Category: Legislation

The risk of opening a legislative backdoor into the sector’s pocket

It’s 2029. The international student fee levy is finally in place, after a complicated legislative passage, further consultation, and squabbles over implementation.

Still riding high in the polls, though with an eye to accusations of unfunded spending commitments, Reform’s manifesto promises to jack up the levy to 40 per cent, explicitly labelling it a lever to cut net migration and unsurprisingly deaf to its effects on university balance sheets (as well as to arguments that this could in fact reduce the overall take – they have modelling which says it won’t).

After all, the primary legislation to operationalise the government top-slice of universities’ student income leaves the exact amount of the levy to the discretion of the Secretary of State. It will be a relatively simple laying of regulations to have the new percentage in place by autumn.

Scratch that – it’s 2032. The Conservatives are back in power (somehow). The industrial strategy has been binned, and with it the underpinnings of the “priority subject areas” that have determined which students and which courses are eligible for maintenance grants. With the pretext that those who benefit from higher education should in later life foot the bill – and the entirely accurate observation that whether maintenance is in the form of of grant or loan doesn’t actually affect whether students are “working every hour God sends” to support themselves while studying – the Conservative government decides to end the confusing patchwork of targeted grants it has inherited and (once again) shift student support over to maintenance loans. (Oh and the levy income will instead be used to plug the growing apprenticeship overspend.)

Now when the act passed there was nothing that made a cast-iron link between grants and the fee levy – indeed, there’s not a single mention of how the funds should be spent on the face of the bill, because that’s not the kind of thing you can practically legislate for. Backbenchers flagged this, ministers said it was a commitment and they would stick to it, and Labour’s majority held up.

This hypothetical Tory Treasury is still antsy about expanding the loan book – gilts are still high, the era of rock-bottom interest rates seems a distant memory – and the price of raising borrowing for maintenance is the announcement of a multi-year freeze on tuition fees. Here we go again.

How about this one: it’s halfway through Labour’s second term in office, and it’s becoming clear that the modular LLE hasn’t really taken off. The demand for several thousand pounds of plan 5 loan debt in return for a short course has, shockingly, not materialised. As happened with the pilot exercise, DfE tries to tempt learners in with student support grants, rather than chunked up maintenance loans. When this doesn’t bear much fruit, as with the modular acceleration programme the next play is to entirely waive tuition fees for technical courses, just deducting them from LLE entitlement instead.

Despite low demand, the need to keep finding little pots of cash to spend for the incentivising of modular provision has stretched DfE’s willingness to let too much of the levy income go towards maintenance grants for full degrees (especially as, to the surprise of few, the department was never intending to allocate the whole haul to maintenance grants).

Maybe there’s a damning National Audit Office report. Maybe there are anecdotal reports of spotty financial controls and agents encouraging students onto certain newly launched courses to get access to lump sums of maintenance, rather than for genuine study. With an eye on the next election and the 10-year NHS workforce plan’s final year looming, the thought pops up – wouldn’t it be politically expedient to just bring back grants for nursing students rather than fiddling around with all these industrial strategy bits and pieces?

Final one. It’s 2038 or something, and the Office for National Statistics is finally approaching the end of its review of the classification of higher education in the national accounts which it began in 2017. To be fair to the beleaguered stats body, each UK nation has either made large changes to its higher education system in the interim, or announced wholesale reviews which have then not led to much change, leading to one pause after another. Finally though, the ONS is in a position to weigh up all the dimensions of the government’s oversight and control of the English higher education sector, which now includes the ability to skim off a set percentage of all international student income – and decides on classification within the public sector.

All the sector submissions and parliamentary interventions which tried to advocate against the levy on these very grounds – the scare stories of controls on borrowing, limits on senior staff pay, and changes to how accounts are managed – are vindicated. (However, as Julian Gravatt has pointed out in the definitive article on the topic, the government of the day then carefully takes steps to address just enough of the specifics of the ONS’ decision and thus move universities back out of the public sector. It doesn’t want to lose out on the income the levy brings, so instead it makes changes elsewhere, to regulation perhaps, or pensions. It’s all a bit of a mess.)

Through the trapdoor

However the government decides to legislate for the fee levy – it might be a standalone bill, or wrapped up in a larger HE Act – it’s going to be a complicated process. Labour backbenchers have been expressing concerns since it was first mooted, but the grafting on of maintenance grants means that it will be harder for MPs to vote against.

