'Legal action seems likely over the Sainsbury review'

Legal expert Selman Ansari predicts that the lack of consultation over the government's plans to overhaul post-16 education could lead to legal challenges

Selman Ansari

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On 8 July, the government published simultaneously its Post-16 Skills Plan and the report of the independent panel on technical education, known as the Sainsbury review.

There was little fanfare, given that these documents chart a radical course for skills training in the UK. What is even more surprising is the government’s apparent reluctance to consult on what it proposes to do, particularly given the impact on existing accrediting organisations and training providers – as well as their current and future learners. 

In his foreword to the Skills Plan, then skills minister Nick Boles wrote that the Sainsbury panel report’s proposals were all accepted and were to be implemented, subject to any budgetary constraints, “unequivocally”.

However, Mr Boles went on to say that more detail would be set out later in the year as the government developed its plans. He also stated that such detail would, in particular, be put to employers, colleges and other training providers “so they can rightly shape and lead the agenda”.

'The government's missed a few steps'

The skills and FE sector has been the subject of much regulatory and political upheaval in past years. However, the process that the government undertook in coming to announce the Skills Plan, which potentially cuts down the number of awarding organisations from the current 209 registered with Ofqual to 15, is rather curious and the government may have missed a few steps in its eagerness to provide certainty.

The Skills Plan was not the subject of any consultation in draft form.

As noted above, its policy announcement adopts the proposals set out in the Sainsbury panel report. This report was led by Lord Sainsbury, a Labour peer, independent of government. Mr Boles suggests in his foreword that the Sainsbury panel consulted “widely”. But however widely the panel consulted, it could not have consulted on a policy proposal, it could have only consulted on what would become its findings.

This seemingly semantic distinction becomes rather important when it is considered that the findings were adopted by the government “unequivocally”. Clearly, Lord Sainsbury could not have been in a position to consult on the basis that his findings would inevitably become law. Even the government cannot consult on that basis, as it has to allow for the fact that the result of consultation might be that proposals are changed or abandoned.

In any event, it is clear that, whatever consultation Lord Sainsbury undertook, it was never intended to be a substitute for what would normally be expected from the government for a major overhaul of policy. In fact, his report is careful to highlight the need for further public dialogue about what is proposed.

Proposals are 'bold and far reaching'

Given that the Skills Plan and the Sainsbury review were issued simultaneously, no-one who was consulted by Lord Sainsbury’s panel could have known what the report would conclude and that the government proposed to adopt such conclusions without further consultation. This underlines the curious nature of a policy document (a “white paper”) that has not been preceded by a proposals document (a “green paper”) but instead accompanied by a research document.

Not only is this a curious process to undertake in relation to proposals which are “bold and far reaching”, not minor or technical tweaks, but also the Sainsbury review makes a number of factual findings which the Skills Plan repeats in order to justify the government’s adoption of the proposals.

For example, off the back of the Sainsbury review, the government accepts that “standards and qualifications are not always set by actual employers”, qualifications are “often set by a confusing mixture of awarding organisations and intermediary bodies, which have not provided an effective voice for business”, that “there are too many overlapping and often low-value qualifications”, and, “the system is complex and difficult to navigate for both young people and adults”.

These are bold findings which have led to bold policy conclusions; it would be expected that the government would have tested these findings widely before adopting them.

'Most of the UK's training market won't survive' 

The law on consultation is contained in the so-called “Sedley principles”, established by case law. In short, sufficient reasons for proposals must be provided to allow intelligent consideration and response, adequate time must be given for response, and, that the product of any consultation must be conscientiously taken into account in finalising proposals. For the reasons set out above, it is difficult to see how this has occurred in this case.

If the Skills Plan ultimately comes to fruition, the procurement process to create the 15 routes will represent a brutal cull which most of the current UK training market will not survive. Legal action seems likely. But those that are unhappy with the process by which the Skills Plan has been produced cannot sit on their hands.

Firstly, judicial review challenges of government decisions must normally be brought promptly and, in any event, within three months of the decision being made. Secondly, the government has spoken with regard to the Skills Plan proposals; whilst further detail may yet be consulted on, the clock on any successful legal challenge to the “bold and far reaching” reforms has begun ticking.

Selman Ansari is a senior consultant at Bindmans LLP

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Selman Ansari

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