees issue in detail now?

Lindsay Roy: I just want a response from you. Is that good will likely to continue?

Alastair Sim: You mean the fees arrangement?

Lindsay Roy: Aye.

Alastair Sim: The Scottish Government has published its position. If they are to rest on a basis of objectively justifying differential treatment, a lot of thought and empirical work needs to be done to work out how you would do that. We, from the university sector, will be looking very closely at that to see whether there is, at the end of it, a robust defensible position.

Q4268 Lindsay Roy: If there is discriminatory treatment, is it likely that the good will will continue?

Alastair Sim: The negotiations between the UK Government and the Scottish Government, if there were to be a yes vote, are going to be complicated in all sorts of ways, but I am not in a position to anticipate what the ultimate outcome of those might be.

Lindsay Roy: That is question avoidance.

Q4269 Chair: Professor Raffe, are you wanting to come in here?

Professor Raffe: I don’t know whether you want to stay on the fees issue or to go back to-

Chair: We will come to the fees issue later. I think Lindsay was jumping the gun a wee bit.

Professor Raffe: I want to raise a point about the 13%, which is that it actually refers to competitive funding in responsive mode. If you take account of infrastructure funding and research centre units, the figure is somewhere between 10% and 11%, which actually makes the negotiations rather more realistic.

Chair: Between 10% or 11% of?

Professor Raffe: Ten per cent of research council funding which comes to Scotland-to Scottish institutions.

Q4270 Chair: That is more than Scotland’s population share.

Professor Raffe: Yes. There is a question that will be part of the negotiations, which is whether the 8% population share is actually the appropriate figure. If we measure Scotland’s share of the science base-some of the clients for the research councils-it could be something like 10% or 11%. You can calculate the figures in all sorts of ways, and I am sure that people will if the negotiations ever happen, but, nevertheless, it is probably larger than the population share, that is to say Scotland’s share of the science base-the clients for the research councils. Therefore, I can see a situation where you could have a negotiation that led to a situation where, at least in terms of current spending, the money that was paid in, roughly speaking, matched the money that was coming back to Scotland.

Professor Pennington: I emphasise how complicated the situation is. For example, I think the institution where I worked in Glasgow is not owned by the Medical Research Council, but the salaries of the staff in that place are paid by the Medical Research Council. There are all sorts of issues there. If you have a negotiation about who owns the building, for example, it will be different from the negotiations about who continues the research project, although I understand that the MRC is putting in money for infrastructure in the next year or two to move the focus of that institute. When I was there it was human virology; now it has moved over to animal virology. It is a changing situation and a complex one, and there is no simple straightforward formula that one can apply to this, except to say that Scotland gets more than its population share of funding through whatever route the MRC, for example, or the other research councils use to allocate it.

Q4271 Chair: Mr Sim, earlier you referred to the hope that a cross-border system could be maintained. Are you in agreement with the proposals in the Scottish Government’s White Paper?

Alastair Sim: The Scottish Government’s White Paper sets out the right aspiration, and that is an aspiration that is also left space for in the UK Government’s paper on research and innovation. Certainly from our point of view, we are a set of institutions who are deeply involved in cross-border relationships, and cross-border relations that actually benefit the rest of the UK as well as benefiting Scotland, because so much of the best research-for instance, in biomedicine-is done in Scotland. We see it to be in the common interests of all of what is currently the UK for that eco-system to be sustained.

Q4272 Chair: We have heard that more of the money comes to Scotland than Scotland’s population share. Why do you think it would be in the rest of the UK’s interest for that to continue? Would they not be wanting to attract some of that work to the rest of the UK?

Alastair Sim: As David said, if you take the UK Government’s own figure, which is that 10.7% of research council expenditure is in Scotland, you are not in a vastly disproportionate area. You are in an area where you may have a marginal difference between what you might formulaically consider to be Scotland’s share and what actually comes to Scotland. It is an area where you are in negotiable territory if both parties wish to negotiate a settlement.

From our point of view, from the point of view of people who are leading universities that are involved in massive cross-border collaborations-for instance, Dundee’s drug discovery unit is working very closely with Imperial College, London, and Cambridge-Cambridge and London would be diminished by not having access in a seamless way to the expertise that scientists in Dundee are bringing to those problems. There are all sorts of relationships where the work that has been done in universities south of the border is substantially strengthened by their ability to have seamless collaboration with their peers at top-class Scottish universities.

Q4273 Chair: But how much research council funding at the moment goes to universities outwith the United Kingdom?

Alastair Sim: I could not give you a figure on that. What we have been saying to both Governments and their political parties, very clearly, is in our paper published in 2012: "Universities in a dynamic constitutional environment." We have had these conversations with both Governments and political parties; what we have been saying equally to everybody is that there is a common value to all parts of the UK eco-system in actually having an environment that enables these research collaborations to continue in as seamless a way as possible.

Q4274 Chair: I do not expect you to give me the exact amount of UK research council funding that is spent outside the UK, but can you give me a rough percentage?

Alastair Sim: I wouldn’t be able to give you a figure on that. I am sorry.

Professor Pennington: The MRC has a unit in Gambia, which it has had for many, many years. That, obviously, brings benefits to Gambia because they provide part of the Gambian health service in a way, although it is there for pure research; if you want to do research on malaria, you have to go to a country like that in the tropics and so on. The research councils have extensive links with, for example, European funding agencies and so on. The UK Government put a lot of money into Europe for research purposes.

There is an enormous amount of effort at the moment in terms of collaboration outside the UK. I cannot give you a precise sum, but it is reckoned that about 40% of much of the research is done on a collaborative basis, either within Scotland or within the UK or between researchers in the UK and researchers in Europe. That is done for a variety of reasons. Sometimes you need access to a facility that is not in the UK, so you enter into a collaborative arrangement to use it. I could quote the example of the European Molecular Biology Laboratory, which is part-funded by the UK Government, which puts in about 20% of the funding of that organisation. One of its out-stations is in Cambridge where they do DNA sequencing, but there are also out-stations in Heidelberg and Grenoble, which provide radiation facilities and so on. That is the kind of international collaboration that has been going on for many years.

The issue, as I see it, within Research Councils UK, is the amount of money that comes to Scotland, which is very substantial, out of that UK pot at the moment. There is also the issue of scale. If you are competing on a bigger scale, you are going to be more competitive than if you are competing on a small scale. Those are issues that have to be considered in terms of the advantages of keeping the system that we have at the moment.

The disadvantage I see in terms of negotiating that is that it would be totally novel. I don’t know of any other pair of countries in the world that agree to share their research, researching funding and research policy in the same way. Every country has its own research infrastructure. It may well share with other countries, and it does; the Nordic countries have a small pot of money that is used for collaborative work between people in different Nordic countries. It is not that a Norwegian can apply for Swedish research funds, but a Norwegian and a Swede working together on a joint project can apply for a relatively small sum-tens of millions of pounds. There are plenty of international examples of co-operation between nations, scientists and research groups, but I don’t know of any country in the world that does not have its own research infrastructure and funding for its own ends, as it were.

Professor Raffe: I said that we had been talking to a number of people around the Scottish system, including principals of universities, but other key stakeholders as well. The one bottom line they would all stress with respect to any constitutional change would be preserving this research-not just research but the academic eco-system and a lot of the joint and collaborative activities that take place. I am particularly referring to the UK research councils but to a lot of other things, such as joint bodies, and the more qualitative and less formal aspects of collaboration as well.

The other thing that does come across is that a majority of the views that we have been hearing suggest that it is feasible.

Q4275 Chair: By "feasible," do you mean a formal pooling of resources or co-operation without a formal pooling?

Professor Raffe: There is a view that the eco-system can be maintained, in the case of the research councils, with a formal pooling of resources. Professor Sir Ian Diamond, who is a former chair of Research Councils UK, is on public record as saying that he does not see any great practical difficulties. Obviously, there are going to be negotiations over the amount of money that each party pays. To answer your earlier question, there would be a perceived mutual advantage in doing that.

I would like to make one final point, although you may be coming on to this. Although funding is part of that eco-system, it is not the most important part. The most important part is opportunities-the facility of collaboration, access to shared facilities and the various quality assurance and assessment systems that operate across the various borders. There is also what you might call the more informal infrastructure of the learned societies and so forth, which exist UK-wide, although they are often much wider than that. It would be as important, if not more important, to maintain that eco-system in this rather broader and more qualitative sense than to worry about relatively small margins of funding.

Q4276 Lindsay Roy: The White Paper is an immense tome of 670 pages. As far as I can gather, about three and a half pages of non-repetitive consideration are given to science and research. Does that not imply that at the moment a lot more needs to be done to clarify the position? For example, there is no mention of a Cabinet Minister or a junior Minister post.

Professor Raffe: I did not author the White Paper. I do not claim any responsibility for it, so I cannot answer for the authors. It is fair to say that it does cover enormous territory even in those 600-odd pages.