The sector has largely marshalled two arguments against it: that it will enormously destabilise finances, and that it’s unfair and risky to further cross-subsidise home students with international income. On the first, it’s clear that the government is not convinced that there isn’t a bit more to be squeezed, especially as it has seen much of the sector impose year after year of inflation-busting increases to overseas fee sticker prices – it’s probably no surprise that the white paper modelling saw the cost of the levy passed on, even though some universities will be unable to achieve this in practice. It’s still a sensible argument to make, though until we see to what extent the government is slow-rolling a wider package of tuition fee increases it’s hard to know whether it can gain traction.

Equally, the argument about cross-subsidy is proving and will continue to prove ineffective, given that DfE has hinted its intention to claim that this helps higher education make the case for international student recruitment to the wider public on exactly those grounds.

But there’s a larger, longer-term case to be made to ministers and parliamentarians, that considers the enormous unintended consequences and political risks that prising open HE balance sheets in this way will enable. Once the backdoor has been installed, it’s there for hostile actors to take advantage of, and for user error to compound the problems. It is verging on a certainty that the legislation will neither restrict the level the levy is set at nor ringfence how its takings are used.

Now the announcement has been made it’s almost certainly too late, but the need for the government to legislate to make this a reality points to missed opportunities around cooperation on access – a sector-owned and co-funded pot of money for student support and, yes, redistribution would have been far more effective at staying out of the political fray. This levy will be square in the middle of it, for many years to come.

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October 5, 2025
Restrictions on use of NDAs continue to tighten

By luck or judgment two separate regulatory regimes applying in the HE sector came into effect on the same day last month.

They are condition E6, the new condition of registration imposed by the Office for Students to better protect students from harassment and sexual misconduct, and a revised duty to secure freedom of speech within the law set out in the Freedom of Speech Act 2023.

Both regimes impose restrictions on the use of non-disclosure agreements (NDAs) by HE institutions. However, their scope is slightly different.

Condition E6 forbids provisions which have the object or effect of preventing students from “disclosing information about an allegation of harassment and/or sexual misconduct, which in any way involves or affects one or more students” to any other person. These restrictions on NDAs were introduced as free-standing requirements on 1 September 2024.

The Freedom of Speech Act measures also relate to harassment and sexual misconduct, but the restrictions are not confined to misconduct affecting students. These restrictions extend to NDA provisions in agreements that prevent anyone connected with the institution, including visiting speakers, from disclosing information about a complaint they have made about misconduct to any other person.

In an ideal world, these two separate regulations would be better aligned, but in practice, institutions will be able to square the circle by following the more onerous of the two provisions in any given situation.

The regulatory guidance on condition E6 states:

Although this provision does not apply to other persons, providers should consider the wider requirements of this condition in applying such restrictions to other persons such as staff, and not to inhibit discussion of these issues that might support those who have experienced harassment or sexual misconduct, or allow issues to be aired and properly addressed.”

This suggests the guidance appears to anticipate the free speech measures. However, somewhat strangely, the issue of NDAs is not mentioned at all in the OfS’s regulatory advice on the free speech duty.

And there’s more

As if two overlapping NDA regimes were not troublesome enough, a third is now in sight. Amendments to the Employment Rights Bill in July 2025 (at report stage in the House of Lords) impose new restrictions on confidentiality clauses relating to harassment and discrimination (as defined in the Equality Act 2010).

Again, the scope of the targeted misconduct (harassment or sexual misconduct) is similar, but these provisions focus on workplace harassment and are confined to restrictions in agreements between workers and employers. There is also the possibility of exceptions being created by regulations, though we don’t know what these would look like yet.

So, the scope of the restrictions will be narrower than the current legislation universities operate under. However, the range of misconduct covered is wider as it extends to direct and indirect discrimination as well as harassment. Though this does not include breach of the reasonable adjustments duty or victimisation.

Bringing it all together

All three sets of restrictions build on existing limits to NDAs.

First, there are currently provisions that protect whistleblowers from signing gagging clauses that prevent them from making a disclosure. The connection between sexual misconduct and protected disclosures will be made explicit by another proposed measure in the Employment Rights Bill, as it adds disclosure of information about sexual harassment to the list of disclosures qualifying for whistleblower protections.

