Just because there is stuff that the government needs to do that requires primary legislation doesn’t guarantee that a bill will find its way into the King’s Speech.
The announcement of the next sessions legislative programme (because that’s largely what the King’s Speech – or the “gracious speech from the throne” to be accurate – actually does) is an opportunity for the government to send a message to the electorate and any recalcitrant backbenchers about the grand narrative for the next year.
All kinds of bills find their way in there – there is a list of some 37 government bills that will be introduced before this time next year. Some, like the special education needs system reform in the Education for All Bill, or the changes to immigration plans in the Immigration and Asylum Bill have been trailed extensively: they will bring few surprises, but will continue substantial ongoing debates.
If you are a minister with a bunch of plans that need primary legislation, but you haven’t been able to make the King’s Speech cut your best option is to tack some sections on to somebody else’s bill – what’s known in law-making circles as a “suitable legislative vehicle.” Unlike in other countries, bills in the UK have to largely stay on topic (if you are making education-related provisions you need to add things to a bill broadly concerned with education) but in some cases are easier than others (there’s quite a lot you could probably fasten in to the Regulation for Growth Bill).
We’ve been working under the assumption that there are enough little bits of legislative needs around higher education to see a bill of our own promulgated – we even got the name of a possible bill (the Skills Bill) from a stray line in the impact assessment for the Higher Education: Tuition Fee Uplifts for Home Fee-Eligible Students in England, Academic years 2026-27 and 2027-28 regulations.
This has proved not to be the case. But here, in the spirit of Bullseye, is what we could have won:
Part 1: Fees and finance
We were told back in 2025 that fee limits would rise for the next two academic years (2026-27 and 2027-28). Beyond that, the intention was that:
Legislation will then be brought forward, when parliamentary time allows, to enable automatic increases to fee caps in future years in line with inflation but only for institutions that meet tough new quality thresholds set by the Office for Students.
That short line in a Department for Education press release (repeated in the Skills White paper with the addition of the prospect of periodic review) is a very big deal for the sector. It would operationalise a fee-rise mechanism that would at least mean that the steady decline in value of student fees would not continue. Putting this in primary legislation would ensure that any future government would also need to make a law and pass it through parliament in order to stop these inflationary increases.
We have a statutory instrument enacting the rises for the next two years, so it is entirely possible that this change could happen the year after next. But as your Director of Finance’s sleepless nights will tell you, certainty and the opportunity to do some strategic planning would be very popular right now.
The other end of this promise doesn’t technically need primary legislation – HERA 2017 already provides that fee caps can be set differentially based on a quality assessment, and this already happens (if you don’t have a TEF the fee cap next year is £9,525 – if you do it is £9,790). But writing this requirement directly into higher education would make the automatic operation of this decision harder to undo.
This is of course, assuming that OfS goes ahead with TEF in some form – we’re still waiting for the response to the consultation that would turn the quality enhancement mechanism into a full spectrum quality assurance tool. Even on the most optimistic of timetables, the first awards would be made in the back end of the 2027-28 academic year, meaning that there is some chance that 2028-29 fee levels will be set based on 2025 TEF results – probably not the most reliable or defensible mechanism for doing so.
Just this week we got a reminder – via the Commons Education Committee – that we need a proper insolvency scheme for higher education. HERA was drafted in the days where it was assumed that individual poor quality providers would gradually fade out of viability – the mechanisms there are clearly not suitable for a sector wide poly-crisis such as the one we currently face. And this was a Behan recommendation too.
Part 2: Quality and standards
The Skills White Paper promised the Office for Students new powers to impose recruitment limits where growth risks poor quality, and to otherwise strengthen powers of regulatory intervention: preventing the “abuse of public money” via stronger entry and search powers, the power to make interim sanctions, and court-enforceable final sanctions.
Likewise, we should consider here the Behan Review recommendation that the (currently unfilled) role of the Designated Quality Body be removed from the Higher Education and Research Act. Behan also wanted to ensure that OfS had the tools and powers it said it needed to regulate effectively.
