The Westminster government’s “levelling up” agenda is supposed to include a variety of measures aimed primarily at skills provision and further education.
The Skills and Post-16 Education Bill will start the journey into legislation in the House of Lords, a rarefied and reflective setting for the first debates about the contents of a complex and fragmented bill.
The text of the bill snuck out at just after 9pm on Tuesday night (while you were watching the Eurovision semis) alongside an explanatory note. Both were promised (in a DfE press release, no less) yesterday; both failed to arrive while parliament was sitting. The text below is primarily based on a close reading of the Impact Assessment, which Team Wonkhe spotted earlier in the evening. As you’ll soon see, a big and important chunk of the text of the bill hasn’t even been written yet.
One of these things is not like the others
There are nine key measures on the table:
- The “lifelong learning entitlement (LLE)”, which include proposals regarding credit transfer and flexible study.
- A statutory basis for local skills improvement plans, with the Secretary of State gaining powers to designate employer representative bodies (ERBs) to lead on development, and providers seeing a new duty to co-operate and have regard to these plans.
- A duty placed on FE colleges, sixth forms, and other designated institutions to keep their provision responsive to local needs.
- And statutory intervention powers to allow the Secretary of State to intervene when they don’t.
- The Institute for Apprenticeships and Technical Education (IATE) gets powers to define and approve technical qualifications related to employer-led standards. There are measures here to get IATE to collaborate with Ofqual, and take an oversight of technical education in each occupational route.
- Some tweaks to the FE insolvency regime.
- The Secretary of State gets to make a list of certain providers (including independent training providers (ITP), for various nefarious purposes.
- And regulations to improve or secure the quality of FE initial teacher training.
- Finally, a little gift for the Office for Students, which gets a statutory right to use minimum floor outcomes measures without benchmarks in assessing and regulating higher education providers.
Did the dog eat DfE’s homework?
The detail of a fair bit of the new policy the Bill paves the way for – most notably the Lifelong Learning Entitlement (LLE), but also the regulation of initial teacher education in FE, and changes to the regulatory environment for FE – will be set out in secondary legislation. And we’ve really got very little to go on regarding the flagship LLE (due to go live in 2025 following pilots) – though it is fundamentally clear that the government perceives a gap at levels 4 and 5, and is keen to fill it with spicy smaller periods of study at multiple providers.
Incredibly, the government will bring forward amendments at the Committee stage in the House of Lords to set out how the LLE might happen(!) – meaning these key provisions will miss out on scrutiny at the Lords Second Reading. If I know the Higher Education Lords like I think I do, there will be a fair number of complaints about this.
What’s apparent from the impact assessment is that the entitlement will be equivalent to four years worth of funding for higher education, available over a person’s lifetime with the maximum set out via the familiar path of a positive statutory instrument (subject to a vote in both houses). The sneaky government amendments will, give the Secretary of State the power to make this all important secondary legislation, and merrily amend the Higher Education and Research Act 2017 on the way. What’s actually on the face of the bill is some of the scaffold for specifying what a “module” is via amendments to the Teaching and Higher Education Act 1998. Yes “modules” will become a term defined in law – bad luck to anyone hoping to get rid of MODSTAT in the HESA Student Return, I guess.
To what end? Well, there is a way of approaching these ideas that sees the LLE as a way of fixing the problems HERA and the 2012 funding changes caused part-time learning in higher education. Politicians of all stripes have wrung hands about the fearsome decline in the number of part-time students since 2012 – the Open University in particular has had to adapt rapidly to survive.
Funding things in smaller chunks might make it easier to offer part time and flexible provision, though if it isn’t designed carefully (like for example rushing at the last minute to get it into the bill as an amendment… I mean, seriously!) the data burden will be astronomical. It appears that SLC will collect modular data, starting with a modular rollout of the scheme for HE and Higher Technical qualifications. Again, maybe these are the kind of details that should be in the Bill? Perhaps they will be, if the amendment is accepted
Christmas at Nicholson House
That last one catches the eye somewhat, wouldn’t you say? Back in August we took a look at the full appeal judgement relating to The Queen vs The Office for Students – better known as the Bloomsbury case. As you will recall, the OfS lost on appeal – the decision not to register Bloomsbury was “policy”, not merely operational, and the OfS should have consulted on the way it made decisions relating to regulatory condition B3 (“outcomes”).
