THE LORD ADVOCATES

Report on Executive Actions

6 AUGUST 2017

The Rt. Hon. the Lord Advocate /u/Model-Clerk presents this

report and opinion on the actions of the First Minister the Rt. Hon.
/u/mg9500 MSP.

A. Common Higher Education Area

A.1 Background
1. On the 5th and 6th of August, 2017 the First Minister travelled to Sweden to
meet with Swedish Government officials to discuss (among other topics)
higher education and a collaboration between Sweden (through, initially, the
University of Malm) and Scotland (through the Student Awards Agency for
Scotland, SAAS).

2. The details of the proposed collaboration are as follows:

(a) Scottish students meeting SAAS residence requirements1 would be

funded when attending the University of Malm and other Swedish
universities

(b) Swedish students would, when studying in Scotland, be funded by

the relevant organ of the Swedish Government

3. There is no proposal that money would be exchanged between the Scottish

and Swedish Governments, nor that an agreement or accord would be signed
to give the collaboration legal effect.

A.2 Legal framework

4. The constitution of Scotland is the Scotland Act 1998. This Act established
the Scottish Parliament and Government, and sets out what the Parliament
may not make laws concerning and what the Government may not do
(respectively, their legislative competence and executive competence).

5. Schedule 5 to the Act sets out reserved matters, which are the topics
reserved to the Parliament of the United Kingdom and the matters on which
the Scottish Parliament cannot legislate. Paragraph 7 of the Schedule makes
the following reservation:

7 (1) International relations, including relations with territories

outside the United Kingdom, the European Union (and
their institutions) and other international organisations,
regulation of international trade, and international
development assistance and co-operation are reserved
matters.

1The residence requirements being that the student was ordinarily resident in the
United Kingdom, Channel Islands, or the Isle of Man for three years immediately
before the first day of the first academic year of their course; that the student was
also ordinarily resident on that day; and that the student is a UK national, EU
national, or has UK settled status on that day.
 (2) Sub-paragraph (1) does not reserve

(a) observing and implementing international

obligations, obligations under the Human Rights
Convention and obligations under EU law,

(b) assisting Ministers of the Crown in relation to any

matter to which that sub-paragraph applies.

6. The Vienna Convention on the Law of Treaties 2 sets out international law as
regards treaties.

7. Directive 2004/38/EC of the European Parliament and of the Council requires

a Member State of the European Union to provide equal treatment with the
nationals of that Member State but does not require the Member State to
grant maintenance aid for studies, , consisting in student grants or loans to
persons other than workers if those persons do not have the right of
permanent residence.

8. The powers of the Scottish Ministers in relation to payments to students and

educators are derived from the Education (Scotland) Act 1980, and in
particular sections 73 and 74. The sections allow the Scottish Ministers to:

(a) Make payments to education authorities, universities, managers of

educational establishments, persons providing educational
services, persons carrying out educational research, persons on
educational courses, and for any other educational expenditure
they approve ( 73).

(b) Set conditions for making those payments ( 74).

9. The Scottish Ministers exercised these powers in making the Students

Allowances (Scotland) Regulations 2007, which came into force on 1st August
2007.

A.3 Analysis
10. Under paragraph 7 of Schedule 5, it is evident that the Scottish Parliament
has no capacity to make laws which relate to treaties, accords, or international
trade, except to implement EU law and the Human Rights Convention.

11. Given that Scotland is a constituent nation of the United Kingdom and, by
virtue of the Treaty and Act of Union, not currently a state in its own right, it is
clear that the First Minister is not a Head of State or Government nor a Minister
for Foreign Affairs. Therefore, per Article 7 of the Convention, the First Minister
cannot conclude treaties in an executive capacity.

12. However, it is my view that the agreement described in A.1 does not qualify
as a treaty or other legally-binding agreement. The reasons for this
determination are as follows:

(a) There has been no mention or implication that either party (Scotland
or Sweden) will be bound by the agreement or be required to follow
it.

