Tag: legislation

  • Sledgehammers, screwdrivers, and primary legislation

    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 Some of it is deeper and more profound – fee increases were made under the powers in the 2004 Act until these were repealed in 2018 by secondary legislation linked to HERA.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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  • Missouri governor signs legislation securing students’ rights to freely associate on campus

    Missouri governor signs legislation securing students’ rights to freely associate on campus

    Missouri has passed a law protecting the right of students to gather and speak on campuses across the state. On Wednesday, Missouri Gov. Mike Kehoe signed into law SB 160, which defends the freedom of student organizations to set leadership and membership requirements that are consistent with their beliefs. 

    Although the bill was later amended to include provisions unrelated to the student organization protections for which we advocated, the final law still marks a meaningful victory for students at Missouri’s public colleges and universities.

    The First Amendment guarantees the right to freely associate with others who share their beliefs — or not associate with those who don’t. FIRE has consistently opposed policies that force student groups to eliminate belief-based membership rules to gain official college recognition. As we said in March when Utah signed similar protections into law, it makes little sense, for example, “to force a Muslim student group to let atheists become voting members or for an environmentalist student group that raises awareness about the threats of climate change to allow climate change skeptics to hold office.”

    In a letter to Missouri’s legislature supporting SB 160, we explained that the right to associate freely extends to students at public universities and to the student organizations they form. The Supreme Court agrees, and has repeatedly upheld this principle, affirming in Healy v. James that public colleges cannot deny official recognition to student organizations solely based on their beliefs or associations. Similarly, in Widmar v. Vincent, the Court ruled that a public university violated the First Amendment by denying a religious student group access to campus facilities because of its religious beliefs.

    However, the Court’s decision in Christian Legal Society v. Martinez upheld the constitutionality of “all-comers” policies — requiring student organizations to accept any student as a member or leader, even those who oppose the group’s core beliefs. But the ruling applies only when such policies are enforced uniformly. In practice, universities often apply these policies selectively. For example, some religious organizations have been forced to accept members and leaders who do not share their faith, while secular groups have been allowed to set their own membership and leadership requirements without administrative intervention. 

    This selective enforcement results in viewpoint discrimination. SB 160 is meant to correct that imbalance. It states that schools cannot take any action against a student association or potential student association:

    (a) Because such association is political, ideological, or religious; 

    (b) On the basis of such association’s viewpoint or expression of the viewpoint by the association or the association’s members; or

    (c) Based on such association’s requirement that the association’s leaders be committed to furthering the association’s mission or that the association’s leaders adhere to the association’s sincerely held beliefs, practice requirements, or standards of conduct.

    With the enactment of this bill, Missouri joins a growing number of states strengthening protections for the First Amendment rights of student organizations on campus. 

    FIRE thanks Missouri lawmakers and Gov. Kehoe for affirming that students don’t shed their constitutional rights at the campus gates.

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  • China Select Committee Launches AI Campaign with Legislation to Block CCP-Linked AI from U.S. Government Use

    China Select Committee Launches AI Campaign with Legislation to Block CCP-Linked AI from U.S. Government Use

    FOR IMMEDIATE RELEASE:

    June 25, 2025

    Contact:

    Alyssa Pettus

    Brian Benko

    WASHINGTON, D.C. — As the House Select Committee on the China opens its landmark hearing, “Authoritarians and Algorithms: Why U.S. AI Must Lead,” Committee leaders are unveiling new bipartisan legislation to confront the CCP’s growing exploitation of artificial intelligence.

    Chairman John Moolenaar (R-MI) and Ranking Member Raja Krishnamoorthi (D-IL) today announced the House introduction of the “No Adversarial AI Act”— bipartisan legislation also being championed in the Senate by Senators Rick Scott (R-FL) and Gary Peters (D-MI). The bill would prohibit U.S. executive agencies from acquiring or using artificial intelligence developed by companies tied to foreign adversaries like the Chinese Communist Party. The House legislation is cosponsored by a bipartisan group of Select Committee members, including Reps. Ritchie Torres (D-NY) and Darin LaHood (R-IL). 

     

    “We are in a new Cold War—and AI is the strategic technology at the center,” said Chairman Moolenaar. “The CCP doesn’t innovate—it steals, scales, and subverts. From IP theft and chip smuggling to embedding AI in surveillance and military platforms, the Chinese Communist Party is racing to weaponize this technology. We must draw a clear line: U.S. government systems cannot be powered by tools built to serve authoritarian interests.”

    What the No Adversarial AI Act Does:

    • Creates a public list of AI systems developed by foreign adversaries, maintained and updated by the Federal Acquisition Security Council.
    • Prohibits executive agencies from acquiring or using adversary-developed AI—except in narrow cases such as research, counterterrorism, or mission-critical needs.
    • Establishes a delisting process for companies that can demonstrate they are free from foreign adversary control or influence.