But a third leg of this appeal, on the “rationality” of the use of this particular collection of numbers, raw and without benchmarking, to make regulatory decisions was left without a decision. Hilariously, the OfS’ documentation of the way the baseline measures work in condition B3 was too impenetrable for judges to read (maybe they gave up in the Mines of Moria) – at the time, it didn’t matter because the appeal was successful otherwise. But it has always been a risky looking hole in the OfS’ regulatory armoury.
The Skills and Post-16 Education Bill is the means by which OfS gains a statutory right to look at raw, absolute, outcome measures in regulation. The arguments in favour are as familiar as they are facile – all students have the same right to quality education, and – even though OfS will use contextual data alongside the absolute numbers (not least in things like TEF) – the same measures should apply from the smallest alternative provider to the largest established public university.
This is how the OfS regulates already – and it has only the prose stylings of the regulatory team to thank for the fact it is still allowed to. The Bill means that even if judges can’t understand how B3 works OfS can carry on – and it is hard not to see the impact assessment’s assertion that this is a merely “technical measure” as a kiss off to what the Mail once described as the “enemies of the people”.
Equalities and wider impacts? The OfS did an assessment of the original B conditions back in 2018 and pronounced them compliant – I rather feel that using absolutes changes the game a little.
Other points of interest
The employer representative bodies will work locally, but in economic terms the claim is there’s not really a good definition of what “local” means (I’d wonder about travel-to-work areas, or indeed LEP areas, or mayoral areas…). So the designation of each ERB will include a bespoke definition of what the local area means in each case. An impact here for HE – as providers will be involved in responding to these bodies’ recommendations at least as regards level 4 and 5 FE style provision – is that providers may have an interest in an area (have a history of recruiting from or carrying out outreach work in) that they are not actually represented in.
The statutory duty on FE colleges to keep their provision under review in order to meet local needs is basically an admission that the hugely disruptive “area review” process didn’t work (even the impact assessment hedges that the “model was only partially effective”).
The circumstances wherein the Secretary of State can kick down the doors of your local FEC? Mismanagement by the governing body, failure to discharge a statutory duty, the governing body acting unreasonably, significant underperformance, and failure to provide an acceptable standard of education and training. The impact assessment makes it clear that this can involve the direction of structural changes (like mergers, though the CMA may need to be consulted), and the combination of this and the review duty means that if a college doesn’t take account of local skills needs it is in trouble.
Under the provisions in the Bill the Secretary of State will only need to make an administrative order to designate a provider as being within the statutory FE sector – this currently needs a statutory instrument. And that list of post-16 education or training providers? It’s to offer protections to students at “independent training providers” (ITPs). There were 64 unplanned provider exits from the FE sector in 2019-20, 60 of which were ITPs. The new ESFA-managed “listed” status would come with the standard requirements to protect students and public funds – there’d be a provider exit plan and a listing fee just like a mini-OfS.
And the new FE initial teacher training will be to a standard developed by employers (that’s the FE colleges) supported by the ESFA. The core qualification has been the same since 2013 and DfE fears it may be out of date. There’s nothing directly for HE teachers here, though the qualifications will be available for HE to use, which is nice, I guess.
What do you think of the show so far?
To be honest, the paucity of what is on the face of the bill and the fact that I know now that the ostensibly main part of the bill will turn up as a Lords Amendment at some unspecified point in the future does not exactly secure my confidence that this is a well-considered or even vaguely considered piece of prospective legislation.
As big chunks of it are taken wholesale from the Augar review, and apparently finessed via the occasional White Paper and/or statement from the Prime Minister, it does rather feel like the rest of the “levelling up agenda” – based on good ideas, and very difficult to argue against, but lacking in policy substance.
Wholesale changes to the way we support FE, skills, adult learning, and part-time HE, are long overdue, and sorely needed. I wanted to tell you that this was the bill that sets some of this in motion, but on current evidence – short of the kind of legislative spring-cleaning that should be happening anyway – there appears to be nothing here.