Many protected disclosures involve misconduct that is potentially criminal. It is already the case that an NDA will be unenforceable to the extent that it seeks to prevent reporting of a criminal offence to the relevant authorities or cooperating with their enquiries. These rules will be codified in a slightly broader form by provisions in the Victims and Prisoners Act 2024, coming into effect on 1 October 2025.

Secondly, lawyers involved in the drawing up of confidentiality agreements will be aware of the warning notice from the Solicitors Regulatory Authority, first issued in 2018 and revised in August 2024. The warning notice means it will amount to professional misconduct to draft NDAs that are not legally enforceable, or to obscure limitations in the scope of the confidentiality requirements being lawfully imposed by using obfuscatory drafting.

There are also broader reputation and compliance issues to consider. As a result, several policy initiatives exist to encourage HEIs to limit or eliminate the use of these agreements. One of the most significant recent developments was the launch in 2022 by Universities UK of a strategic guide to tackling staff-to-student sexual misconduct. The guide considers that the use of NDAs can inhibit the development of a culture which makes this kind of conduct less likely, and says that they should not be used to prevent “reporting parties from speaking out or to restrict what the university might disclose to others.”

The development of placing limits on NDAs has been piecemeal and inconsistent, but the direction of travel is clear. It is increasingly difficult to use blanket NDAs. Thought needs to be given to the proposed reasons for and the effects of NDAs in relation to any aspect of an HEI’s operations. It will rarely be appropriate to seek NDAs in relation to issues of harassment or sexual misconduct, and other (common) processes and approaches for handling such situations effectively with staff, students, members, visitors, and other stakeholders will be required.

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September 25, 2025
Sledgehammers, screwdrivers, and primary legislation

There might well be a new Higher Education Bill on the way.

But it wouldn’t be a grand vision for the future of the sector, or a radical change to the way the government controls it.

It would be an exercise in tidying up and optimising the rats’ nest of legislation and regulation that currently governs higher education in England. Changes will be minor and focused on efficiency – more a screwdriver than a sledgehammer. This approach was foreshadowed by the Behan review, which recommended that:

Government and the OfS further consider the legislative powers and tools required to enable the OfS to effectively regulate.

In this respect it might be similar to higher education related bills in recent years: the 2024 Higher Education (Freedom of Speech) Act, the 2022 Skills and Post-16 Education Act, and the 2023 Lifelong Learning (Higher Education Fee Limit) Act were all screwdriver-esque, making changes to existing legislation rather than breaking new ground.

This will be my testimony

The last sledgehammer bill was the 2017 Higher Education and Research Act (HERA) – but even laws as long and unwieldy as that have to modify the legislative landscape in order to keep things running smoothly. It made modifications to the 1986 Education (no 2) Act, the 1988 Education Reform Act, the 1992 Further and Higher Education Act, the and 2004 Higher Education Act, plus many other minor and consequential amendments to all kinds of other law.

Some of this is at a surface level – if you create a new organisation like OfS or UKRI you need to change or make references to make sure it can use existing powers or is exempt from existing safeguards. Some of it is deeper and more profound – fee increases were made under the powers in the 2004 Act until these were repealed in 2018 by secondary legislation linked to HERA. And, when the time comes to use the funding method described in the 2023 Act, this situation will change again at the stroke of a pen.

It’s generally considered better parliamentary practice to use primary legislation (as in, bills that become acts) to modify other primary legislation – it can be done using secondary legislation (statutory instruments) but this tends to look like the government is trying to hide something. Witness, for example, the partial repeal of the Higher Education (Freedom of Speech) Act, which very nearly made Toby Young at the Free Speech Union need to change his trousers.

Dog’s breakfast

I’m not the first to say this, but HERA is an absolute bin fire of an act. It is long, unwieldy, maddeningly unclear, and occasionally self-contradictory. A lot of what is contained in the bill no longer applies to the way higher education is regulated in practice. Indeed, there are a number of ways in which the Office for Students does not comply with the law.

My favourite example of this is section 38, which requires the Office for Students to monitor the availability and use of arrangements for students to transfer between providers. OfS is meant to report on the conclusions it has drawn from this monitoring annually – it doesn’t. It decided to stop doing this during the Covid-19 pandemic in 2020, and have never bothered to start again despite how interested the government now are in people doing stackable credit bearing modules via the lifelong learning entitlement.

So, given this, one thing a new bill could do would be to reinforce section 38, requiring the annual collection and publication of data relating to student transfers, and empowering OfS to do any other things (via an expansion of condition F2) it may need to do to make credit transfer between registered higher education providers as simple and as painless as possible.