This was, of course, well before the High Court tore a huge hole right through everyone’ s perceptions of the quality OfS’ investigative processes and ability to make regulatory decisions fairly and without bias. It is possible that the spectacular headache that OfS’ three-and-a-half year pursuit of the University of Sussex has given ministers and the department may have dampened enthusiasm to hand out more power and responsibility, even though a largely new senior leadership team at the regulator will be keen to make amends.
Where this leaves the embattled regulator remains to be seen – the Department has been notably quiet on the issue, and is likely to remain so while it decides whether or not to appeal the decision. That is due, we understand, on 20 May – to be honest the judgement was written in such a way as to preclude any chance of a successful appeal, but anything could happen.
This section of my imaginary bill would also be the place to decide whether action on franchise and partnership activity from both DfE and OfS needed a statutory basis in order to prevent future legal challenge.
Part 3: Lifelong Learning
We very recently saw a tentative commencement of the Lifelong Learning (Higher Education Fee Limits) Act 2023, which now allows the secretary of state to make the regulations needed to set fees on a by-credit rather than by academic year basis. LLE is still scheduled to launch from 1 January 2027 onwards – and there is a lot still to be done.
The government’s own web pages detail some further required activity: on residual entitlements, on deciding who and what will constitute the launch LLE offer, consult on break points within degree programmes, publish guidance on standardised transcripts, not to mention actually promoting the entitlement to the general public (essential given the low take up rate in the two trials so far).
Even though not much of this requires legislation, I am minded to think that putting this on the face of the bill would help spread the good news. It may also prompt the government to legislate on credit transfer – something which has always been in the wings if the sector failed to get its own house in order in the vital matter of helping students take credits between providers. The sector has not shown any signs of doing so.
Part 4: Freedom of speech
Jacqui Smith has told us several times that she is waiting for a legislative vehicle to amend and repeal parts of the Higher Education (Freedom of Speech) Act. In particular, this refers to the statutory tort (the mechanism by which pretty much anyone could take a university to court for a free speech failing) and the direct duties on students’ unions and representative bodies.
We also know that she planned to change the “duties” on the OfS to “powers”, and I can’t help but think that the section on collecting data around overseas financial influence isn’t something that really needs statutory power (especially given that HESA already collects similar information).
As recently as 20 April, ministers were talking about “new powers to protect vital free speech at universities” and highlighting regulations to be introduced in June to shape a complaints scheme for staff, external speakers, and non-student members; and the prospect of fines for breaches of freedom of speech duties.
Just nine days later we got the Sussex judgement, and we have heard nothing since on new powers or regulations. As above, until the waters have settled it would be a brave minister indeed who gave the regulatory new powers in this area.
Part 5: General
There are, as David Behan observed, some strangenesses relating to the way the Office for Students operates. In particular, the Secretary of State currently appoints three members of the executive (the chief executive, director for fair access, and director for freedom of speech and academic freedom) plus the chair and non-executive directors.
He recommended that, as happens with other regulators, the government appoints the board members and then the board appoints the chief executive. This would allow the chief executive(s) to appoint their own team – providing clear lines of accountability and authority.
It is a sensible change, but it is one that needs primary legislation to amend the Higher Education and Research Act.
And finally, we also need primary legislation to repair one of the last governments’ mistakes. Because regulations made around the costs of foreign student visas were constructed incorrectly, the government needs to retrospectively apply fee rises from 2023 to avoid the Home Office facing legal action and the possibility of making £120m in repayments for overcharging. That is a lot of money to lose simply because you didn’t want to announce a Skills Bill today.
Bonus material
There are, of course, a bunch of other sensible things the government could do with a Skills Bill – I’ve made some suggestions on the site before. But, incredible as it may seem, the above is simply a list of things that the government has told us it needs to do.
The fact that it hasn’t taken this opportunity to do these things speaks eloquently of the lack of interest in higher education at the Department for Education, a lack of trust in a regulator that has manifestly failed in a primary regulatory duty, and a lack of resolve to do the hard work of government and actually fix things rather than indulging in performative leadership drama.
This is all before we get to the long overdue clean up of HERA, and – dare we whisper – setting up the much needed independent review of higher education.