Q4277 Graeme Morrice: I was going to ask a supplementary question similar to the one just asked by Lindsay, which is with regard to the comment that Alastair made earlier about the White Paper. He said that, in respect of cross-boundary working, the White Paper had the right aspiration. Is there much in it by way of detail to achieve that? It seems from what Lindsay was saying a few moments ago that there is not much in it by way of detail. What is in it in terms of the detail-the means towards the end, rather than just the end itself? There is lots of aspiration within the White Paper, but it may perhaps be just a wee bit short on detail.

Alastair Sim: As I said, it is communicating the aspiration that the sector has set out itself for maintenance of a common research eco-system. I honestly don’t know how much more one could say in advance of negotiations. If there were to be a yes vote, there would be tough negotiations and I am not quite sure how far the parties to those negotiations would want to set out their hand in detail in advance of starting them.

Q4278 Graeme Morrice: As we say in Scotland, people don’t want to be buying a pig in a poke. They want to know beforehand-before they vote-what they are going to get at the end of the day. I don’t think that anyone in this room or many people in Scotland have all the answers, and that may be part of the problem. Would you, maybe, agree with that?

Alastair Sim: Essentially, a lot of the answers would only emerge from the process of negotiation.

Professor Raffe: Also, a lot of the answers will only emerge from engaging with the organisations concerned, although I can only give anecdotal evidence of what I sometimes hear in the wind, which is that a lot of them are rather slow or certainly slow to engage publicly on these issues, often for good and understandable reasons. They don’t want to appear to be exposing themselves. Sometimes I get a sense that they are hoping that the problem will go away or will somehow solve itself.

Professor Pennington: I waited for the White Paper with anticipation to see what it was going to say about these very issues. As somebody who has been on MRC committees, I know the dynamic of those committees. If you have earmarked money, for example, sometimes that does not do too well in the review, because researchers will look at it with a slightly jaundiced eye.

The committee that I was on had earmarked funding for overseas research. It seemed that the parasitologists and the malariologists did extremely well because a lump of money was set aside for their projects, although there was a rather small number of applications. I would not see it as a way forward for Scottish research funding to be earmarked in a committee, but those are the sort of things that would have to be addressed. Do you put a lump of money in, and then research in Scotland is funded out of a lump of money that is agreed already between the two treasuries, or is it paid in arrears? Those are the sorts of issues that one would have to address very early on in any negotiations if you have a joint system. There is no precedent that I know of to set it up, because all the collaboration work we have been talking about is collaboration between scientists. Here 50% to 60% of that work is by individual scientists.

I would like to make not the counter-argument but the argument that whenever a Nobel prize is given there is always dispute about priority and so on; scientists are very individualistic, because they are competing with their peers and so on. That has to be taken into account as well. If you have a joint system, you have to be very careful that, however the funding is set up, it has to be seen as giving equal opportunity to all the applicants in terms of where they are coming from-in terms of their nations. I would see that as a major difficulty in any negotiations-how to square that particular issue.

Q4279 Chair: On the negotiations, the Scottish Government’s timetable is referendum September 2014 and independence March 2016. In terms of how far ahead you have to look in applying for research grants, are 18 months long enough for these negotiations to reach a successful conclusion? Do you have any views?

Alastair Sim: I honestly don’t know.

Chair: Professor Pennington is shaking his head.

Professor Pennington: I hope that the system would roll on as it is now until resolution was obtained. It may take many years to get resolution, because the devil is going to be in the detail as to how you get a system that does not disadvantage one side or the other. I would hope that, whatever happens, the current system continues. Clearly I have the view that I hope the current system continues because the whole system continues.

My worry, if I can put it as a rider to my answer, is that over time, the two nations, if they separated, would diverge in policy. That would put pressure on a joint system in terms of keeping it going. That is my concern about the future. The immediate future would not be too bad for the scientists, because neither side would want to disadvantage the scientists. In the fullness of time, the negotiators will have to take into account that policies might diverge on all sorts of issues affecting research.

Q4280 Graeme Morrice: It seems from what Professor Pennington is saying that, with regard to research collaboration, there is certainty if the UK continues as it is, but, if we have separation, the collaboration becomes uncertain. Would you agree with that?

Professor Pennington: It depends on which route you are getting your funding from for your collaborative projects. There have been an enormous number of supranational organisations available from which you can get funding anyway. Within the current UK, I don’t think it would enhance it, although I can quote the example of a research institute that I know well where two Hungarian staff were kept on because it was an advantage when applying for European money to have somebody from new European countries. You could work a system a bit like that, but that is not really a very sensible way of having a research policy initiative. I cannot see it enhancing collaboration, except perhaps through these rather peculiar multinational organisations.

Q4281 Graeme Morrice: Do Professor Raffe and Mr Sim agree with that?

Professor Raffe: We have talked about the short-term/long-term issues. In the short term, the biggest danger is a massive diversion of effort and resources, which obviously will affect the people organising research primarily, but would also, to some extent, affect the people who actually should be doing the science and driving things forward. Whether collaboration is affected in the somewhat longer term will depend, essentially, on the success of any negotiations in maintaining the eco-system that we have been talking about. If that was maintained, if there really was a UK research area, I would be reasonably confident that we would see existing levels of collaboration persisting.

An additional point is that we are in any case seeing an increasingly global reach for research. The latest figure I have seen, which is a few years old, was that 48% of Scottish research papers are co-authored with someone from outside the UK, not just from outside Scotland. We are seeing, for example, a slowly growing source of funding in Europe and in other bodies. This European and global dimension of research-research funding and research organisation-will continue to be more important.

Alastair Sim: I think David is right. Researchers are just by nature collaborative. They will burrow through and make collaborations wherever collaborations can be made to their advantage. If you look at the UK Government’s "Scotland analysis" paper, it points out that 46% of published or cited papers are internationally co-authored, so people find a way through the system.

To pick up on both Hugh’s and David’s points, what would be essential, if there were to be a vote for separation and if there were to be a period of negotiation, is that there is some way of keeping things going that parallels what is happening at the moment, through that period of negotiation, so that you don’t end up with the accidental creation of a period of planning blight. That would take hard work and good will from both Governments.

Professor Pennington: Could I make the point about the research councils being very successful, which I do not think we have dwelt on? The advantage of keeping the system as it is at the moment is that the research councils, in terms of the money they spend, deliver extremely good results. If you compare, for example, our research system with European research systems, it is more successful in terms of the money spent and the outcomes in terms of peer-reviewed papers, discoveries, Nobel prizes and so on.

My concern, obviously, is that any break-up of that system would diminish the likelihood of that success continuing. That is an important factor that has to be taken into account; the system we have at the moment is extremely successful by world standards, but changes to it would have to be looked at extremely carefully if we do not want to jeopardise a system that has evolved since the 1920s. The policies have changed quite substantially over that time, but they have changed in an evolutionary fashion rather than a revolutionary fashion.

Chair: That is a good point.

Q4282 Mike Crockart: That leads quite nicely to the subject that I was going to raise anyway, and it harks back to something that Professor Raffe said earlier on. It is to do with the process by which the research council, through peer review, allocates its funding. You seem to be saying that Scotland did all right, that it did not have problems in getting funding for projects that are Scotland specific, but that is not a universally shared opinion. For example, Professor Salter, I know, feels that the type of research that he was looking to do and the peer-review process that it went through effectively stifled that innovation going ahead in Scotland. Are there issues like that?

Professor Raffe: I think Professor Salter and I were talking about two slightly different levels of the process. I was talking very much about how a selection panel, a body of referees or an assessment board would review a particular proposal. I was saying that in any policy-related area there is always a concern, but usually the councils manage.

Q4283 Mike Crockart: At the project level is there ownership?

Professor Raffe: I think Professor Salter’s concern is much more about the overall national distribution of resources. Obviously, he is concerned about the share that energy receives-renewable energy, in particular-relative to some of the other broad areas of research. There is an issue as to whether Scottish interests have as much weight in a research council that is still, essentially, framed by the UK in the way it makes policy, or whether a buy-in arrangement, which nevertheless had pooled funding but allowed the Scottish Government a more explicit role in shaping that policy agenda, would or would not increase its influence. I have no idea what the outcome of that would be, but there is an issue.

Professor Pennington: Professor Salter raised an issue I was familiar with when I was dean of a medical school, because people used to come to me and say, "We are not doing enough research on osteoarthritis," or whatever it was, and my response was always, "What do you propose that we do?" You do not do research just because a problem is important, although that is one of the drivers; you do research because you are likely to come up with an answer that is going to help patients with osteoarthritis, for example. People have been struggling with it for 100 years and not come up with the magic bullet, as it were. Professor Salter was obviously concerned about prioritisation in that sense. I was slightly sceptical.

The other issue he raised was the way in which research councils and other research organisations deal with unsuccessful applications. I think he was complaining that you could not reapply and so on. I would just point out that the European research organisation is tightening up its rules on that, and making it much more difficult for you to reapply, because that is part of the game that researchers play. Clearly, you want as many chances as you can have of getting your project looked at if you are unsuccessful. You can only have one or two goes at the cherry before you have to go away and redesign your thoughts.

Q4284 Mike Crockart: I think his reaction to that would be that it penalises those who are ahead of the curve, and perhaps thinking ahead. If your application is not understood, it takes a while for the peer-review system to catch up, by which time you have had your bite of the cherry.

