Scottish Executive faces legal action over tuition fees for English students

The University of Edinburgh's governing body will meet at 2pm tomorrow to decide the level of fees it will charge some of the students who wish to study there. Its decision is expected to leave prospective students such as Johnny Whiting facing some of the highest charges in Europe.

For Johnny, 17, from Shoresdean, near Berwick-upon-Tweed, the change will be particularly painful. By the time he graduates he will face debts of nearly £40,000. At the same time, most of the students studying alongside him will incur significantly less debt or none at all.

The reason is simple. He lives in England. Mr Whiting, whose home is two miles from the border and only 62 miles from the university, is one of 23,000 English students who had hoped that by travelling north they would get educated, arguably to a higher standard, for considerably less cost than if they applied to an English university.

Currently he would face tuition fees of £2,895 a year at Edinburgh, but this could increase to £9,000 depending on tomorrow's decision. These charges will not apply to students from other European Union nations. For Mr Whiting, the fact that most of his schoolmates can study for free seems "deeply unfair".

"Essentially Berwick feels like Scotland and I feel Scottish," he said. "It is so annoying that living a few miles from the border makes such a humungous difference. I have considered places like Edinburgh for a long time, but it seems so unfair that someone like me could be sitting in the lecture hall and be in the minority of those paying fees."

The choice, he said, was stark. "I feel quite cheated because these fee changes are making me reconsider my university choice and therefore my career. My mum is a single parent and would be helping me, of course, but I am debating whether or not to put her through that pressure."

Legal experts will be closely watching tomorrow's decision in Edinburgh. Human rights lawyers are preparing a legal case against the Scottish government, believing its decision to charge only English, Welsh and Northern Irish students to be "discriminatory" and a breach of human rights law.

Daniel Carey, a solicitor with Birmingham-based Public Interest Lawyers who are to seek a judicial review of the Scottish Executive's policy, believes Scottish ministers have misinterpreted the law. "Both domestic equalities and human rights legislation as well as EU law prohibit discrimination on the grounds of nationality. English students should be treated the same as Scottish and EU students in Scotland," he said. "A broader debate about the fairness of tuition fees throughout the UK is clearly called for."

Edinburgh is expected to follow Aberdeen University's lead over charges. It set maximum fees of £9,000 a year for non-Scottish students from the UK, but capped the cost of a four-year degree at £27,000 – equivalent to an English three-year degree.

The Scottish government insists the fees are lawful and based on domicile rather than nationality.

Michael Russell, Scotland's Education Secretary, has defended the decision to charge other UK students more, insisting it is to "protect places for Scottish students" and ensure that Scottish higher education institutions are not seen as a "cheap option".

Robin Parker, the president of NUS Scotland, warned that the poorest English students could be hit hardest. "Unlike in England, there is no requirement on [Scottish] institutions to protect access for the poorest students through grants and bursaries," he said.

The Welsh Assembly is to subsidise Welsh students, ensuring they pay no more than £3,000 a year wherever they study. The Northern Ireland administration is expected to make a higher student loan available to those studying outside the province.