Odds are good for HE legislation, but don’t count your chickens

When students of politics cover the passage of new legislation, they are taught about the parliamentary stages, from first reading to third reading. These matter, as demonstrated by the acrimonious debates over the Blair government’s legislation on £3,000 tuition fees in 2003-04. But focusing on these alone is akin to treating a new law as if it is the product of an immaculate conception.

This is why we should be cautious in assuming that the Green Paper promised for the autumn by universities and science minister Jo Johnson will lead neatly and swiftly to legislation. Before being presented to Parliament, a new law has to be dreamed up, written and agreed across Whitehall, and the failure of the proposals in the 2011 higher education White Paper to reach Parliament is illustrative of how fraught that process can be.

The impassable obstacle in that case was not difficult MPs or peers, but opposition within the coalition. Leading Liberal Democrats wanted higher education to disappear as an issue, in the hope that people would forget their broken pledge not to raise tuition fees. Deregulatory Conservatives were not keen on legislating either. Even the Department for Business, Innovation and Skills, which had published the White Paper, said that it had more urgent priorities – such as selling off Royal Mail. One overlooked downside of having higher education in BIS is that it takes second string to matters that have little to do with education.

According to a new book by Anthony Seldon, the incoming vice-chancellor of the University of Buckingham, David Cameron once told an unhappy adviser: “If you wanted me to be radical you should have won me a general election victory.” Now he has one, and the world looks different. Johnson is as keen to leave his mark on the sector as his predecessor David Willetts was, and it seems to many that he has a free hand to do so.

Hence, there is a sense of inevitability felt by many people about new higher education legislation. But while the promised Green Paper was originally supposed to focus on the proposed new teaching excellence framework, it is becoming more expansive with each passing week. Sajid Javid, secretary of state for business, innovation and skills, has said that it could include measures to tackle lad culture on campus, and Johnson has promised all sorts of other new things, such as a formal process by which failing universities could “exit” the sector. The paper is becoming deeper green with every addition. The proposed legislation will soon become known in Whitehall as a “Christmas tree bill”, which means that you can hang almost anything you want on it. That will make it more impressive, but also put it at greater risk of toppling over.

At the very least, all of its proposals will need the support of the Treasury, the Cabinet Office and No 10 before MPs can debate them. Those pesky Lib Dems may have disappeared but there will still be Tories who ask whether new legislation is really necessary, and others who, while supportive, will regard higher education as less pressing than other reforms. There may even be some in power who ask whether a potential row over higher education could unhelpfully shift the political spotlight from other big stories from which the Tories profit, such as the Labour Party’s travails.

Remember, for a brief moment in 2010 new higher education legislation also seemed inevitable. But the White Paper that had been promised for that year did not appear until June 2011, and the government did not respond to the consultation on it until June 2012, by which time the idea of legislating had died. Various attempts at resuscitation failed. The sector muddled on under the current flawed legislative framework and the proposed remedies gathered dust for three years until Johnson blew off the cobwebs.

I do think that the odds on legislation happening this time are better than in 2010. There are more loose ends that need tying up and there is a majority government with a clear agenda. But I repeat that no one should think it is going to be easy, and if Johnson pulls it off, it will be a massive political achievement in his first ministerial appointment.

Even if a bill reaches Parliament, its passage will be messy because law-making always is. That is how it should be: good legislation is the product of healthy debate, and the legislature is there to iron out the faults in bills before they become law. Still, some in the higher education sector may be inclined to agree with the Illinois politician who reputedly once remarked that “the making of laws is like the making of sausages – the less you know about the process the more you respect the result”.

Nick Hillman is the director of the Higher Education Policy Institute.