The LLE moves one (tiny) step closer

We’ve been living through a time of great uncertainty, where rules feel set to change in the blink of an eye. Things fall apart; the centre cannot hold; mere anarchy is loosed upon the world.

But what rough beast, its hour come at last, slouches towards a statutory instrument?

Yes – I’m talking about the long and lonely wait for the commencement of the 2023 Lifelong Learning (Higher Education Fee Limits) Act. That’s the legislative plumbing that empowers the secretary of state to make (sometimes) determinations regarding the fee charged per academic credit (except where they decide not to) to enable the modular provision popularly known as the Lifelong Learning Entitlement.

Well, I say “popularly.”

The Lifelong Learning (Higher Education Fee Limits) Act 2023 (Commencement and Saving Provisions) Regulations 2026 set out the intention that these new powers will be used to determine the way higher education is funded from 1 January 2027 – any course beginning before this day will have its fee limits determined in the manner determined by the current text of section 83(1) of the Higher Education and Research Act 2017 as if the voluminous amendments made to that section by the 2023 Act hadn’t happened.

In plain English, for courses commencing up to the start of 2027 students get fee loans based on the fee caps set on an annual basis that we have enjoyed since 2012 – beyond that point (from 1 January 2027 onwards) we use fee caps set on a per credit (currently 1 credit is equivalent to 10 hours of academic study including self-directed components) basis to allow us to offer fee loans for shorter bits of higher education. Because not all courses can sensibly be disaggregated into tiny bits and funded individually, the 2023 Act reserves the right for the secretary of state to fund on a non-credit bearing basis (which is stupid as the courses do have academic credits attached to them, we just don’t use them to calculate fee limits) by year

So the government can make the long expected 2023 Act regulations (which will set out fee limits per credit) at any point from today onwards (though the official date of commencement is for some reason 1 September 2026). This means that the rules that have already been set out – we already know about eligibility, and about the fee limits from 2027 onwards – can finally be written into law. And we can most likely expect this to happen before the summer recess and if not then certainly before the great switch-over at the end of the calendar year.

To be clear, this is not the statutory instrument that actually does that. It is the instrument that gives ministers the power to make a statutory instrument that does do that. You may be wondering why the two are not combined, and why this first stage needs to happen now, and to be honest it isn’t clear. There is no time limit relating to commencing parts of an act (bits of legislation lie about uncommenced for years – the technical term is “zombie provisions”).

Because most of the 2023 act relates to the modification of bits of other acts of parliament that are already in use, commencing the act needs to come with this kind of caveat that even though what needs to be done is being done, we can pretend it hasn’t been done when it suits us to do so. Thus ensuring that we can continue funding higher education in the interim, which for many is kind of a big deal.