(b) There is no exchange of money, goods, or services between the

Scottish and Swedish Governmentsrather, payments from the

2 United Nations Treaties Series vol. 1155, p. 331.

 Scottish Government are to students from the UK or EU meeting the
residence requirements for their study, and would be made in an
equivalent manner had the student chosen to study in Scotland.
Payments from the Swedish Government are, in a similar manner,
to Swedish (or such other qualifying nationalities) students.

(c) The same is true regardless of whether the payments are made to
students or to educational institutions are on behalf of students.

(d) A Swedish student, being from a European Union country, is entitled

to live in Scotland by virtue of the United Kingdoms membership of
the European Union. Once the student had the right of permanent
residence, Directive 2004/38/EC would require that the student be
provided with free education (as Scottish residents are). This
agreement does not affect the students right to stay in the United
Kingdom (or Scotland), or the students entitlement to be provided
with free education. Instead, this agreement only establishes a
convention where the Swedish Government pays fees the student
would otherwise have been required to pay him- or herself if the
student was not eligible for free tuition as a result of Directive
2004/38/EC.

13. The question, given that the agreement does not constitute a treaty and does
not affect international law, it is therefore whether the law of Scotland allows
the Scottish Ministers to pay the fees of students who would otherwise qualify
for SAAS funding when those students study abroad instead of in Scotland.

14. The relevant portions of section 73 of the Education (Scotland) Act 1980 read
as follows:

73 Powers of the Secretary of State to make grants to

education authorities and others

The Secretary of State may out of money provided by

Parliament apply, in accordance with regulations made
by him, such sums as he thinks necessary or expedient
for any or all of the following purposes:

(f) the payment of allowances or loans to or in respect

of persons undertaking or who have undertaken courses
of education;

(g) providing for any other educational expenditure

approved by him.

15. Although the section reads the Secretary of State, education is devolved and
therefore, as a result of section 53 (general transfer of functions) of the
Scotland Act 1998, the powers are exercisable by the Scottish Ministers
instead.

16. The section places no further restriction on who those persons may be, and
therefore does not prevent the Scottish Ministers from paying the fees of
students who study abroad.

17. In the Students Allowances (Scotland) Regulations 2007, regulation 3

enables the Scottish Ministers to pay an allowance to a person undertaking
a course of education provided that they fit a description given in schedule 1
of the regulations. The first description provided in schedule 1 is as follows:
 1 A person who

(a) is ordinarily resident in Scotland on the relevant date;

(b) has been ordinarily resident in the United Kingdom and

Islands through the period of 3 years immediately
preceding the relevant date; and

(c) is settled in the United Kingdom within the meaning given

by section 33(2A) of the Immigration Act 1971 on the
relevant date.

18. Schedule 2 sets out what is considered ordinarily resident. The relevant
portion of that schedule is as follows:

For the purposes of paragraph 1(a) of Schedule 1 a person shall be

treated as being ordinarily resident in Scotland on the relevant date if
the Scottish Ministers are satisfied that the person was not actually so
resident because that person [] was for the time being [] attending
a course of study or undertaking postgraduate research outside
Scotland.

19. The regulations, by my interpretation, permit an otherwise qualifying student

to be awarded an allowance by the Scottish Ministers when studying abroad
if the person travelled abroad on or after the relevant date 3 to attend the
course for which they are to receive an allowance.

A.4 Conclusions
20. I therefore conclude as follows:

(a) The First Minister is competent in making the agreement described

in this report.

(b) The Scottish Ministers would be competent in making regulations

under the Education (Scotland) Act 1980 to allow the Scottish
Ministers to make payments to students who study abroad.

(c) Regulations previously made by the Scottish Ministers permit

making such payments.

However,

(d) The First Minister would not be competent in making or entering

Scotland into a legally-binding agreement to give force to this
informal agreement.

(e) The Scottish Parliament would not be competent in legislating to

give effect to such an agreement, but could legislate to put the
informal agreement described in this report into effect.

3Nominally the starting date of the course, but specific dates are provided in the
definition of the term in regulation 2.