Similarly there are bits of HERA that are now clearly never going to be used. Asking OfS to regulate student unions is now generally seen as a non-starter, and it never really was viable. So Sections 69B, A5, and A6 (as inserted by the freedom of speech bill) probably need to go)

What else?

The messiness around academic quality and standards in HERA has been well documented, and this was even before the demission of the designated quality body and the slightly questionable position of the Behan review regarding OfS permanently taking on the old role.

If this is what is to happen, it seems silly (as Behan noted) to have all of the fine-grained documentation about the duties and responsibilities of a designated body that will likely never exist again on the statute book. The references to the DQB should be removed.

However, part of the point of the DQB was to ensure that the sector itself (including students) had more of a role in setting and maintaining academic standards, and that quality assurance would meet international standards, so it would be reasonable to hope that the opportunity would be taken to put these points into law directly. We need a new clause requiring OfS to comply with international standards, to more regularly review quality and standards on a cyclical as well as a needs-based basis, and to include the views of staff and students within quality reviews. It may be reasonable to note that OfS may choose to appoint a body itself to discharge these very specialised responsibilities.

Behan also recommended that the appointment of the chief executive officer should be a matter for OfS board rather than ministers, and that an appointed chief executive should be able to get on with appointing their own executive team rather than having two directors appointed for them by ministers. This is the way most other arms-length bodies operate, and would do a lot to make the OfS look more independent of government.

Currently HERA requires that the Secretary of State appoints (as per Schedule 1 2 (1) of HERA) the chief executive, the Director for Fair Access and Participation (currently John Blake), and the Director for Freedom of Speech and Academic Freedom (currently Arif Ahmed). The DFAP rule is a hangover from the days of the Office for Fair Access, and the DFSAF comes from the ministerial overreach that characterised the debates around freedom of speech. New legislation should modify schedule one of HERA to make it easier for the OfS to appoint (and manage) its own senior team.

Money matters

Is there a chance that a new higher education bill could deal with the enormous financial strain both students and providers are under?

The uprating of the family income thresholds for access to maintenance loans is long overdue, to the extent that the total amount paid out as maintenance loans and the average amount paid out per student is forecast to drop even as the number of UK domiciled undergraduate students increases. These thresholds can be increased using a statutory instrument – amending part 6 of the 2011 Education (Student Support) Regulations – but this has never happened.

It would be good to build a requirement to increase these thresholds by inflation each year into primary legislation, and perhaps take the opportunity to rethink the operation of the current system in parliament. Writing the regulations anew would clear up the mess that is the 2011 regulations and allow for a one off above inflation boost so that the rules do the job they were originally intended to under the scrutiny of parliament.

While we are at it, HERA requires (via a last minute intervention from Jo Johnson – remember him?) that even inflationary increases to fee levels are voted on in parliament, a situation that allowed for Michelle Donelan’s damaging “fee freeze” that, arguably, is the main contributing factor to the current financial crisis.

So let’s put a requirement to maintain the real-terms value of fees into primary legislation, via an amendment to the new (per credit) rules in the Lifelong Learning (Higher Education Fee Limits) Act, ideally before these are implemented into HERA (something that needs to happen quite soon).

Access planning

What OfS does around access and participation is largely constrained by how the Office for Fair Access worked before HERA: institutions prepare an access and participation plan, this is assessed by the OfS, and only those with a qualifying plan are allowed to charge the higher fee limit.

In practice the requirement to submit an access plan is placed on providers in the Approved (Fee Cap) registration category only (so a big chunk of the sector is not required to do very much on access except via means related to outcome metrics in condition B3). The current push to collaborate regionally and work with schools to raise aspirations and standards there is, arguably, in breach of section 36 of HERA (the freedom to decide not to work regionally and with schools isn’t one of the three carveouts in subsection 1, but the institutional autonomy duty is not exclusive).

What OfS wants to do, what may or may not actually work, and what ministers might like to see do not always align, and what was once an uncontested boon (attracting underrepresented groups into higher education) has become deeply problematised in contemporary political discourse. What would be useful would be to loosen the constraints placed on OfS access and participation work in HERA, but to set out clear duties (rather than specified methods) on the face of the bill.

Legislation saves the nation

There are clearly more short, sensible, things the government could do in a screwdriver style higher education bill. I would hope that the legislation could start in the House of Lords – allowing the knowledge and expertise of peers to shape the parameters of debate in the Commons stages.