Professor Pennington: Yes. It comes back to what I was saying about how a research council committee works. You look at the project itself and see whether it is a feasible project. You also look at the quality of the researcher’s research in the past, which gives you an indication as to whether they are likely to succeed. You also look at the institution where they are working to see whether that is going to be an appropriate place for that research. You would also look at the collaborators they may have on board as well. You look at that as a whole picture. It is down to the people on the committee.

The way the committees work is that there will be a lead person who will look at the project in detail, supported by somebody else, and then the whole committee will discuss their opinion of that, and also whether it fits with the overall policy of the research council. It may decide that it wants to have an initiative in a particular area. Those are often not successful, because they are having an initiative in an area which has not attracted much research because there aren’t many researchers in the field, so you may try to go out and stimulate some new research.

It is quite difficult to give support to somebody who is coming with a totally novel idea without any track record, but there are starter schemes, both in the research councils and in the European funding system, to enable that to happen, to get people going from a base when they really haven’t got much of a track record. That is taken account of. The research councils, I think, are quite good at that; they fund studentships and so on, which enable people to get into the research system, although mentors are important as well.

Q4285 Mike Crockart: Accepting that all three of you want to see the current situation, where there is a UK-wide research council giving grants across the whole of the UK, by whatever means we get to that final resolution, that might not necessarily be the end result. If we did end up with a Scottish research council, what would be the benefits, advantages and disadvantages of that?

Alastair Sim: Could I tackle that in two ways? First of all, even if there were to be successful negotiation, in the event of a vote for separation, of a common research framework, there may still be something that could usefully be done about a supplementary Scottish research council. At the moment, the Scottish Government has various pots of research funding, whether it is for health or, particularly, for some agricultural science. Arguably, those could be better brought together in a single research organisation that would be able to take a less siloised view about how you deploy the resources available to the Scottish Government.

Mike Crockart: A less what view? I am sorry.

Alastair Sim: Siloised.

Mike Crockart: Thank you. I didn’t know that word existed.

Alastair Sim: There may be merit there. If there were to be a yes vote, and if negotiations on maintaining a common research infrastructure were to be unsuccessful, which is not our preferred outcome, the important thing is that the Scottish Government put adequate resource into maintaining Scottish research. Other small countries have been able to do that. We would urge very strongly that the Scottish Government, for the interests and the good of Scotland as an ideas-driven, outward-looking economy, put enough money into research through whatever mechanism it is, whether it is called the Scottish research council or whatever, to make sure that we can continue to be a nation that is absolutely at the forefront of the generation of ideas.

Professor Raffe: The pros and cons? The advantages are clearly that it would make it easier for Scotland-I say "Scotland" rather than the Scottish Government-to set Scottish-specific priorities for funding. There are some who have argued-I am not sure that I am really in a position to judge-that some of the smaller research councils have been more nimble and more able to respond quickly to new opportunities.

There are a number of disadvantages, some of which have been suggested. Clearly, there is an economy of scale issue; it would be harder to run such an organisation in as efficient a way as UK Research Councils is funded. There would be issues with respect to what we do about some of the large facilities that would be needed to support research. I don’t think that finding referees would be an issue. In the last few years, I have spent more of my time refereeing for other foundations or research councils for small European countries than I have done for UK research councils. Refereeing is already an international process.

I want to put an item on the agenda because it relates to wider things, and particularly this: if Scotland were removed from the present eco-system and research councils in particular, it would make the position of Northern Ireland and Wales quite critical. We have heard quite a lot of concern from people in Northern Ireland and Wales about the implications of Scotland leaving for the critical mass that they would then be confronted with in England. That would affect the deliberations of research councils. It would affect deliberations at other levels of the policy system.

Q4286 Mike Crockart: Effectively, they would feel slightly sidelined as a very small part of a large set-up.

Professor Raffe: They would feel sidelined. Can I be a little bit anecdotal? I am a member of one of the panels concerned with our research excellence framework. The education panel has quite a good representation; we have five or six people from Scotland, two from Wales and one who has just rejoined from Northern Ireland. Education is a classic case of the area we were discussing before, where you could have English agendas or you could have Scottish agendas and they do not always overlap, or at least do not always completely match each other. There is a very good understanding around that panel that we are not going to be Anglo-centric in the way we judge. We are going to be very sensitive to the differences across the UK. If there were only a couple of Welsh members, as opposed to the large critical mass of members from the other devolved countries, I am not sure that it would be as easy to get that clear agreement. The lack of critical mass of Wales and Northern Ireland in this wider UK context would be rather tricky.

Professor Pennington: Could I come in on that with an actual example of how Scotland, Wales and Northern Ireland join together to, in a sense, not neutralise but affect an English view? The Food Standards Agency was set up on a UK basis, although it is not reserved, and there were Scottish, Welsh and Northern Ireland advisory committees but not one for England. I am not quite sure why that was done, but that was the way it turned out. The problems in Scotland, Wales and Northern Ireland are slightly different in terms of food because we have slightly different microbes and so on, but essentially there is not very much difference. The big problems are the same. The small problems may vary.

We felt in Scotland, Wales and Northern Ireland that we were not being quite heeded enough in Aviation House, in Holborn, so we formed our own SWANI group-Scotland, Wales and Northern Ireland-and went to see Lord Krebs when he was the head of the Food Standards Agency. I think the combined weight of those three nations did have an effect. We did not get what we wanted, which was changes in the policy on pasteurisation of milk, but that is another issue. The joint approach of those three nations did have a mitigating effect against an Anglo-centric organisation, although of course Scotland is planning to move out of the UK Food Standards Agency and set up its own.

Q4287 Mike Crockart: Turning to the subject of collaboration, because you have all mentioned the importance of collaboration, especially cross-border, Professor Pennington, you have expressed some concerns about whether that collaboration would be able to continue quite as easily post-independence. Is there more that you can say on what your concerns are about that?

Professor Pennington: Because it would be international collaboration, it would depend on how the research was funded. If Scotland could not keep part of the common research area, you would have to have mechanisms set up to ensure that collaboration was funded across the border, as it were. There is nothing difficult about doing that, but you would have to set it up. It might even encourage collaboration in certain areas, because there might be a pot of money for you to do collaborative research, but I do not believe that collaborative research is necessarily better than individuals doing research. Sometimes it is necessary because you need to get access to another population, for example, to do population studies and that kind of thing. At the moment, you don’t have to raise that as an issue within the UK.

If I want to collaborate with somebody in London or Belfast, you just do it and you put in your joint application. If you have to do it across a boundary, that would be a different kind of dynamic and extra work for the scientists. Having said that, there might be a pot of money for that particular kind of research, which does exist, for example, in the Nordic countries. That might encourage people to do that kind of collaborative research, but it would not necessarily be in the interests of science, because collaborative research in itself is not good; it depends on the topic that you are studying.

Q4288 Mike Crockart: What would be the difference, for example, for the collaborative projects at the moment across the European Union? Is there a different level of difficulty in managing to get collaborative projects up and running?

Professor Pennington: No. There are quite a few schemes available where negotiations have led to one country providing the main assessment of a research project. As long as the first country’s assessment project is okay, the other country will then agree to fund its share of the collaborative work. You have to set up a mechanism to do that. For example, the research councils have agreements with Brazil; if a Brazilian researcher wants to collaborate with a UK researcher, the UK will assess the research and then the Brazilians will put in whatever share of the funding it is for that project to fund that Brazilian researcher.

Q4289 Mike Crockart: How key is collaboration across the UK to the success of higher education science and research?

Alastair Sim: Genuinely, I think it is extremely important. The dense networks of collaboration that have been built up between researchers across the UK are part of our genuine collective strength. We would want them to be supported through some form of common research infrastructure. Given the density of the collaborations and also given the density of collaborations that researchers have with their peers overseas, I suspect that, whatever happens, there is going to be a collaborative way of doing research. As I said before, it is just in the nature of the exercise that people will find the best people and the best facilities they can access. There may be boundaries that you have to cross to do that, but, in general, people will cross a boundary if it is going to get them the right result.

Q4290 Mike Crockart: Apart from the fact that if they cross the boundary it may affect their funding. When you get to the nub of the problem, if crossing a boundary causes issues about where your funding is going to come from, surely it causes some sort of issue about the collaboration.

Alastair Sim: Which is why the optimum way forward, if there were to be a vote for separation, is to negotiate a common structure.

Professor Raffe: There are issues about whether you are going to get the funding. There are also issues about whether or not it is going to get administratively a lot more complex to cross the boundaries. As my colleague has been saying, in some contexts that might not be the case, whereas in some contexts it might be. I would want to use the term "collaboration" to refer to a rather wider range of activities than simply working together on a particular funded project.

Collaboration, very importantly, is being part of a single academic community, which exchanges papers, which discusses, which referees, which assesses and so forth jointly, and which visits and all of that. There is a much wider social network of science research, much of which does not depend quite so directly on Government. There is always a danger that we are focusing on the role of Governments and constitutional arrangements in shaping research and in shaping the university system; actually, the main things that shape university systems are not Governments but academics, and the ideas that drive them and the social context in which they work. We must always bear that in mind.