     

    “Artificial intelligence controlled by foreign adversaries poses a direct threat to our national security, our data, and our government operations,” said Ranking Member Raja Krishnamoorthi. “We cannot allow hostile regimes to embed their code in our most sensitive systems. This bipartisan legislation will create a clear firewall between foreign adversary AI and the U.S. government, protecting our institutions and the American people. Chinese, Russian, and other adversary AI systems simply do not belong on government devices, and certainly shouldn’t be entrusted with government data.”

    Senator Rick Scott said, “The Communist Chinese regime will use any means necessary to spy, steal, and undermine the United States, and as AI technology advances, we must do more to protect our national security and stop adversarial regimes from using technology against us. With clear evidence that China can have access to U.S. user data on AI systems, it’s absolutely insane for our own federal agencies to be using these dangerous platforms and subject our government to Beijing’s control. Our No Adversarial AI Act will stop this direct threat to our national security and keep the American government’s sensitive data out of enemy hands.”

    The legislation marks a major action in the Select Committee’s AI campaign, which aims to secure U.S. AI supply chains, enforce robust export controls, and ensure American innovation does not fuel authoritarian surveillance or military systems abroad.

     

    Today’s hearing and legislation continues the series of new proposals and messaging the Committee will roll out this summer to confront the CCP’s exploitation of U.S. innovation and prevent American technology from fueling Beijing’s AI ambitions.

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  • Senate Introduces Legislation to Increase Federal Minimum Wage to $15 per Hour – CUPA-HR

    Senate Introduces Legislation to Increase Federal Minimum Wage to $15 per Hour – CUPA-HR

    by CUPA-HR | June 24, 2025

    On June 10, Senators Josh Hawley (R-MO) and Peter Welch (D-VT) introduced the Higher Wages for American Workers Act (S. 2013). The Higher Wages for American Workers Act would amend the Fair Labor Standards Act (FLSA), raising the federal minimum wage to $15 per hour and directing the secretary of labor to adjust the minimum wage annually based on inflation.

    Higher Wages for American Workers Act

    The bill proposes to increase the federal minimum wage from $7.25 to $15 per hour beginning January 1 of the first year after enactment. Each year after, the secretary of labor is directed to increase the minimum wage annually by “the percentage increase, if any, in the Consumer Price Index for Urban Wage Earners and Clerical Workers.”

    Although the federal minimum wage has not been increased since 2009, several states have increased their state minimum wage above the current $7.25 per hour. As of January 1, 2025, 30 states and the District of Columbia have minimum wage laws set above the federal level, and 10 states and the District of Columbia have a minimum wage of $15 per hour or higher. All other states must follow the minimum wage set by Congress through the FLSA.

    Looking Ahead

    While legislation has been introduced in recent years to increase the federal minimum wage, calls to increase the level to $15 per hour have mostly come from Congressional Democrats. It is therefore notable that Republican Senator Josh Hawley is leading efforts on this issue. It remains to be seen if enough Republicans in the Senate will also support this effort to give the legislation the chance to receive 60 votes to bypass the filibuster and whether House Republicans will take up similar legislation.

    CUPA-HR will keep members apprised of further developments related to federal minimum wage laws.



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  • Sen. Marshall Proposes Legislation to Fulfill Trump Campaign Pledge on “No Tax on Overtime” – CUPA-HR

    Sen. Marshall Proposes Legislation to Fulfill Trump Campaign Pledge on “No Tax on Overtime” – CUPA-HR

    by CUPA-HR | May 12, 2025

    On May 6, Senator Roger Marshall (R-KS), along with Sens. Tommy Tuberville (R-AL), Jim Justice (R-WV), and Pete Ricketts (R-NE), introduced the Overtime Wages Tax Relief Act, which is intended to fulfill President Trump’s campaign promise to eliminate taxes on overtime pay. The proposal provides an income tax deduction for overtime pay up to a certain threshold. Marshall explained that his goal with the legislation was to target the benefit to lower- and middle-income workers in industries and occupations that traditionally pay overtime.

    Under the proposal, individuals would be able to deduct up to $10,000 of overtime pay from their income taxes. For married couples, the cap would be set at $20,000. This is an “above-the-line” income tax deduction, so workers would have the ability to claim the deduction whether they itemize their deductions or take the standard deduction.

    Additionally, the proposal phases out the benefit for top earners, identified as individuals earning $100,000 or more and married couples earning $200,000 or more. The deduction is reduced by $50 for every $1,000 in income the individual or married couple earns above their respective threshold.

    The legislation also includes reporting obligations for employers “to ensure transparency and accuracy in claiming the deduction.” Employers will be required to report overtime earnings to employees in their annual wage and tax statements.

    Marshall is hoping to have the legislation included in the Republican’s fiscal year 2025 budget reconciliation bill, which is expected to cover everything from border security to extensions for the expiring 2017 tax cuts President Trump signed into law during his first term.

