The Post 16 Education and Skills Bill - what might be in it (12 May 2021)

12 May 2021

The Queens Speech promised more than thirty government bills for the year ahead but the fact that Number 10 has chosen to highlight its further education bill is an official vote of confidence in colleges. Ministers have big ambitions and there are tough challenges ahead but, for the first time in a while, improving skills is seen as a key way to meet them. This was the message of the FE white paper published by DfE in January. What comes next will be the government publication of a Post 16 Education and Skills Bill next Tuesday and a set of consultations on changing policy. We've said a lot at AoC about the white paper in the last few months. This note explains what might be in the Skills and Post 16 Education Bill.

Aim of the legislation

The Department for Education has lots of power to shape post 16 education through its grant, levy and student loan budget; the directions it can give to qualification and inspection agencies and the legal powers that it already has. It's been several years since DfE ministers presented an education bill to Parliament but this is because they haven't needed to. The Secretary of State acquired wide ranging powers over education in successive pieces of legislation from the late 1980s to the early 2010s so there isn't much left to legislate for. There will, however, be a few key changes:

Skills Entitlement

DfE is now funding an all age level 3 entitlement via its National Skills Fund with money routed to colleges, via new skills bootcamps and out for contract. The sums are relatively small (£80 million in 2021-2) given DfE's total post 18 spending (about £25 billion) but it's an important reform and it's possible that the bill will write this entitlement into law which will extend existing entitlements to level 2 qualifications and to level 3 for those under 25. These are entitlements for those who do not already have them and they have not been tested in the courts but, if included in legislation, will shape budget-setting and also guide the decisions of Mayoral Combined Authorities who, with the Mayor of London, now control more than 50% of adult education budget spending.

Lifetime loan allowance

Another reform recommended by Philip Augar's 2019 Post 18 review was a lifetime allowance for student loans equivalent to four year's full-time costs but available to individuals for a more flexible combination of higher education courses. This is a big but complicated change which requires significant changes to rules, procedures and the Student Loan Company's IT systems so is not scheduled to take effect until 2025. DfE said in its January statement on the Post 18 review that there will be a consultation this summer. I think they'll need several consultations to work out the details so I expect the Education Secretary to ask for powers in the legislation to set regulations to move this ahead.  

Higher technical qualifications

A third set of Post 18 review recommendations that may be included in legislation relate to the regulation of higher technical qualifications. This has been a mess for more than thirty years and it will take more than a clause in a bill to cut this particular Gordian Knot but I'd expect adjustments to the powers of the Institute for Apprenticeships and Technical Education and the Office for Students to help government move this agenda forward. 

Skills plans ("Skills accelerator")

The FE white paper set in motion a new form of local skills planning which government has now branded as its Skills Accelerator programme. DfE is asking colleges to work together and with employer representative organisations to meet local needs. This is an approach that has been tried before but the difference this time is that DfE does not seem to be relying on intermediate levels of government to organise matters. The expectation is that their innate sense of public purpose backed by some short-term funding (up to £65 million, only available for 2021-2) will get colleges to work constructively together and with organisations like Chambers of Commerce to define local needs, to identify growth areas and to work through how best to meet them. It's a big ask, will require sustained effort over several years and will require government to do other things to remove obstacles but colleges are always getting onto the task set out a few weeks ago in the Skills Accelerator prospectus. Legislation is needed to make this happen but I've already pointed officials to "college duty to co-operate" powers that used to exist in law but which were repealed before they were needed. Sometimes government needs a law to signal that it's serious and to use if absolutely necessary.

Duty on colleges to review their provision

Another way to ensure that colleges take local skills planning seriously is hinted in official statements today that colleges will have a duty to review their provision. This could be another case of passing a law to enforce good behaviour that is already happening but, again, is likely to be a reserve power to be used only where absolutely necessary. In effect, it might give some statutory power behind the FE commissioner recommendations but it will be interesting to see the scope of institutions covered by this change. There are many cases across England where colleges compete with academies, universities and training providers for the same students or similar courses and always a risk that DfE will add an obligation to one sector while allowing others to cherry pick the easy-to-run, better funded activities. 

Intervention powers in case of failure 

DfE already has lots of ways to ask college governing bodies to do what ministers want them to do, as can be seen if you look at the extensive intervention letter pages on the department's website. The National Audit Office commented last year that half of colleges were either in early or full intervention and provided lots of evidence that underfunding might be contributing to the problem. DfE promised a faster, more targeted intervention system in the January 2021 FE white paper but it is not yet clear what extra powers are needed. It is only four years since Parliament approved the Technical and Further Education Act 2017 and gave DfE powers both to trigger a college insolvency while transferring all its students, assets and liabilities to another organisation. With the power of life-and-death over college corporations, where else does the department need to go? I'm not sure and I've advised officials to be careful about trampling over employment law when it comes to action against principals of colleges in trouble. I'll be reading these clauses of the bill with interest but I expect there may be a new duty on colleges to obey directions from the Education Secretary or a power to ask the chair of governors to resign. 

Free speech, apprenticeships, related party transactions when college sponsor academies and other hot topics

The government is taking forward a separate Free Speech (Higher Education) Bill which is likely to apply to almost all FE colleges because 170 are registered higher education providers while those who aren't, offer HE courses under franchise arrangmeents with universities. We need to see the details.

Apprenticeships may be covered in the bill but there are not its main subject because the message from the white paper is that government is completing the reform plans started in 2015. DfE's recent consultation on flexi-apprenticeships may require legislation.

DfE only gets one opportunity every year or two to legislate so it is possible there will be many more measures in the legislation than advertised to date in the FE white paper or government press releases. The fact that the bill is being published in a few day's time may mean that it's relatively short but it's always possible that DfE itself will present important amendments to Parliament during its passage. This happend ten years ago when the department responded to the Office of National Statistics reclassification of colleges as public sector organisations by adding in some last minute changes to the 2011 Education Act that removed some key regulations. This time is different but the speed of policy making and events may change the bill as it is debated. However, unlike in the recent past, a government with an 80-seat majority has the power to set the agenda and which amendments to accept.

Parliament and colleges

If you've got this far, you'll realise that the Post 16 Education and Skills Bill might contain some dull clauses of interest only to lawyers and FE specialists. This is true but I think it's also an opportunity for MPs and Peers to discuss the much more important challenges facing our society: 

  • how to ensure that everyone has the knowledge and skills they'll need in the years to come to flourish in our society and economy.
  • how to help our skills system plan for changes to come, including those brought about by automation, the need for health security and the move to net zero 
  • how to keep the content of education and training reliable and relevant - not just for current employer needs but those of the future
  • what needs to happen when things go wrong

Julian Gravatt
Deputy Chief Executive
11 May 2021, 930am updated 12 May 2021