What the bill says

December 5, 1997

The Teaching and Higher Education Bill gives education secretary David Blunkett - and his successors - sweeping new powers. THES reporters spell out these powers and the wide-ranging reaction to them.

The Teaching and Higher Education Bill

Part 1 of the bill concerns the teaching profession. It: l establishes a General Teaching Council for England and allows for a separate one for Wales. Teachers in state schools can be required to register with the GTC.

l enables the secretary of state to require professional qualifications for new headteachers and successful completion, in line with specified standards, of an induction period for new teachers.

l gives the chief inspector of schools power to "inspect and report" on teacher training institutions. At "all reasonable times" the chief inspector, and his Ofsted inspectors, will have "a right of entry to the institution, and a right to inspect, and take copies of, any records kept by the institution, and any other documents containing information relating to the institution, which he considers relevant to the exercise of his functions". This does not give him the right to inspect courses other than teacher training.

Part 2 concerns student support.

Clause 16

l allows the secretary of state to provide grants or loans to students in higher and further education. It enables him to make regulations on who is eligible, how much they are entitled to, what mode of attendance qualifies, how loans are to be repaid, what interest is to be charged and under what circumstances loans can be cancelled.

l it allows him to make regulations on the collection of debts including power to order employers or government departments (including the Inland Revenue) to collect the money and pass it to the the secretary of state.

l it pegs increases in the total amount of grant (to cover fees) to "such index as may be specified" in the regulations unless the increase is agreed by affirmative procedure in Parliament.

THES analysis: this clause allows the minister to extend loans to further education students, to part-timers and postgraduates. It would make it easier to privatise the loan system since it gives the power to set a real rate of interest.

The legislation does not specify pegging increases to the retail price index: indexes of university costs generally rise faster.

Clause 17

Allows for transitional arrangements.

Clause 18

contains the powers to control fees. It: l amends the 1992 Further and Higher Education Act to give the secretary of state new powers. These are to "impose" conditions on the further and on the higher education funding councils for England and Wales requiring them in turn to make it a condition of grant to any institution that the governors of that institution ensure that - in further education - no fees are payable "by any specified class of person in respect of any specified matters in connection with their attending courses of any specified description" and - in higher education - that the fees payable for the same categories of people are "equal to the prescribed amount". (The "prescribed amount" is the maximum grant the secretary of state can make to cover fees. The bill does not set the fee since this is the role of the institution - see below.) l allows the funding councils to require governors to repay "in whole or in part" with or without interest any sums received by them if they fail to comply.

l includes within the powers any "relevant institution". This is defined as "any college, school, hall or other institution connected with the institution."

THES analysis:

Clause 18(6) that allows the funding council to require repayments if an institution fails to comply is widely drawn so that the funding council could impose "such further requirements... as may be specified" in addition to repayment. It appears that repayments could, as a result of clause 18(8) (see below) be required from an institution's non-council income.

Clause 18(8) gives particular cause for concern since it weakens the protection which institutions were given by the 1992 act and enables the secretary of state and the funding councils to have more direct influence over the work of individual institutions.

The previous government conceded amendments to the 1992 act which prevent the secretary of state from imposing requirements on the councils relating to individual institutions or relating to essentially academic matters (particular courses, admissions criteria, staff appointments). The new bill negates these prohibitions, allowing the secretary of state to order the funding council to impose a condition relating to the fees on the governing body of a relevant institution with regard to a particular course. This means that technically the secretary of state could, by forcing it to charge, effectively prevent a particular university teaching a particular course.

The 1992 Act also restricted the power of HEFCE and HEFCW to impose conditions on institutions relating to money "derived otherwise than from the council" and required them to consult institutions and representative bodies before any conditions were imposed. Both these restrictions are removed by clause 18(8) in respect of orders on fees.

Clause 19 gives the funding councils the power to specify which colleges, halls etc are "connected institutions" for the purposes of the legislation.

Clause 20 l defines "fees" as "tuition, enrolment or other fees payable in respect of, or in connection with, attendance on a course." It covers further and higher education courses in all institutions which receive recurrent grant from the funding councils.

l extends the power to make regulations under clause 16 to courses provided wholly or partly outside the United Kingdom.

THES analysis: this clause allows institutions to charge examination fees charged by outside bodies. But it is not unambiguously clear that it allows them to charge graduation, university examination fees or residence fees in addition to the "prescribed amount".

Clauses 21 and 22 make the same rules for Scotland with the exception that there is no corresponding removal of prohibitions and restrictions on SHEFC. It appears therefore that SHEFC will have to consult before imposing new requirements and would not be able to require repayment from private funds.

Part 3 sets out the terms under which young employees are to be released from work for study.

The financial notes on the bill put the cost to employers of part 2 at between Pounds 45 million and Pounds 90 million from 2000 to 2010 plus an annual cost of between Pounds 23 and Pounds 42 million by 2010. The cost to employers of part 3 is put at between Pounds 60 million and Pounds 130 million a year.

Timing: Clauses 16 to 22 will come into force on the day on which the Act is passed.

THES analysis: many old universities have royal charters. It is a common feature that such chartered institutions are enabled to "demand and receive fees". Through the device of imposing fee collection requirements on institutions via the funding councils, and effectively prohibiting "top-up" fees, the bill appears to be attenuating this charter power. The bill carefully does not give the minister power to levy fees himself. The expectation must be, however, that the financial memorandum which has to be agreed under previous legislation between each institution and the funding council will contain an undertaking not to exercise its charter powers to charge above "the prescribed amount" in respect of whichever students and courses are specified.

Additional advice from Dr Dennis Farrington, author of The Law of Higher Education (Butterworths).

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