    CUPA-HR will keep members apprised of additional updates on this bill and others related to overtime laws and regulations.



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  • FIRE-supported Utah legislation secures students’ rights to freely associate on campus

    FIRE-supported Utah legislation secures students’ rights to freely associate on campus

    Yesterday, Utah Gov. Spencer Cox signed into law HB 390, a bill that will strengthen students’ freedom of association at the state’s public colleges and universities. Sponsored by Rep. Karianne Lisonbee and Sen. Keven Stratton, the bill ensures that religious, political, and ideological student organizations can set their own membership and leadership requirements without interference from campus administrators.

    The First Amendment guarantees citizens the right to freely associate with others who share their beliefs — and to not associate with those who don’t. FIRE has consistently opposed policies that force student groups to eliminate belief-based membership criteria to gain official recognition by their college. 

    After all, the members of a group naturally shape its direction, and allowing individuals who fundamentally oppose its mission to vote or hold leadership positions can undermine the group’s very purpose. It makes little sense, for example, to force a Muslim student group to let atheists become voting members or for an environmentalist student group that raises awareness about the threats of climate change to allow climate change skeptics to hold office.

    As we noted in our letter to Utah’s Senate Education Committee, the right to associate freely extends to students at public universities and to the student organizations they form. The Supreme Court has repeatedly upheld this principle, affirming in Healy v. James that public colleges cannot deny official recognition to student organizations solely based on their beliefs or associations. Similarly, in Widmar v. Vincent, the Court ruled that a public university violated the First Amendment by denying a religious student group access to campus facilities because of its religious beliefs.

    Despite these clear precedents, the Supreme Court ruled in Christian Legal Society v. Martinez that universities can implement “all-comers” policies, meaning student organizations must accept any student who wants to join as a member or leader, even if that student openly opposes the group’s core principles. Following the ruling, FIRE President and CEO Greg Lukianoff reaffirmed our commitment to freedom of association, saying, “FIRE will continue to defend the rights of expressive campus organizations to unite around shared beliefs and uphold the principle that College Democrats can be Democrats, College Atheists can be atheists, and College Christians can be Christians.”

    Although Martinez found that all-comers policies are constitutionally permissible when applied uniformly, institutions with such policies have frequently enforced them selectively. For example, some religious organizations have been forced to accept members and leaders who do not share their faith, while secular groups have been allowed to set their own membership and leadership requirements without administrative intervention. This selective enforcement constitutes viewpoint discrimination, undermining the very protections that the First Amendment guarantees.

    HB 390 ensures that Utah’s public universities cannot single out student groups for holding firm to their beliefs. The bill states: 

    An institution may not deny any benefit or privilege that is available to any student organization, or discriminate against, a religious, political, or ideological student organization:

    1. because such student organization is religious, political, or ideological;

    2. on the basis of protected expressive activity engaged in by the student organization or the student organization’s members; or

    3. based on a requirement that a leader of the student organization:

      1. affirm or adhere to the sincerely held beliefs of the student organization;

      2. comply with a standard of conduct the student organization establishes; or

      3. further the mission, purpose, or standards of conduct of the student organization, as these are defined by the student organization.

    With the enactment of this bill into law, Utah joins a growing number of states strengthening First Amendment protections for belief-based organizations on campus. 

    FIRE applauds Rep. Lisonbee and Sen. Stratton, the Utah Legislature, and Gov. Cox for standing up for students’ rights and ensuring true freedom of association in higher education.

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  • Search for Higher Ed Legislation Proposed in Congress

    Search for Higher Ed Legislation Proposed in Congress

    Welcome Inside Higher Ed‘s legislation tracker, a database of the key higher-ed related bills lawmakers have proposed in Congress. Few will likely become law, but the proposals offer insights into how Republicans and Democrats want to reshape the sector.

    So far, lawmakers have proposed 31 bills that would directly impact colleges and universities.

    You can search the database below to learn more about each proposal. The current session of Congress runs through the end of 2026 which means this list will grow. We’ll update the database regularly, so please check back for updates.

    Questions, comments or think we’re missing a bill? Email [email protected].

    The database was last updated March 20.

    More Coverage of Higher Ed and Congress:

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  • New legislation in Scotland increases the SFC’s powers, but only up to a point

    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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  • A bone of contention with secondary legislation

    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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  • National Student Ombudsman legislation passed, leader announced

    National Student Ombudsman legislation passed, leader announced

    The new independent National Student Ombudsman will be led by Sarah Bendall (L), pictured with Jason Clare, in an image posted to social media on November 29, 2024. Picture: Facebook



    By: Erin Morley

    in Policy & Reform, Top Stories


    December 9, 2024

    A highly experienced lawyer has been appointed to lead the anticipated university watchdog and complaints function, after the legislation passed in the last sitting week of parliament.

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