But it would be a brave government that publishes a higher education bill (of whatever sort) that isn’t able to offer some kind of a response to the financial troubles faced by the sector. While there are issues with current legislation, even a bill that does a lot of good leaves ministers open to the accusation that they are just tinkering around the edges. A screwdriver bill might make sense, but the need for a sledgehammer remains acute.

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September 7, 2025
New legislation in Scotland increases the SFC’s powers, but only up to a point
Post-school reform in Scotland continues to chug along, following last month’s announcement of the preferred future shape of the funding body landscape.

Today sees the legislation that will enact the changes introduced in Holyrood: the Tertiary Education and Training (Funding and Governance) (Scotland) Bill.

We’ve been over how responsibilities for further education student support and apprenticeships and skills funding will shift around, and the bill also contains expected changes to the governance arrangements of the Scottish Funding Council (SFC), as well as some technical changes relating to fees and private provision.

But what’s emerged as perhaps the more pressing question for the higher education sector is how the legislation will change SFC responsibilities and powers, as these apply to its work with universities. The legislation sets out the route the Scottish government will take here, and it’s a fairly balanced one – we are still a long way from an England-style “boots on the ground” regulatory environment, likely to the relief of many.

Tell us about your finances

Much of what the bill will do legislatively is through modifications to the Further and Higher Education (Scotland) Act 2005. Section 22(4) of this gives the SFC various powers to “pull” information from universities – or strictly, from their governing bodies – but only where the funder knows that the information exists, or may exist.

The new legislation aims to create a landscape in which post-16 education bodies must “proactively notify SFC of certain developments of which the SFC might otherwise be unaware” in what the bill’s policy memorandum characterises as a “push” of information – a responsibility to notify the funding council of things it would not have known otherwise. Those who are more used to other UK systems will probably be thinking of “reportable events”.

It’s suggested that notifications would likely be sought in the following kinds of situation:
- Where a university is planning voluntary or compulsory severance (so no daily refreshing of the QMUL UCU cuts tracker for the SFC)
- Where a university has reached a certain threshold in a rapidly worsening financial viability situation
- A major data breach, such as resulting from a cyberattack.
But exactly how this will work is not specified on the face of the legislation – it would be determined by ministers via the laying of regulations, with consultation and an affirmative procedure in the Scottish Parliament, “given that they could potentially place significant obligations on post-16 education bodies.” But this does mean that there is a lack of clarity on exactly what the bill is going to mandate.

Part of the rationale for beefing up the legislation from what was previously anticipated (and let’s be honest, what was in the consultation) seems to be that ministers have not received enough clarity about the financial challenges being faced by certain universities and colleges. When the policy memorandum notes that “there can be challenges for SFC in getting information from post-16 education bodies about their financial sustainability,” you feel that really the issue is about ministerial oversight and the sense of having active levers to pull. This is given an explicit tweak elsewhere in the bill (again, quoting the policy memorandum):

New section 15A(2) allows the Scottish Ministers to seek information and advice from the SFC relating to post-16 education bodies, this could be an individual body or the bodies as a whole. Section 15A(3) requires the SFC to respond to any such request from the Scottish Ministers and the SFC may also offer information proactively when it considers it appropriate to do so. This is necessary because unforeseen circumstances may arise of which the Scottish Ministers might otherwise be unaware (and so would not know to enquire).

So what are you going to do about it?

Also in the 2005 Act is provision for the SFC to “secure the promotion or carrying out of studies designed to improve economy, efficiency and effectiveness in the management or operations of any fundable body” – but no such power exists where the matters are not related to financial support.

The new legislation would amend this, with the intention of making the SFC able to “address a broader range of matters to assist with performance improvement.” So in scope for an efficiency study would now be the needs and interests of learners:

The policy intention is that the SFC could, particularly where notified of certain adverse circumstances (such as course closures), instigate studies or reviews of the impact on students and learners so that assistance could be provided to ensure they are not negatively impacted. For example, if a college was heading towards needing to close courses before students could complete them, the SFC could help to make arrangements for the students to continue their education at different colleges.

Bringing the student interest in scope sounds sensible in theory, but there remains the question of what changes on the ground, beyond the production of a study. The 2005 Act allows the SFC to attend and speak to an institution’s governing body – the new section 15(4) of this bill will extend this to the issuing of a set of written recommendations.

