English, Welsh and Northern Irish students could pay up to £36,000 more than Scottish and EU students next year

Scotland is breaking the law by charging students from elsewhere in the UK for university degrees while undergraduates from Scotland and the EU get their education free, according to a leading human rights lawyer.

Students from England, Wales and Northern Ireland are currently charged between £1,820 and £2,895 per year to study for a Scottish university degree – a sum that could increase to up to £9,000 from next year.

But under EU rules, students coming to Scotland from other European countries cannot be charged tuition fees because they have to be treated in the same way as Scottish students.

If fees go up to £9,000, then the 22,500 UK undergraduates studying in Scotland will pay a total of £36,000 more than Scottish students and those from the EU.

"This is a vision of an elitist society dressed up in the language of the big society," said Phil Shiner, of Public Interest Lawyers. "The fees system in the UK is deeply discriminatory. This goes to the heart of everything I hold dear."

Shiner, currently gathering support from students with the intention of taking class action against the Scottish government, believes that the current system is the result of ministers having "misinterpreted the law".

He maintains the Scottish fees system contravenes article 14 of the European Convention on Human Rights and could also be in breach of the Equality Act, implemented last year.

"There is no defence for this discrimination," he said. "It's a matter the courts will have to decide and, in important cases like these, they can move very quickly."

The Scottish government has defended the current system. A spokeswoman said: "We are clear that the proposals set out [to allow Scottish universities to set fees for English, Welsh and Northern Irish students up to £9,000] are lawful. Tuition fee arrangements are based on "ordinary domicile" not nationality."

She added: "In an ideal world, no students would pay fees. Our main priority has to be to protect opportunities for Scottish students to study at Scottish institutions by maintaining free education north of the border."

But Shiner disagrees: "The argument about domicile and nationality doesn't hold water. If being Welsh, English, Irish or Scottish is not a matter of national origin then it makes a nonsense of the establishment of parliaments in each place."

Scotland's education secretary, Mike Russell, is also seeking to close the loophole that sees nearly 16,000 EU students attend Scottish education establishments, costing the taxpayer £75m a year. It is, he said, a funding loophole that is "no longer tenable".

"We cannot allow Scotland to no longer be the best option and instead be known as the cheap option," he said. "We also must protect places for Scottish students."

Jennifer Watts, founder of campaign group Make Uni Fees Equal, said: "English students have to pay thousands of pounds to get a university education. Yet Scottish students get theirs for free. How is this discrimination allowed in the United Kingdom? It is only fair that either we all pay or no one pays."

From 2012, only international students from outside the EU will pay more to study in Scotland as there is no cap on what UK universities can charge them. Most institutions charge international students around £20,000 a year.