Q4291 Graeme Morrice: As we know, the UK has a reputation as a world-class research environment. Indeed, the UK punches well above its weight within the world, and is second only to the United States. From what we have discussed, it seems that Scotland punches well above its weight within the United Kingdom. What do you think would be the risk, if any, to Scotland’s reputation for research if Scotland leaves the United Kingdom and also the research excellence framework?

Alastair Sim: I think the reputation of our research will be as good as our research is. If by whatever mechanism we are funded to continue to produce world-leading research, we will be known for producing world-leading research. I am sorry, what was the second part of your question?

Q4292 Graeme Morrice: In terms of Scotland’s reputation, if we become separate from the UK, we would also be separate from the research excellence framework.

Alastair Sim: The view that we set out when we published our position on the policy issues associated with potential constitutional change was that there would be advantage to the UK as a whole if maintaining the research excellence framework, or maintaining at least some form of internationally recognised review of the excellence of Scottish research, were part of a settlement in the event of independence. The fact that we can actually say that there is a mechanism that is well regarded internationally that says, by objective criteria, that our research is world-leading, has some strength to it.

Professor Raffe: I don’t think our reputation depends on the fact that we have done well or badly in the research excellence framework itself. The issue underlying your question is whether being part of those processes actually does maintain and sustain the quality of Scottish research.

Graeme Morrice: Exactly.

Professor Raffe: That would be my first point. With respect to things like the REF, you will find quite a lot of different views within the academic community. There are some people who believe that it has outlived its usefulness. It certainly is a costly exercise. I am not sure whether it is always justified in all the things it is trying to do. Some of those inputs to the quality of the system could be substituted or done in different ways, either within a UK framework or just within a Scottish framework.

As to the reputation of Scottish research, it is worth referring to a recent British Council study, which made the point that Scotland, Scottish research and Scottish higher education is not as internationally visible as you might expect it to be, that there is a fudge in people’s perceptions. One way of putting it would be to say that the UK brand is rather stronger than the Scottish brand. That is, obviously, with respect to international students, but it is also with respect to how the research is perceived. You could argue, although I wouldn’t want to press this one too hard, that Scotland on its own might have slightly more of a reputation because it would be more visible as an entity.

Professor Pennington: Could I raise the Edinburgh issue? Of all the universities in Scotland, Edinburgh stands head and shoulders above the others. I am sorry to say that, because I worked at Glasgow for 10 years. Glasgow is very good.

Mike Crockart: It’s okay. I was born in Edinburgh.

Professor Pennington: Edinburgh would be the big loser. If research council funding disappeared, Edinburgh would have a very, very hard time because it gets more money for research and a larger chunk of that comes from the research councils than it does from the Scottish Government. There is an issue there. As to the Scottish reputation, it is more a reputation built on individual institutions, which have their strengths. Edinburgh, clearly, has great strengths across the piece, with Higgs putting the ultimate accolade on top of that.

Other universities are stronger in fewer areas. Aberdeen sees its medical school as being a particular strength and so on. To say that there is a Scottish reputation is perhaps slightly unfair to some of the institutions within Scotland where they have very strong international reputations, and go out of their way to sell themselves internationally, to get international students and so on, and also, of course, to sell their research strengths to attract graduate students from overseas in particular areas. To look at it as purely Scottish is always a bit dangerous because it is built up of individual components.

As far as the research excellence framework is concerned, there is a problem if you do not have it, in the sense that how are you going to allocate funds for overheads? The research councils and bodies like the Wellcome Trust, which have an enormous amount of money to spend each year on research, generally do not support the overheads and the infrastructure of universities. That comes from Government. That is determined, essentially, by the scores you get in the research excellence framework, or the RAE, as it used to be called. It is quite a good system. If you look at what happens in the United States, where individual institutions negotiate their overheads with national institutes of health and research bodies, they run into very serious difficulties, with over-egging some of the expenses and so on. There have been scandals and so on, which we have not had in the UK at all, because we have had a much more rational system for delivering the money that has to come along with the research to support the buildings, the libraries, the HR departments and so on.

If we do not have the REF, we will have to have something else. Although people are critical of it, because sometimes they do not do as well in it as they would like, my own view-coming from a university, when I was at Aberdeen, which did not do terribly well in the first research assessment exercise-is that overall the stimulus of improving itself in subsequent years has been enormously valuable in terms of driving the university up in the quality of its research. It is not teaching but research that is measured by the REF.

Q4293 Graeme Morrice: We are aware that in certain small countries like Switzerland and Holland there is strong scientific performance. Does that suggest that research could prosper in a separate Scotland, it also being a small nation?

Professor Pennington: Yes. There is an issue about size. Switzerland has twice the population of Scotland. The one country that has a rather similar system is the Netherlands, whose population, again, is about twice as big as Scotland’s and they went down a similar route of having a research assessment exercise driving funding to institutions.

You will find that in the smaller European countries like Norway and Denmark they do not have that system, and they still give very large sums of money to their top universities-the University of Oslo and the University of Copenhagen-but I think it is on an individual negotiation between the university and their Governments. Those two universities both get a lot more money from the Government than, say, Edinburgh gets from Government sources. It has not actually shown itself in terms of their research excellence. Money is not the only thing, but they cannot complain about the money they get compared with the money we get in the UK and in Scotland. They have other problems as well.

The systems are quite difficult to compare, particularly from the undergraduate point of view, because they have very, very high drop-out rates in those European countries. The best university in Switzerland, the ETH, fails about 50% of students at the end of the first year. Their own published figures are a little vague about what happens to that 50%. In Copenhagen, which is the top Danish university, there is a 25% drop-out rate. Oslo has a drop-out rate in the same region, although it may be a bit higher. It is quite difficult to compare European universities with the UK. We have a much more formal assessment structure and a much more competitive way of looking at funding between institutions than European universities.

Q4294 Graeme Morrice: Taking up that point about higher education, the Scottish Government say that, post-independence, we will be in a stronger position to promote Scottish higher education overseas. Would you agree with that?

Professor Pennington: If they increased their budget threefold, we might be going somewhere. I will come back to the original point I made. The system we have at the moment delivers very well and is very effective in terms of the money we spend. How the Scottish Government, if there was a yes vote, would deal with universities in terms of funding and so on is not at all clear from the White Paper, so I will rest on that.

Q4295 Graeme Morrice: There are lots of things that are unclear in the White Paper. Mr Sim, you want to make a point.

Alastair Sim: Taking up the point about the promotion of Scotland overseas, it could cut either way. At the moment, we have benefits, for instance, through access to the British Council network throughout the world, which gives you very good local intelligence and the ability to set up visits, arrangements and bilateral relationships. That is a real strength, and that strength at the moment is complemented by having a strong British Council Scotland, a strong Scottish Development International, which works very well with its UK Government counterpart, and a strong Scottish brand proposition that really sits within an overall UK brand proposition. That is a positive of the current situation. A negative of the current situation is that the overseas reception of the UK brand has been a bit tarnished by the arguments we are all familiar with about whether we have the right regime to support the migration of high-talent people, including scholars and students.

Could Scotland create its own strong brand? Well, yes. As Professor Pennington said, it would take money to do it. Intrinsically, we have a really excellent proposition, because we have the highest satisfaction rate anywhere, I believe, for international student satisfaction. We have an extraordinarily high-quality sector. We find that students and scholars like being here.

Q4296 Graeme Morrice: You already have a strong brand. Is that what you are saying?

Alastair Sim: Yes, but not as strong a brand at the moment, and which, as David said, has the degree of international recognition that you might expect when you sit in Scotland and think what a great sector it is. There might be challenges in establishing that separate brand, given the extent to which we have been perceived as being part of the overall UK brand. You would have to be imaginative and put the money in.

Professor Pennington: When you look at university brochures, they sell themselves as an individual institution, generally speaking. They do not push where they are, except that they are close to the mountains, sea or whatever, but they don’t push whisky and bagpipes.

Graeme Morrice: It is like Edinburgh council promoting Hopetoun House when Hopetoun House is in West Lothian.

Mike Crockart: By 100 yards.

Professor Raffe: I share what my colleagues were saying about the distinction between individual institutions having a brand, and sometimes individual programmes. Sometimes you could say that Scotland sells itself because of networks-for example, where a number of students come from particular countries, they tend to spread the message by word of mouth. I want to come back to the point that, as a country, Scotland does not have a particularly high visibility as far as higher education is concerned. Then the question is, does that or doesn’t that matter? At the moment, anecdotally, a large number of students, especially from countries like China, come for masters courses. In my own school at Edinburgh university, they tend to say that they come to the UK, and to Edinburgh as a city and Edinburgh as a university. Some of them are more aware than others of the difference between Scotland and the rest of the UK, but some aren’t very aware.

Q4297 Lindsay Roy: Are you saying that the devolved Administration has not promoted universities as strongly as it might?

Professor Raffe: I am saying that, as a brand, Scotland, as an entity, does not have the visibility that it might achieve if it were to be heavily promoted. Would that be the priority? Would you want to promote Scotland as such as an entity? Would you want to promote individual institutions or aspects of the Scottish higher education system?