So the SFC will be able to recommend setting specific improvement targets, or requiring the development of an improvement plan. And it will now even be able to publish these, “where there is wider interest amongst institutions, or the public, in the recommendations and they are not sensitive.” But it won’t be obliged to.

And what if its recommendations are ignored?

As with the SFC’s right to address meetings, already provided for in section 16 of the 2005 Act, there is no corresponding duty on the fundable body to do anything in response to the recommendations. However, as a matter of good governance and practice, the Scottish Government would expect the fundable body to consider them appropriately.

But beyond these recommendations, in the legislation as it stands there would be proper statutory powers for the SFC to influence educational institutions’ behaviour, through the issuing of guidance, which currently is “purely administrative” (though presumably always very welcome). The Tertiary Education and Training Bill will change this, so that institutions must have regard to the guidance, in the carrying out of their funded activities (note that “have regard to” is quite woolly language – something that the Office for Students has exploited frequently within the way HERA was drafted). But the SFC will have to consult both ministers and institutions in issuing guidance.

It could have been otherwise

Various alternative approaches were considered and rejected. The use of codes of conduct (“for example to address concerns around breaches of fair work conditions”) was felt to potentially lead to complex interactions with other requirements, and diminish autonomy. Plus there would have been a need for “appropriate enforcement mechanisms,” which is a whole other question.

More powers of audit and investigation were also considered and not taken forward, which would have been a move towards a “more interventionist SFC.” Likewise for stronger enforcement and intervention action, including serving enforcement notices or the removing, suspending, or appointing of officers or governing body members.

But this would have been “a fundamental change to SFC’s role which requires more careful consideration” – and would have gone way beyond what was originally consulted on.

There’s still a long way to go here – Universities Scotland is already noting the “new, very broadly defined provisions regarding the monitoring of the financial sustainability of institutions,” and raising concerns that too much change in the relationship between the SFC and universities (or universities and the Scottish government) could jeopardise the classification of universities in the Office for National Statistics classification.

The Scottish government seems to be aware of this particular risk – but there are certainly MSPs keen for the SFC to become more “interventionist”, and the legislation now faces a complicated passage through a Parliament in which the SNP does not hold a majority. The ministerial statement to Holyrood launching the bill saw Ross Greer of the Scottish Greens concerned about whether the SFC would have the ability to intervene in matters relating to fair work – higher education minister Graeme Dey said he would be happy to discuss the issue further.

For now the legislation aims at a delicate balancing act between juicing up the SFC’s role and preserving universities’ autonomy. The next question is whether this persists in the face of deeper scrutiny and parliamentary compromises.
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February 7, 2025
A bone of contention with secondary legislation

Statutory instruments – sometimes described as secondary legislation – sit on the boundary between lawmaking and regulation.

Unlike primary legislation (the Bills we all know and follow diligently through various stages of parliamentary scrutiny before they become Acts), statutory instruments (SIs) are discussed by MPs and Lords only in rare (and usually carefully specified) cases.

Most of the time, a Secretary of State decides to make regulations (yes, that’s another name for SIs) and publishes them – they become law immediately, although there is a nominal 40 day period for people to complain about them.

On this basis, you’d expect SIs to be used only in uncontroversial circumstances – to enact previously agreed policy. And that’s the way it is meant to work – policy on the face of the bill, practical implementation in the SIs. And for stuff that is too technical (or dull) to be in an SI – an independent, arms-length regulator, makes the call.

Spooky, scary

A “skeleton bill” is a piece of primary legislation that is primarily concerned with giving the Secretary of State powers to do things via SIs. These are unpopular among parliamentarians and informed observers because they put the thing that is meant to be discussed – the policy – out of bounds during parliamentary scrutiny.

In 2021 the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) defined a skeleton bill as:

where the provision on the face of the bill is so insubstantial that the real operation of the act, or sections of an act, would be entirely by the regulations or orders made under it

As with other parliamentary bodies (the House of Lords Constitution Committee, the Secondary Legislation Scrutiny Committee) it is of the belief that skeleton legislation should only be used in the most exceptional circumstances – the pandemic was cited as one example of such a situation.

Skeletons on parade

In higher education and skills we’ve had more than our fair share of skeletons: very short, technical, bills where the policy action is primarily in SIs. Let’s run them down, from newest to oldest.

