A coach and horses driven through independence
Buried in a schedule of amendments at the back of the Learning and Skills Bill are provisions that will give government the most swingeing powers to intervene in the affairs of FE colleges.
Even more remarkable is that these provisions have been introduced without consultation or warning - unlike the much-heralded modifications to college instruments and articles of government last year - and yet they have the potential to destroy any remaining illusion of independence for governing bodies.
Freedom from local authority control is about to be replaced, so it seems, by control from Whitehall which will repose ultimate power in the Right Honourable David Blunkett.
The device used for strengthening the hand of central government is one which has been tried and tested over many years. The use of subjective language, such as "if the minister is satisfied that" or "if the minister thinks that it is expedient" to exercise this power or that, is part of a long-running game in which Parliament (or more accurately Whitehall) tries to draft legislation which is "bomb-proof" from legal challenge.
Not surprisingly, the judiciary has fought back against a tendency it regards as"repugnant" to the common law tradition that ministers must be answerable to the courts. In rulings, judges have held that a minister's judgment may bechallenged in exceptional circumstance where there has been a misdirection as to the facts.
However, let nobody doubt that this new drafting technique makes it very difficult for a person who is aggrieved by a minister's decision to apply to the courts for it to be quashed.
Once the minister is at liberty to be "satisfied", the grounds exist for the exercise of statutory power and the courts will be reluctant to interfere. David Blunkett will have the power to intervene by removing governors and appointing replacements if any one or more of the following conditions applies:- * If he is satisfied that a college's affairs have been or are being "mismanaged" by its governing body. This is modelled on the existing power in the Further and Higher Education Act 1992 (only exercised on two occasions), save that the Secretary of State will no longer need to wait for a recommendation from the Further Education Funding Council or its successor, the new Learning and Skills Council. he Department for Education will have greater freedom of action.
* If the Secretary of State is satisfied that a governing body has failed to discharge any duty. This could cover a multitude of obligations, from acting ultra vires (beyond their powers) to breaching the articles of government or non-disclosure of information to the DFEE.
* If he is satisfied that a governing body has acted "unreasonably" - ie, in a way that no reasonable governing body would.
* If Ofsted, the Adult Learning Inspectorate or the Chief Inspector of Learning say that the college has "serious weaknesses" or is failing to give an"acceptable" standard of education. This is an entirely new ground for intervention and, although objective rather than subjective language is used here, the words are sufficiently loose to allow the Secretary of State a wide discretion in deciding whether to take action. Indeed, judges will generally be most reluctant to evaluate whether educational standards are likely to be "acceptable".
Once the Bill is enacted - and provided that one of the above four conditions is fulfilled - the Secretary of State will have the right to remove any or all members of a governing body and appoint new governors, not only to the vacancies he has created, but to any other vacancies that may have arisen naturally.
He may also issue such directions to governors as he "thinks expedient" relating to their powers and responsibilities. Should these conflict with some other statutory duty that requires the Secretary of State to obtain the governing body's opinion, this latter duty can be disregarded.
It is the possible combination of powers which threatens to drive a coach and horses through the principle of corporateindependence which lies at the heart of the 1992-93 reforms.
As if this were not enough, the new Bill will give to the Learning and Skills Council power to appoint nominees for two vacancies on a governing body. It remains to be seen whether this is intended to be in addition to the existing powers of the FEFC to appoint up to two governors.
Members of the council can also be appointed or removed by the Secretary of State, thuscompleting a picture of power in which control is more firmlycentred on Whitehall than ever before.
The claim that colleges would be free to plough their own furrows sounds rather hollow. Unless the Government moves swiftly to rebuild the confidence of governors, there is a danger that these latest measures will further damage recruitment to an extent where it may no longer be possible to rely on the goodwill of unpaid volunteers.
John Hall is head of educationlaw at Eversheds, solicitors, London EC4.