Q4298 Lindsay Roy: It begs the question of why it has not been done under a devolved Administration.

Professor Raffe: Yes, it does beg that question. To be fair, a lot of effort goes in through bodies like British Council Scotland and others that have been mentioned. It is still the case that a possible inference is that those efforts have not been 100% successful.

Lindsay Roy: Thank you.

Q4299 Graeme Morrice: Would a separate Scotland find it more difficult to attract leading academics from across the world? If so, why, and what would be the consequences?

Professor Pennington: It really will depend on the reputation of individual institutions, as we have been saying. At the moment, I don’t think Edinburgh has any problem in attracting people to come and work there from anywhere in the world because it has an international reputation. It will depend on how institutions develop in the future-whether they will continue to be attractive places to pull people in from anywhere in the world, essentially. Some things will depend on a little bit more than just the reputation of the institution, although that is the overriding thing. Terms and conditions play a part and so on. It also depends on what happens in the rest of the world.

I remember that, when the US turned down its funding very substantially about 20 years ago, there was a surge of American academics coming to the UK because they could see that, although they might not be as well paid as in the US, there were tenured positions that they could apply for and get, because they had good academic track records. It depends on other factors, but I think the primary one is the reputation of the institution as seen in your particular field of interest.

Alastair Sim: Over 10% of academic staff in Scotland are from outside the UK. On the basis of what is happening in our universities, we are extraordinarily successful in attracting international talent.

Q4300 Graeme Morrice: How does that compare with south of the border?

Alastair Sim: It is pretty much typical of the research-intensive sector south of the border. As long as we have universities that are being funded to be internationally competitive, and are being driven with the sense of ambition and the sense of international connectedness that marks you out as a university that someone from across the world would want to come to, as long as we can sustain that through whatever way, Scotland will continue to be a magnet for international talent.

Professor Raffe: I agree. At the moment, it is the university, it is the institution and it is the particular opportunity that will attract the staff. There is a separate issue to do with immigration and visas but, that apart, I do not see any immediate effect.

Q4301 Sir James Paice: Can I turn to the issue of immigration and visas because it is, as you rightly say, important? Mr Sim, your organisation has called for relaxation of the visa regime. Do you believe that the White Paper has addressed your concerns in what the Scottish Government are proposing or, if not, what more would you want?

Alastair Sim: Its intentions are certainly in the right place about making sure that we are as open as we can be to the migration of international talent at student and scholar level. Where are we in relation to UK Government policy? Over the past years, we have had quite a lot of discussion with the UK border authorities, for instance, and I think that the UK regime is evolving.

There was a lot of consultation and conversation, for instance, about the length of time that students were able to study. We had to make the case that when we take, typically, the longer length of a Scottish degree, the initial UKBA proposals had to be relaxed, and that happened. There has been a bit of movement, but there is still a problem for the UK in that we are not as competitive as we could be in relation, for instance, to the United States, Canada or Australia in entitlements such as being able to stay on post-study for a work period or bringing your spouse with you if you are doing a one-year masters, which, typically, people would quite often be doing at a fairly mature stage of life. There are things that can be done, whether within the framework of the current UK Government or in a different constitutional settlement, to look harder at whether our regime for student migration and high-talent migration is as competitive as it needs to be in relation to our international peers.

Also, we need to keep an eye on whether problems are emerging in terms of recruitment and retention of international scholars. There was some concern about that during the past couple of years, particularly with the limited number of sponsor licences that institutions have for staff from outside the EU. A careful eye needs to be kept on that to make sure that we are keeping our doors visibly open to high-talent migration. Frankly, the migration of people and the migration of ideas is the lifeblood of the university. It is what keeps us vibrant and internationally connected. We need to be careful that we are not stifling that.

Q4302 Sir James Paice: I happen to agree with you on that. Is it feasible, if we were to have an independent Scotland after a yes vote, that you could have a different system, a different regime-not just for visas but, as you say, for sponsorship and all the other things, in Scotland as opposed to what would then be the rest of the UK? There would be two separate countries sharing a common border, assuming that there is no border control or barriers.

Alastair Sim: I am not going to pretend to be an expert, but within the common travel area there are differences between the Republic of Ireland’s approach and the UK’s approach. For reasons of that free exchange of talent, maintaining a common travel area throughout what is currently the UK is very important. I am not in a position to make a judgment as to the extent it reflects the ability that one might have within that common travel area to reach the solutions that would be most appropriate.

Q4303 Sir James Paice: If you were very successful with a more relaxed regime attracting a lot more international students, what impact would that have on the availability of places for Scottish students?

Alastair Sim: Absolutely none. Essentially, universities are funded to take in a certain number of Scottish students. We have target figures for that. If we undershoot them, universities lose money. If we overshoot them, universities lose money. Nobody else can displace those places. Essentially, given that international students, as well as bringing an intellectual contribution, are bringing a financial contribution, it enables universities to put in place a degree of additional capacity that enables them to take in a margin of international students, which, from the universities’ point of view, is all part of creating both a vibrant intellectual and cultural mix and a financially sustainable model for keeping the university going.

Q4304 Sir James Paice: Does that explain why, if my information is right, last year when there were a lot of clearing places available-I should say "open places"-Scottish students were not able to apply for them through the clearing process?

Alastair Sim: That was not related to international students. It was related to the capped number that we have of places for Scottish-domiciled students in relation to the uncapped number of places for students from the rest of the UK. It was a slightly different picture from how it looked in the press, because clearing opened earlier for Scottish students. By the time English students had their exam results, most of the Scottish students who were looking for a clearing place had already got one.

Universities were trying to fill up any available capacity they had with rest of UK students as a supplement, having already filled the maximum number of Scottish students they could take on. So there was a slightly different picture from what you might have received in the press; it was one where the number of Scottish students who got in through clearing was in the thousands and the number of English students or rest of UK students who got in through clearing to Scottish universities was in the hundreds.

Professor Raffe: I endorse that. With respect to what happened last year, there was no direct displacement, because the cap had already been applied.

If I can come back to your opening question, I mentioned that we had been talking to various stakeholders and key figures around the system. When asked about independence or the prospect of independence, one main reservation or condition they would insist on, which we have already discussed, was concerned with the eco-system for research, in particular, and the various collective relationships.

One opportunity, which I think a number of people in the system will recognise, is having looser controls on immigration. There is a perception at the moment, both with respect to staff and students, but especially students, that existing controls are seen to be inhibiting and cramping Scotland’s ability to compete, not so much south of the border but with institutions elsewhere in the globe where overseas numbers are increasing much faster.

Q4305 Sir James Paice: Okay. Can I change the subject and go back slightly to the whole issue of co-operation-not about funding, but about facilities? In the event of a yes vote, are there facilities in what would then be the UK which you would be concerned that Scottish institutions would not have access to? Would there be any implications for that?

Alastair Sim: It comes back to maintaining that eco-system. There are important facilities in both countries for scientists across the whole UK. If you look, for instance, at facilities at places like Harwell, Rutherford Appleton, or Daresbury, there are really important facilities in England for researchers across the UK. If you look at the super-computer at Edinburgh, or the Astronomy Technology Centre in Edinburgh, or if you look around Scotland at Medical Research Council centres in all sorts of areas, like epidemiology, genetics and reproductive health, there are really major facilities of common UK benefit in Scotland. What we have said consistently is that you need to maintain the eco-system. You need to maintain access for researchers to cross boundaries to facilities, whether they are in Scotland or elsewhere in the UK, that are currently working strongly for the benefit of researchers throughout the current UK.

Q4306 Sir James Paice: I confess I have never heard your phrase "eco-system" applied in this context, but never mind. In the event that the eco-system was not maintained, does it follow, therefore, that Scottish researchers could well suffer from lack of access-you would probably say the same for the rest of the UK?

Alastair Sim: I would say it is also the same for the rest of the UK. There is a common interest in making sure that wherever the facility is, either side of the border, it is something that can benefit the people who use it.

Q4307 Sir James Paice: What about international facilities where there is some form of treaty arrangement, like CERN, to which, obviously, the UK is party? Do you know what the arrangements would be for an independent Scotland? Would they have to renegotiate entry to such a treaty?

Alastair Sim: There are two models-take CERN, take the European Southern Observatory-where that could work. One, which is probably the optimum model, is that, if you are buying into a shared continuing supranational infrastructure, that becomes a model by which a subscription is paid to CERN or to the European Southern Observatory. Research Councils UK pays the subscriptions at the moment. If our optimal solution were obtained, that would be part of that negotiation. The alternative is that you just have to stump up the money directly. When the Czech Republic and the Slovak Republic separated, Slovakia quite quickly bought back into CERN, for instance, and the European Space Agency, if I remember rightly. It is just the case that you have to make the individual arrangement and pay the sub.

Q4308 Sir James Paice: But it is only a matter of stumping up. There are not any other obligations that you would have to enter into. That is why I used the word "treaty."

Alastair Sim: I would not pretend to know the full details of the contractual arrangement. Nothing appears to have been an impediment to people joining, whether they were in the EU or not.

