Will Scotland protect its student consumers?

But what if people are paying for something and for whatever reason the market doesn’t work as I’ve just suggested?

The Consumer Scotland Act 2020 - which received royal assent back in June - creates a new body called Consumer Scotland.

It will advise on consumer law - such as the Consumer Rights Act 2015, Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 - all of which apply to (most) of the courses “sold” by universities in Scotland to those who pay fees.

It’s a weird body - there is no specific equivalent body in England and Wales, and although it is to be a “small, nimble organisation” it has the functions of representative, research and investigation and information provision - so takes on bits of the Competition and Markets Authority, Which?, Trading Standards, Citizens’ Advice Bureaux and sector regulators.

Its job is to reduce consumer harm in Scotland - increasing the confidence of consumers in Scotland in dealing with businesses supplying goods and services, and increasing the extent to which consumer matters are taken into account by public authorities in Scotland.

On the former of those two duties, “harm” is not defined in the Act and has its ordinary meaning - but the complexities of the higher education market (and yes folks, it’s a market in Scotland if you’re not a home student) and the vulnerability of the student consumer generates a clear risk of harm.

Consumer Scotland will have a specific job in relation to vulnerable consumers - a concept we’ve looked at before on the site. Our general predilection to see students through a class optic, to not want to see students as consumers, and a tendency to see universities as inherently benign may mean we often fail to see students as vulnerable consumers when we really should.

In any event CS will have the power to interpret consumer protection law and issue guidance for specific sectors - CMA’s guidance from 2015 is now so out of date that in England the Office for Students is considering issuing its own, so there’s at least scope for Consumer Scotland to also do so if it chooses to.

On the public authorities issue, the legislation imposes a duty on “relevant public authorities”, when making decisions of a strategic nature, to consider the effect of those decisions on consumers in Scotland and the desirability of reducing harm to consumers in Scotland.

What's interesting is that Scottish ministers' draft proposed list of public authorities to which that duty should apply doesn't include universities - it has chosen only to include national public bodies.

It's weird because the notes say a public authority may be relevant if identified as operating in a manner that is considered of value to the wider public (universities fit this bill) and if "they collect revenue from consumers in exchange for services, set standards or generally develop policies which will affect consumers and the businesses that serve them". Sounds like universities to me.

The notes also say that public authorities with the ability to procure the frontline provision of public services from one or more private or third sector organisations, and public authorities that set standards and issue operating licenses should be listed. Again…

Universities Scotland won’t be too keen to see universities either become the subject of sector specific guidance or the direct subject of the public authorities duty - and few in Scottish political culture will worry a lot about risks to student consumers “not from Scotland”.

But it would probably be helpful if both of the above things happened insofar as it would offer clarity to students, many of whom spent the past year arguing about their rights and calling for fee rebates and refunds.

When the bill was being debated, Dean Lockhart (Mid Scotland and Fife) asked the Minister for Business, Fair Work and Skills if the legislation would apply to “the 14,000 Scottish students who applied to university, but who were rejected because of the Scottish National Party student cap”.

The reply from the government was that “it could, potentially, look at the issues that the member mentioned”. That minister - Jamie Hepburn - is now Minister for Higher Education and Further Education, Youth Employment and Training. Let’s hope that silly question in Parliament doesn’t stop the Scottish government doing the right thing here.