Holly Stout, instructed by Michael Brotherton of Stone King, represented Al Huda Girls’ School in the first ever successful appeal against a decision by the Secretary of State for Education to remove a school from the Register of Independent Schools. The Tribunal found there was a reasonable prospect of the School meeting the requisite standards within a reasonable period and observed that the Secretary of State had given insufficient consideration to the difficulties that closing the school would present for the 80+ Muslim girls who attend it. Having decided to allow the appeal in any event, the Tribunal found it unnecessary to adjudicate on whether or not the Secretary of State had breached the equality duty in s 149 of the Equality Act 2010, but indicated that in its view this should have been considered from the outset and that the Secretary of State’s retrospective consideration of the duty was not impressive.
Until recently it was a frequent lament of the élitist middle classes that the term “university” was being promiscuously applied to educational institutions less revered than some of our traditional universities, ancient and modern. In deference to these sentiments, section 39(1) of the Teaching and Higher Education Act 1998 has (since 1 February 1999) provided that a further or higher education institution in England or Wales “shall not, when making available (or offering to make available) educational services, do so under a name which includes the word “university” unless the inclusion of that word in that name is— (a) authorised by or by virtue of any Act or Royal Charter, or (b) approved by the Privy Council for the purposes of this section.”
Now, however, the Department of Business, Innovation and Skills (BIS) – not the Department for Education – has published its 63 page response to the consultation exercise on the higher education White Paper, Students at the Heart of the System (published in June 2011). BIS announced on 11 June 2012 that an institution with as few as 1,000 students can, with immediate effect, now become a university, provided at least 750 of them are studying for a degree. Previously, an institution needed to have at least 4,000 students. The new smaller size qualification applies to England only; the matter is one for the devolved administrations outside England. The professed aim is to “stimulate competition” and “widen access to university title [sic] for smaller, high quality providers” (paragraph 1.5 of the response document). As far as can be discerned, the mechanism is an alteration to the criteria applied by the Privy Council when deciding whether to grant approval under section 39(1) of the 1998 Act.
The broader aim of establishing a “new fit for purpose regulatory framework for the higher education sector” (section 3 of the response document) is not yet the subject of specific legislative proposals because the as yet unknown effects of recent changes in funding arrangements mean that “it cannot be clear what form of regulatory framework will be appropriate” (paragraph 1.7). An overhaul of the regulatory system is likely but will have to await further detailed consultation and discussion.