Q4309 Lindsay Roy: Alastair, can you briefly set out the conclusions of the legal advice that you have received on tuition fees?

Alastair Sim: You have probably seen it.

Lindsay Roy: I think we just want it on the record here.

Alastair Sim: We have published openly the legal advice that we sought, which suggested that there may be a possibility of maintaining an objective justification for differential treatment of students who are normally domiciled in Scotland and students who are normally domiciled elsewhere within the EU. Having obtained that advice, we shared it openly with the Scottish Government as a catalyst to their own thinking pre-White Paper about what the solution might be for having a sustainable management of cross-border flow. It is a tricky issue, but it is one that both in the interests of Scotland and the rest of the UK needs an answer, because, on the one hand, we need to be able to manage the cross-border flow.

It is a good thing to have cross-border flow, but if it became unsustainable in the sense that people in the rest of the UK, who are facing potentially £9,000 fees, were overwhelmingly making the economically rational choice to come to Scotland and not pay a fee, that would overwhelm Scottish universities. Equally, I don’t think it is in the interests of the rest of the UK to lose those students. So a solution needs to be found.

The Scottish Government have published their proposal in the "Scotland’s Future" White Paper. I would hope that, having set out fairly briefly what that position is in the White Paper, the Scottish Government, who clearly have the responsibility for the policy solution, set out in due course what their overall rationale of objective justification would be so that that can be tested and one can take a view on whether that is something that will be reversed.

Q4310 Lindsay Roy: It may be a possibility, but it is hardly secure information. Would you agree? It is hardly giving a high degree of confidence.

Alastair Sim: We are at a fairly early stage. The White Paper is only just out.

Q4311 Chair: Can I just clarify here? As to the question that you asked to which you got the answer, "It may be a possibility," is that a different proposal from what is in the White Paper or is that the same proposal?

Alastair Sim: It is not identical.

Q4312 Chair: Would you perhaps explain the difference?

Alastair Sim: The advice that we obtained from Anderson Strathern dealt with the situation where you are treating people differently on the basis of whether their normal residency is in Scotland or elsewhere in the EU, assuming that Scotland and the rest of the UK remain in the EU. We published that and we contributed to the Scottish Government as a catalyst to making sure that they came up with a policy position. They are the ones who are responsible for having a policy position. The subtle distinction in the Scottish Government’s position is that they appear to treat three categories of students, which are students normally domiciled in Scotland, students normally domiciled in what would become the rest of the UK and students normally domiciled in the rest of the EU. It is up to the Scottish Government to work through, share and subject to test how they would set out the rationale of that, and how they would empirically evidence that objective justification. It is their responsibility now to evolve that further.

Q4313 Chair: But you did not ask for legal advice on their proposal. You asked for legal advice on your own situation.

Alastair Sim: Our legal advice is antecedent to the publication of the White Paper. We obtained our advice much earlier in the process, in the spring of last year, really, as a catalyst to making sure that ideas were going into the melting pot for how one might deal with the significant issue of dealing with sustainable levels of cross-border flow. Having handed that over, it then became the Scottish Government’s responsibility to come up with their proposal for how they would intend to deal with that.

Q4314 Lindsay Roy: Is that legal advice universally agreed then? Is that a legal opinion?

Alastair Sim: It is, obviously, an area of contest and debate. As I said, the onus will lie on the Scottish Government now to develop their case for what that full objective justification might be so that that can be tested and the parties can make an evidence judgment about it.

Q4315 Lindsay Roy: So you are saying that it may be legal to discriminate against students from England in terms of fees but not with the rest of the EU.

Alastair Sim: I am making no judgment on that. We contributed a paper to start the debate. The Scottish Government, having set out their position in outline in the White Paper, now need to take time to work through that objective justification and show whether it is something that we can have absolute confidence in.

Q4316 Lindsay Roy: I am sure you are willing to make a comment, given that you have had legal advice, that it may be possible to discriminate against students from England and charge them fees and not to do the same with the rest of the EU, as happens at the moment.

Alastair Sim: No, I am not going to comment on that because I don’t have any more legal advice than what we have openly published, and that does not deal with that specific issue. The ball is in the Scottish Government’s court to evolve their objective justification of their own position.

Q4317 Lindsay Roy: Are you aware of the EU position on this?

Alastair Sim: I am not aware that the EU has communicated a formal position.

Q4318 Chair: You said that there may be a possibility. Did the legal advice go into more details about clarifying under which circumstances it might be a possibility?

Alastair Sim: To summarise it-obviously, it is openly available-it takes the European Court of Justice case law. There are three cases it works through that were about the differential treatment of students, and from that case law it reaches the inference, from looking at the ECJ judgments, that there may be a case for constructing objective justification for differential treatment of students based on their normal domicile. I am not going to extrapolate beyond that because that is the extent of the legal advice I have seen.

Q4319 Chair: Does it give any clue as to what the objective justifications could be?

Alastair Sim: Yes. Looking at the cases regarding the objective justifications, it mentions the homogeneity of an education system. I am not sure how one would interpret that. This is from the Bressol case. Is there a risk to the existence of the national education system and the fundamental delivery of its purposes? Does that create an objective justification? The court’s view in that case was that it may be possible to construct an objective justification for differential treatment of students based on their normal residency, if you can meet that test.

Q4320 Chair: Would you tell us the background to the European Court’s judgment? Presumably, an EU country was involved that was trying to secure a particular objective. Would you tell us the background to the particular case?

Alastair Sim: To give a couple of brief bits of background, one case involved people coming from France to Belgium and then back to France with their professional skills, being educated at Belgium’s expense, and in another case medical students were coming from Germany to Austria and then going back to Germany. There were difficult issues there about whether the education system was doing what it was meant to be doing for the right citizens. In both those cases, the court took the view that, well, it is a high test, but there is a test that can be conceived where you could make an objective justification for differential treatment of citizens based on normal residency.

Q4321 Chair: Did the court say that the Belgium university was entitled to refuse the French students?

Alastair Sim: No. They held that the objective justification in that case had not been made.

Q4322 Chair: It hadn’t been made?

Alastair Sim: Yes.

Q4323 Chair: And in the German/Austrian case?

Alastair Sim: When you are looking at both of those cases, essentially the court said that there is a high test that you have to meet. In both cases they felt that the evidence that had been presented to them was skimpy. So that is why, coming back to what I said at the beginning of this section, it is important to us that the Scottish Government work through in full their proposed objective justification so that one can take a view on whether that will be reversed.

Q4324 Chair: Are there any cases where the court has found that a university was entitled to refuse students from another EU country?

Alastair Sim: I am not aware of a case. Having said that, I don’t want to go any further than the paper that we published, but it is clear from the actual explicit reading of the words of the European Court of Justice’s judgments that they have held open the possibility that there may be an objective justification of differential treatment; but I am not going to pretend it is not a high test.

Q4325 Chair: But there is no clue as to what that high test might be.

Alastair Sim: Essentially, it is whether there is a risk to your education system and to its ability to meet its core purposes. That is rather a paraphrase. If you want the words of the legal advice, I will refer you to a website.

Q4326 Chair: But no other country in the EU has been able to demonstrate that its education system is at risk from foreign students.

Alastair Sim: As I said, it is now up to the Scottish Government to support their position. Universities Scotland has contributed, but the responsibility for demonstrating the robustness of the proposed solution rests with the Scottish Government.

Q4327 Lindsay Roy: Just to clarify, do you agree that the legal advice does not say that the position in the White Paper is objectively justified?

Alastair Sim: It makes no comment on the position in the White Paper.

Lindsay Roy: That is helpful.

Alastair Sim: Sorry, can I clarify that, as I am aware that this is a matter of permanent record? What is in common between the positions-and I think this is important-is the possibility of making an objective justification for differential treatment based on residency. What is not in common between the paper that we put in and the Scottish Government’s position is how you are defining the different communities. I am not saying that the Scottish Government’s position is right or wrong; I am just saying that it is different.

Q4328 Lindsay Roy: That is helpful. If Scotland found itself having to charge tuition fees to all students from other EU member states, what impact would that have on Scottish universities?

Alastair Sim: The estimate that we put in our paper in November 2012 of the current cost to the Scottish budget of educating EU students from outside the UK was £75 million.

Q4329 Lindsay Roy: Is it possible that students from other EU countries midway through their studies at the moment of separation could suddenly find themselves facing large fees?

Alastair Sim: I don’t think so. I am sorry, but I don’t follow the logic.

Q4330 Lindsay Roy: If we become a separate country and they are midway through a course, could they be paying fees to complete the course?

Alastair Sim: I can’t foresee a situation in which that would be likely. In relation to EU citizens from continental Europe, I really cannot foresee that situation happening. We have to treat people without detriment to how they are currently being treated.

Q4331 Chair: But you just asked for legal advice to see if you could treat them with detriment.

Alastair Sim: No. I am just struggling to foresee a situation in which, suddenly, halfway through a course, students from continental Europe suddenly are getting a charge imposed on them. I struggle to see how that situation could arise.

Q4332 Graeme Morrice: Because Scotland would cease to be in the EU on day one of independence.

