The fate of current higher education legislation in a general election year

The current government has passed two big pieces of HE legislation this year – but implementation is another question. Michael Salmon examines how a change in ruling party could complicate things

This year has seen the passage of two important pieces of higher education legislation – the Higher Education (Freedom of Speech) Act and the Lifelong Learning (Higher Education Fee Limits) Act.

That’s not bad going for a government that is often seen as having higher education far down its list of priorities. So can you feel the difference?

Sceptics might say that a major rationale for passing legislation on freedom of speech was to be seen doing so, and the lifelong learning act fits in well with the Department for Education’s constant valorising of alternative paths to traditional university education. So there’s a clear public relations effect there. But neither piece of legislation is properly in effect yet – and there’s a very good chance that they won’t really be under the current government.

I lose track of time

In case you’ve missed it, there’s almost certainly going to be a general election in 2024 (there’s a technical possibility it could take place in January 2025, but no-one’s really considering it). The polls have had Labour consistently far ahead for many moons now, and so the chance of a change of government in 2024 is high.

While the lifelong learning act is now on the statute books, there really is still a long way to go with its design and implementation. This autumn will see an Office for Students consultation on a new registration category for further education providers. Next spring, we’ve learned this week, will bring a technical consultation on the wider expansion of modular funding, as well as secondary legislation in Parliament covering fee limits.

Autumn 2024 will then bring more secondary legislation for “the rest of the LLE funding system”, and spring 2025 in theory should see the launch of the LLE personal account where users can track their loan entitlements and apply for some initial courses and modules (which is obviously cutting it somewhat fine for applications for September 2025 entry).

This initial offer will be Higher Technical Qualifications and possibly some other high-value technical courses at level 4 to level 5. From 2025–26 full degree funding is also intended to be routed through the LLE systems, though it may not appear very different on the student side.

The initial LLE consultation response suggested 2027–28 would be the point when a broader range of modular courses came on line – the policy paper this week is more cautious in its language, speaking of a phased approach, “more courses” expected “from” 2027, with a “small proportion of entrants” at full degree level envisaged to have moved to Higher Technical Qualifications, full-time study at levels 4 and 5, or study on modular courses – by 2035–36.

What all this means is that the rollout of the LLE, and even some of the laying of secondary legislation, is very likely to happen under a Labour government. We might also note that the politicking and upheaval of an election year are surely likely to delay work being done within DfE to make the new system happen.

Burn the bridges as you’ve gone

The free speech act is much less of a rush legislative job – it took one day short of two years to get through Parliament, after all, and doesn’t leave the details of its operation to future ministerial decisions to anything like the extent of the lifelong learning bill.

But as Wonkhe Daily readers may have noticed last week, the Office for Students has now published indicative timelines for the introduction of free speech related duties and provisions. Under the proposals, 1 August 2024 would see the launch of the new complaints scheme and the coming into force of new statutory duties for providers and students’ unions. Provisions relating to OfS’s monitoring of overseas funding and new conditions of registration around free speech and academic freedom would come into force on 1 September 2025.

(We should note here too that, with the act passed, powers could be introduced now via secondary legislation, so it’s more than possible that some of the delay is on the government end – this would feed into the interpretation that the key aim of passing the free speech act was to be seen passing a free speech act)

Assuming Labour wins the next general election, the latter date will occur after a change of government, and potentially the former date too in the event of a May election. Labour consistently voted against the free speech act as it passed through Parliament, labelling it a bill in search of a problem, a problem that existed more in the minds of government than in reality.

Whether they would seek to repeal it is probably still an open question at this stage, and will depend on factors including size of majority and the party’s risk appetite faced with a likely intensifying culture wars climate once they are in office. A lighter touch approach, though equally effective, would be to fail to exercise the powers of the act while leaving them on the statute book, possibly coupled with streamlining of HE regulation, under the banner of burden reduction.

So it still could happen that the free speech bill’s provisions never really come into force.

Things can only get better

Thinking about Labour’s possible moves on the Lifelong Learning Entitlement is in many ways a much bigger question. Shadow higher education minister Matt Western positioned his party as in favour of the legislation’s aims, but despairing of its lack of detail and gently concerned about its chances of success.

In terms of concrete details, one thing that stood out in parliamentary debate was that Labour liked the idea of making it more micro, and allowing courses worth fewer credits to qualify for funding (current plans restrict the LLE to a course or bundle of courses worth 30 credits minimum). In the Lords, Labour peers also came down pretty hard on the lack of a good reason to exclude distance learners from maintenance support.

Implementation of the LLE is clearly going to cost much more for universities than the government is assuming, and Labour HQ’s tight rein on spending commitments could also see its ambitions curtailed as the LLE rolls out.

The party also has a lot of other plans for the skills system, with reform of the apprenticeship levy at this point the closest thing they have to a locked-in manifesto commitment for post-compulsory education. The idea is to allow employers to spend levy funds on – that’s right – short courses, which will also involve a big additional wodge of funding to ensure SMEs do not lose out in the absence of the leftover levy funds they previously relied on for their apprenticeship provision.

Keir Starmer’s mission-driven approach to education also looks set to see some long-term and ambitious targets set for social mobility and tertiary participation, which will inevitably need some joined-up thinking about who is doing short courses where, and at what level, and drawing on which funds. Should the party choose to kick the can and launch an independent review of the wider tertiary system, the question of how the LLE fits in at the landscape level looks sure to rear its head.

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