The Institute for Apprenticeships and Technical Education (Transfer of Functions etc) Bill 2024 is supposed to be bringing about a new agency, Skills England. However, you will look in vain for the words “Skills England” on the face of the bill: what is there generally tidies up the implications of getting rid of the Institute for Apprenticeships and Technical Education by assigning powers and responsibilities to the Department for Education.

The Lifelong Learning (Higher Education Fee Limits) Act 2023 was promoted as providing the underpinnings of the Lifelong Learning Entitlement – in practice everything from fee levels to regulation to the speed of implementation is at the whim of the Secretary of State and a selection of SIs.

The Skills and Post-16 Education Act 2022 provides further initial LLE underpinnings, alongside a grab bag of other higher education and skills related interventions (LSIPs, essay mills, new and scary powers for OfS). But you’d be hard pushed to identify, much less offer scrutiny to, a central animating policy idea.

The Advanced Research and Invention Agency Act 2022 was fairly clear in bringing about a new research funding body, ARIA. However, if you want to know what it might research, to what level it will be funded, how it relates to other research funding or research performing bodies, or how it will be held to account for the way it uses public funds, you will be disappointed.

Let battle commence

And the Higher Education (Freedom of Speech) Act 2023 is short, and technical, but arguably it is not a skeleton bill. There is plenty of policy in there to get stuck into – indeed, it spent a day under two years before parliament (a record for the modern era). But, as it turns out, SIs held the key to the extent to which measures are implemented, and when.

It illustrates a point at which every bill may be seen as a skeleton bill of a sort: the use of SIs for commencement.

In broad terms a bill becomes law at the moment it is given Royal Assent – if the King signs it off (metaphorically) on a Tuesday morning at 10am, it is the law of the land from Tuesday morning at 10am onwards.

There may be some circumstances where this is not appropriate – for instance if a bill sets up a duty on something or someone, and then provides consequences regarding the way this duty is discharged. For this reason, you sometimes see relative (six months after assent, for example) or absolute (1 August 2025) dates in the “commencement” section of the act, allowing for a delay to get things in order or to give a grace period to allow time to comply with the new rules.

Even then, it may not always be possible to put a precise date on these things. Perhaps an act makes a new public appointment – this might need time to recruit, interview, and approve a person – and then give that person new powers. As you can’t really give powers to something, or someone, that doesn’t yet exist a Secretary of State may commence these powers only when the post is filled, and (yes) an SI is the tool to do this.

(as a fun aside, the reason I keep capitalising Secretary of State in this piece is because when an act gives powers to a secretary of state it doesn’t just mean the secretary of state of the department that “owns” the bill – it means any secretary of state. It’s a hangover from a time when there was only one secretary of state for the whole government – and the upshot of this is that, technically, Nadine Dorries could have made regulations about the use of the UK’s nuclear deterrent while she was Secretary of State for Culture. It really is a wonder that we still all exist)

I choose not to choose

As I noted the other week, a Secretary of State is equally able to decide not to use their commencement powers. There’s not really any formal or legal comeback on a choice like this – although there could be noisy complaints where the decision is a high profile one and can be seen as the expressed will of parliament. In the comments, Julian Gravatt correctly notes that the Easter Act 1928, which would sensibly fix the date of Easter as being the second Sunday in April each year, has yet to be commenced – I have yet to hear from the Free Speech Union on this breach of the democratic will of the people.

If it sounds like I’m being flippant here, be aware that there is a serious point too. If you take the fundamental standpoint that policy gets better with scrutiny and that ultimately parliament expresses the will of the people, the idea that a minister could just ignore stuff is a bit of a worry.

There are sensible reasons for this – I don’t want every element of the HESA Student specification to be discussed on the floor of the commons, I don’t really want the minister explaining to parliament why she wants to give OfS another month to properly make sense of consultation responses – but if you cast your mind over the list of acts above it does feel like an unpleasantly long time since the Commons or the Lords had a serious discussion about higher education policy that had any chance of having an impact on the way things work.

There’s a part of me that still remembers the low information nature of some of the conversations that did happen during the extended stay of the Higher Education (Freedom of Speech) Act – but if you think back even further (to the 2017 Higher Education and Research Act) it is possible, especially in the Lords, for the government to get useful and meaningful advice on their proposed actions which will have the pleasing upshot of making higher education work better.

And perhaps we need more of that as we design the next phase of higher education policy.

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January 19, 2025