Professor Raffe: With respect to Scottish students, the assumption would be that, if fees were introduced, they would be introduced for those joining in a particular year and then they would continue to pay. Those currently on the course would not be expected to pay fees. That is the way that the increases have worked in the past and I assume it will be the same for EU students.

Professor Pennington: It is a contractual thing. You come in on a certain basis and you will finish on that basis, but the new entrants would come in on whatever the new contract says.

Q4333 Lindsay Roy: So there is a contractual basis for this.

Professor Pennington: For any student coming in-

Q4334 Lindsay Roy: On a four-year honours degree, for example, there is a contractual basis when you start the course that these are the conditions under which you will continue.

Professor Pennington: That is the way that I have always seen it-yes.

Q4335 Lindsay Roy: That is very helpful. Is that the case, Mr Sim?

Alastair Sim: I cannot think of a situation where the fee regime applying to a student has been radically changed during the period of their studies. I think that would be an extraordinarily problematic proposition.

Q4336 Lindsay Roy: If the Scottish Government chose to scrap tuition fees and they did not have the income from the rest of the UK, what would be the options to replace the lost income?

Alastair Sim: Basically, they would just have to look to their budget. The problem is not simply the replacement of lost income. The problem is that, if there is such a steep fees differential between Scotland and the rest of the UK in the event of a yes vote, the essence is how you manage to maintain some sustainable level of flow. How do you stop that level of flow from becoming completely unsustainable with its inevitable displacement effects on Scottish-domiciled students and, equally, with its effects on English universities, as they would be losing a lot of the people on whom they are relying?

Q4337 Chair: So by "unsustainable," in plain terms, you mean that there would be so many students coming to Scotland from the rest of the UK that there would not be enough places for all the Scottish students who had qualified.

Alastair Sim: That is the essential risk if there is not a regime in place that enables the flow to be maintained at a level that is sustainable.

Q4338 Lindsay Roy: We all want a very strong Scottish academic tradition to continue and have highly regarded universities, and make sure that Scottish students can access the courses. Has there been any decrease in the number of Scottish students over the last two or three years?

Alastair Sim: No. The number is going up.

Q4339 Lindsay Roy: It is going up. And the number of students overall?

Alastair Sim: The number of students overall is also going up. Overall, we have had healthy recruitment figures from overseas-although it was down slightly last year-and from the rest of the UK. The global picture at the moment is extremely healthy.

Q4340 Lindsay Roy: So the funding from the Scottish Government has been very strong and very healthy.

Alastair Sim: The 2011 spending review and its subsequent roll-forward into the 2013 spending review has been a settlement that has enabled us to be both accessible and competitive.

Q4341 Lindsay Roy: Are you aware that that contrasts quite markedly with the further education sector, where they have experienced quite a severe range of cuts?

Alastair Sim: They are our closest neighbours, friends and collaborators. My direct interest has been in making sure that we are able to offer as wide an opportunity and as high a quality an opportunity as we can. The Scottish Government have to answer for their own budgetary decisions.

Q4342 Lindsay Roy: I understand that fully. Is it likely to be detrimental on the 2+2 route, HNC/HND, going into university?

Alastair Sim: No, because as part of the current funding settlement there are additional funded places going in specifically for 2+2. There are 1,000 additional places that have enabled universities to make or increase their franchising arrangements with colleges so that students doing HN-level study at colleges are able to have associate-student status with the university, and that the university is actually flowing money through from university-funded settlements to the colleges to pay for those students who are doing their first two years of study at HN level and college. On that specific issue, the interests of students who want to use HN as an instrument for progression to university have been protected.

Q4343 Lindsay Roy: Finally, what is the potential impact of separation and access to Scottish school children to Scottish universities? Is there no impact?

Alastair Sim: David will want to comment on this, probably. In a sense, it is a neutral issue for universities, except that, if there is not a sustainable arrangement in place for the management of cross-border flow, the displacement effect that would occur on Scottish-domiciled students would have an impact on widening access to students as it would have on everyone else.

In terms of what policy solutions one might have in general to encourage wider access to university, I don’t think the solutions that you would come up with would be radically different either side of a constitutional choice. They really depend, partly, on having a sustainably funded system that enables you to have the places and the initiatives that sustain and develop wide access, and also on continuing initiatives and the refinement of initiatives at universities to make sure that we are working with the education system as successfully as possible to promote aspiration, entertainment and inclusion.

Q4344 Lindsay Roy: To what extent has there been an increase in the number of youngsters from poor backgrounds going to Scottish universities?

Alastair Sim: David, probably, has a greater insight into this from a professional point of view, but it is an incremental progress.

Q4345 Lindsay Roy: Can you quantify it?

Alastair Sim: At the moment, if my figures are correct, about 15% of students come from the most deprived 20% of communities. Those may not be the right figures. It is just off the top of my head. It is somewhere between the 11% to 15% range. It has been progressively but incrementally improving over recent years. The universities are working extremely hard. Essentially, until there is a real step change in attainment levels of the schools that we are trying to reach into-and that is no fault of the schools-it is difficult to see a step change unless from early years onwards we are seeing changes in aspiration and attainment.

Q4346 Lindsay Roy: So it is not a marked increase. If at all, it is a marginal increase.

Alastair Sim: It is an incremental increase.

Q4347 Lindsay Roy: Are we talking about 1% a year?

Alastair Sim: Yes. It is around that area. David, probably, has figures which are more accurate than mine.

Professor Raffe: On the point about children from poor backgrounds, by and large, progress has been very limited in the past few years. There has been a very slow rate of progress. In fact, the more recent figures suggest that, yes, there has been some improvement with respect to adults but not with respect to young people with multiple deprivations.

Q4348 Lindsay Roy: So overall it is a neutral position.

Professor Raffe: If you take a long enough time frame, yes, there is improvement, but it is working quite slowly. Often you can see small improvements in particular areas or projects that don’t show up when you are looking at national figures. It is not quite flat but it is not that much better than flat.

If I can just come back to your previous point about what the opportunities for Scottish pupils would be, this is one of these questions where a lot will depend on what the policy decisions of the Scottish Government will be; so one can only speculate. I will make a couple of observations. One, which comes through from what I have observed as an academic over the years but also what some of our interviewees have been telling us, is that there is a strong sense that higher education would get quite high priority from a Scottish Government, as indeed it has done under devolution to a greater extent than it would have done simply as part of the UK. Also, although Alastair may not want to comment on this, the higher education system or the university system in Scotland is pretty well organised and it pulls a fairly effective punch, which has not been the same in the past for colleges, which underlies your other question. The other side to this is what the impact would be on the flow of students from the rest of the UK, which, inevitably, would directly or indirectly, in the long term, displace Scottish students.

If you look at some of the evidence on this, there is evidence that students do react rationally to changes in fee differentials, but the effects in the past-this is based on looking at flows within the UK, between the UK and Ireland-have not been particularly large, partly because there are a whole lot of other reasons why people might choose to study in particular places. You can point to examples that, when Scotland was charging lower fees than the rest of the UK, rUK student numbers actually fell. So, in a sense, the reverse happened there.

You can, similarly, say that there has not been the flood of students from the Republic of Ireland that one might have expected had fees been the sole driving factor. Compared with a country like Wales, where there are massively porous borders between Wales and England, so you have got half of students in Wales actually coming from across the border and a rather smaller proportion going back again, the Scottish system has less porous borders than the other parts of the UK.

My guess is that there would be an increase in students from the rest of the UK. In the short term it wouldn’t be that dramatic. It might accelerate in the longer term, depending a bit on what direction the systems took, partly because all the evidence suggests that student flows tend to follow well-trodden paths, to use one of the phrases. As some students go, they will pass the word, the word of mouth comes back, and so others will follow in their footsteps. In the longer term, I would expect to see a growth in numbers from elsewhere in the UK. In the short term, I wouldn’t expect to see a massive impact.

Q4349 Lindsay Roy: So fees would be critical to an access policy.

Professor Raffe: Fees would be critical or important for a policy of maintaining opportunities for Scottish students overall. If by "access" you mean widening access, that is a slightly different issue.

Q4350 Lindsay Roy: We don’t have any clarity on fees at the present time.

Professor Raffe: Do you mean what the policy intentions are?

Lindsay Roy: Yes.

Professor Raffe: The White Paper says that the Scottish Government will maintain free tuition.

Q4351 Lindsay Roy: But in terms of the rest of the UK, it is not clear what will happen.

Alastair Sim: Again, the White Paper indicates that the intention would be to maintain the status quo and to continue to charge students from the rest of the UK.

Q4352 Lindsay Roy: But that is strongly contested.

Alastair Sim: That is strongly contested.

Q4353 Chair: Yes, but who will be doing the charging? Will the university be levying the charge?

Alastair Sim: Yes.

Q4354 Chair: Did your legal advice give you any guidance on what would happen if a student from England, say, after separation, applied to a Scottish university, was accepted and was then sent a bill-or hundreds of them-then sued that university? Did your legal advice give you any indication of whether you would be successful in defending that civil case?

