How the skills bill would increase and clarify the government’s legal powers

24 May 2021, 6:00

The Skills Bill drops hints as to the direction of policy in the sector, writes Mark Taylor

The skills and post-16 education Bill gives us clues as to where the government is headed on policy in the further education sector.

Let me talk you through a few points of interest (or, at least, which are of interest to a lawyer…)

Local skills improvement plans

If the legislation had stated that colleges must have a mission to focus on local skills, this could arguably have changed the mission of colleges and even their charitable objects.

But by saying there is a requirement on colleges to think of local skills plans, it’s not giving them a new mission, but an obligation with which they must comply.

Otherwise, college boards might have had to act differently, and there could have been complicated changes under charity law. So the way this new requirement has been phrased is useful.

Colleges already have many statutory obligations, so adding a few more shouldn’t change their charitable status. However, it will add to the regulatory burden on colleges.

The obligations are not to absolutely comply with a local skills improvement plan. The obligations are to “have regard” to it and to work with employers to develop it. This should allow some leeway for colleges to not follow every aspect of a local skills improvement plan, provided that any such decision is properly reasoned.

The risk for colleges is the intervention powers that the FE Commissioner now has into colleges that are not meeting local needs. Modern colleges are not used to being told what provision to deliver. Intervention by the secretary of state purely because of the type of college delivery would be a shock to the system.

It would also potentially raise questions as to whether that college could continue to be classified as a private body, rather than a public body, for Office for National Statistics purposes.

In setting and enforcing a local skills improvement plan, we have to hope that employers and the secretary of state recognise the diversity of mission of colleges.

The strength of the further education sector is not built on an army of clone-like colleges. The sector is stronger because no two colleges are alike. Not every college (particularly specialist designated institutions) will be able to cater for every part of a local skills improvement plan.

Regulation of independent training providers

The bill gives the secretary of state the power to make regulations around keeping a list of (mainly) independent training providers.

Funding authorities (including devolved ones) will not be able to fund or allow sub-contracting with a provider not on the list.

We can take from this that the secretary of state is clearly willing to increasingly regulate devolved adult educational delivery.

The new list will focus on learner protection and concerns about provider failure.

This is a market that clearly concerns government. We will wait to see what the entry requirements are and how they differ from existing checks.

Mergers and insolvency law 

The bill clarifies the government’s power to require a college to merge. These are powers which government arguably already had, but did not use. 

That the Bill clarifies this shows that, firstly, past failure to use these powers may have been due to an uncertainty within Whitehall over its ability to do so. Secondly, if government feels the need to make clear that it has these powers, then it thinks that it may need to use them in the future.

An intervention regime in which colleges are forced to merge would be another significant shift for the sector.

The Bill also clarifies insolvency law surrounding colleges. While this may not have changed the law, the fact the government is looking to make sure it works shows they’re still planning to use it in the future.

Not in the bill

Many elements of the white paper are not reflected in the Bill, such as changes to college governance and funding.

This is likely to be positive for the sector, as legislation for legislation’s sake would only add to a college’s burden.

However, it does mean that we must wait for funding and policy changes to see what the future holds.

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