It's all about control
Though the powers of intervention given to the Secretary of State could have been written by Henry VIII's Lord Great Chamberlain, the remainder of the Learning and Skills Bill is thoroughly modern. In footballing terms, the Bill's drafting is pure David Beckham: carefully prepared clauses arch this way and that to find their target with unerring accuracy. And the target, as if there were any doubt, is yet greater control for Whitehall's macro-planners.
This is a clever Bill - so no wonder ministers have been loath to make concessions in the parliamentary debate. When the White Paper Learning to Succeed talks of a Learning and Skills Council "to drive forward improvements in standards and bring greater coherence and responsiveness" to post-16 education and training, it is really speaking about how the Government will use the new body to drive forward its own plans.
Look at the provisions relating to planning (clauses 15 and 16). The new council must publish an annual plan containing proposals as to how "any objectives should be achieved in the year in conformity with directions of the Secretary of State", or with grant conditions imposed by him.
In shorthand, the Secretary of State directs and the Learning and Skills Council implements. Similarly, the council must adopt and keep under review a quality improvement strategy which toes the Secretary of State's line - or, in the language of the parliamentary draftsman, achieves "any objectives contained in directions of the Secretary of State".
Whitehall planning then cascades down to the next level of the 47 new local learning and skills councils. The only specific duty for each local council is to prepare annual plans "in conformity" with "guidance" from the Learning and Skills Council which, as we have seen, must plan "in conformity" with the Secretary of State's directions.
But what until now appears to be a straightforward exercise in top-down diktat becomes, almost imperceptibly, an exercise in bottom-up responsiveness. In drawing up their plans, the local councils must consult with a spider's web of regional development agencies, local education authorities and learning partnerships.
It is too early to predict whether this will result in an Orwellian blueprint imposed from above or, as is hoped, an interactive and neds-driven planning process in which providers and local communities have an important voice.
But two things are certain. First, the Bill will compel every college governing body to carry out an urgent review of its strategic plans, needs analysis and local partnerships, and, second, it will promote mergers, federations, confederations and other collaborative arrangements across a range of provision, including secondary education.
A similar pattern of Whitehall control appears throughout the Bill. In relation to educational standards, if inspection reports indicate unacceptable levels of performance, the council and, in the final resort, the Secretary of State, can intervene directly. The council will also be able to reward top performing colleges with accredited and Beacon status. What better way to concentrate the mind on performance indicators and quality issues. Once again, in footballing terms, the DFEE's ball lands straight in the net.
At the Learning and Skills Council, it is Whitehall that will determine the new funding methodology and the council that will implement it in accordance with "target" duties and powers which are much broader, and more explicitly dependent on Treasury requirements, than those of the FEFC.
The duties to secure the provision of post-16 education and training are said to be "target" ones because they would in practice be extremely difficult to litigate. In the competitive new market created by the Bill, college governing bodies will need to ensure that financial budgets are sufficiently aggressive to guarantee at least a strong financial category "B" rating, and this will mean looking very carefully at overheads.
The Bill greatly enhances Whitehall's powers of control, in stark contrast with the Government's treatment of the "new" universities (the former polytechnics) and higher education colleges.
However, the whistle needs to be blown on one little flick of the heel by the Government which might pass for petulance. Many will regard the proposed restriction on the use of college companies (Schedule 8) as ministerial overreaction to criticism of a few colleges in recent Public Accounts Committee and National Audit Office reports, and a measure which could more appropriately be covered by financial regulation. Not a sending off offence, but certainly a case for showing a yellow card.
John T Hall is head of education law at Eversheds, solicitors, London EC4