Alastair Sim: What is crucial to us, so that a university can have confidence, is that, whatever regime is put in place, a Scottish Government, if there were to be a yes vote, specifically legislates for that regime so that we can have the confidence that there is legislation that has already been tested before a university takes forward a charging regime for an English student. That makes sure that there is a secure legal framework for the university to work within regulations that have been tested.

Q4355 Chair: But if Scotland was a member of the EU, there is, clearly, a risk that the courts could strike down that piece of Scottish legislation if it conflicted with EU legislation. Did your legal advice give you any guidance as to what would happen if that happened?

Alastair Sim: No, it is not in that legal advice. What I am saying is-

Q4356 Chair: I can understand that you want clarity. The point I am trying to make is that even an independent Scottish Parliament could not necessarily give you that clarity because, if Scotland was a member of the EU, all the legislation of that independent Scottish Parliament would have to be in conformity with EU law.

Alastair Sim: Yes.

Q4357 Chair: So we do see a situation where universities could be faced with being sued by large numbers of students.

Alastair Sim: If there were to be a post-independence regime, before that post-independence regime comes into place, the important thing is that the Scottish Parliament-bearing in mind that it will continue, one would expect, to have an obligation to act within the terms of EU law-has actually made specific legislation that gives universities the confidence that there is a defensible regime.

Q4358 Chair: But your legal advice has not given you-

Alastair Sim: It says what it says.

Chair: -any clue whatever as to whether the Scottish Parliament would have that power.

Alastair Sim: The Scottish Parliament has to act within the scope of European law, so the Scottish Parliament has to make a judgment. A Scottish Government, as now and as in the future, has to act within the scope of European law. That is one of the things that is tested when legislation comes before a Scottish Parliament. What we need, within that competence of the Scottish Parliament to make things that are intra vires within European law, is for them to make intra vires regulations under European law to provide for a cross-border regime.

Q4359 Chair: But they may not. In fact, judging by what the Scottish Government have said, they have made an assertion and there does not appear to be any legal advice whatsoever as to whether that assertion is valid or not. Are you telling us today that you have not received any legal advice to justify the assertion made by the Scottish Government in the White Paper?

Alastair Sim: We have a responsibility for developing that, but the case of objective justification rests with the Scottish Government. I don’t think that we will, in essence, have anything to test until we have actually seen them work through what their full rationale is for objective justification. We have seen that, in a sense, at headline level in the White Paper, but there is a lot of work to do between that headline level and actually saying, "Look, here is our full case for objective justification." I do not think that we have something that is susceptible to that further study, in a sense, until we see the full objective justification.

Q4360 Chair: To summarise what you are saying, is it correct to say that what the Scottish Government have asserted in the White Paper has not been tested in law? Is that correct?

Alastair Sim: They will, obviously, have taken the view that it is compliant with their understanding of European law, but it is the start of a process of building an objective justification. We can’t take a view on that full objective justification until it is worked out.

Professor Raffe: I will try and let Alastair off the hook. I think it is a bit tough on Alastair to have to answer for the legal uncertainties. I have read two bits of legal advice. One is the Anderson Strathern report that Alistair was mentioning. The other is a blog-it is certainly in the public domain-by the professor of public European law at Edinburgh university, Niamh Nic Shuibhne.

Q4361 Chair: Sorry, at what university?

Professor Raffe: At Edinburgh university. She is professor of European policy law or, anyway, a professor of European law or some such title. This was actually published after the White Paper, I believe, and does question a number of the assumptions made in the White Paper. My reading of the two bits of evidence is that it would be quite difficult to make the case that the Government would like to make.

Q4362 Chair: Could you, perhaps, send us a copy of that blog?

Professor Raffe: Yes. I can certainly forward you the link or something. It might be worth mentioning that, because of the way in which the Scottish Government are making their case, they appear to be rejecting one of the opportunities which was opened up in the Anderson Strathern paper, which said that, although a residence could not easily be made the justification for discriminating in terms of tuition fees, it might be made the justification for discriminating in terms of maintenance costs.

One possible option for a future Government, were Scotland to be independent, would be to accept that fees are inevitable but that maybe we pile in the support heavily in support of maintenance, where currently Scotland does rather less well than other parts of the UK.

Professor Pennington: At the end of the day, it seems to me that it will be in the hands of judges. I do a lot of medico-legal work and you try not to get into the hands of judges because you don’t know what they are going to do at the end of the day. Their decision is, maybe, not final, but it is quite strong. There is an issue here that this will go on until it is resolved, although it may have to be resolved by a court and there are many uncertainties as to how a court will handle it. From what we have heard so far, two precedents do not favour what the White Paper asserts.

We have heard a lot about Scottish universities being swamped by English students and so on to the detriment of Scottish students, but a cap could be applied to any of these students. Government policy could say that you can only take so many and so on. My own view, for what it is worth, is that money plays an enormous part in this. The income that is generated from students coming to Scotland from England, Wales and Northern Ireland is quite substantial-it is 10% of the income of the University of Edinburgh. One has to bear in mind that there is a powerful income source here.

Clearly, from the overseas student point of view, non-EU, it is very substantial indeed. Of course, we talk about getting these people here, but we are getting these people here because we like them to go away with a good view of what has happened to them in Scotland in education, but we also like to have their money as well.

Q4363 Lindsay Roy: The First Minister says that, in the event of separation, England will be our best friends. If they continue with discriminatory fees, is that good will not likely to be damaged?

Alastair Sim: In a sense that seems a rather rhetorical point. Quite apart from the arguments that we have already discussed about the necessity of having an arrangement to ensure sustainable levels of cross-border flow, equally, students in England are, in their home jurisdiction, facing fees that are normally in the region of £9,000. One could take the view that actually it is not discriminatory if they are being treated no worse than they are being treated in their own jurisdiction.

Q4364 Chair: Have you had legal advice to that effect?

Alastair Sim: No. I think I am making a rhetorical point in response to a rhetorical point.

Professor Raffe: If I could make another rhetorical point in response to that, if we are talking about good will, one way in which the existing devolution settlement is not working effectively is in terms of policy, collaboration and communication at the national level. It was not showing a lot of good will when England introduced these huge increases in fees, with minimal consultation or even warning, to the other countries, which had massive implications for their policy making.

If you look at all the various documents-the Browne report and the documents that followed it in England-there is hardly a mention of the other countries of the UK. If you look at all the documents that have been published in Northern Ireland, Scotland and Wales since then, they are massively about the consequences in England. The rest of the UK is massively affected by England in a way that is not reflected in the current policy arrangements, the co-ordination and planning of these things. If we actually had a partnership in higher education, one aspect of that partnership ought to be that, before any part of the United Kingdom makes major decisions that affect the others, it consults and finds out a good way of trying to get a mutually satisfactory arrangement, and that has not happened.

Q4365 Lindsay Roy: That is a good example of what would have been best practice.

Professor Raffe: Absolutely. We are talking here about separation, but, equally, one might want to look at whether or not the existing arrangements could have been improved.

Professor Pennington: From a personal point of view, this does not surprise me at all. I was involved in some food safety, which turned into legislation, before parliamentary devolution, when Scotland had its own agriculture departments and so on. The battles that went on between north of the border and south of the border at that time had to be seen to be believed in the sense that the English did not like being told what to do by the Scots. At the end of the day a truce was agreed and the legislation in England was slightly different from Scotland, but it had the same effect.

Mike Crockart: I am going to have one last go at trying to get to the bottom of the legal advice situation.

Lindsay Roy: Best of luck.

Q4366 Mike Crockart: As I understand it, you have had legal advice. That legal advice says that it might be possible. The Scottish Government are now relying on that legal advice to say, "We’ll be able to do it." You are saying that the ball is in their court to form further advice to show how that might be possible.

Alastair Sim: Yes.

Q4367 Mike Crockart: Have you put them on the spot and actually said, "When are you going to give us your plan about how this is going to make it through the European Court?" As you say, we are waiting to comment to see whether it is going to be possible or not. Have you asked them for that?

Alastair Sim: No. I mean that-

Q4368 Mike Crockart: Was that the first "No" or the answer, before you move on?

Alastair Sim: I have not written any letter to the Scottish Government saying, "Please can we see your objective justification."

Q4369 Mike Crockart: Okay. Have you any plans to do that?

Alastair Sim: I think that will be a key element of our conversations with the Scottish Government.

Q4370 Mike Crockart: A key element of your conversations?

Alastair Sim: Yes.

Q4371 Mike Crockart: So you will be asking them for their justification as to how they think that this will work.

Alastair Sim: Yes. As I say, it is obvious from what is in the White Paper that what you have got there, in a sense, is an outline of how you might frame an objective justification. It is not a full objective justification. So I think it flows from that, that that work needs to be done and it needs to be done in a way that gives confidence.

Q4372 Mike Crockart: So you have not asked for it but you do have plans to.

Alastair Sim: Yes.

Mike Crockart: Thank you.

Chair: Are there any other questions? Just before we end, is there anything else that any of the three witnesses want to add, that you have prepared, for questions that we did not ask? No.

Thank you all very much for coming. I have found it a very useful session towards compiling our report.

Prepared 4th February 2014