Not such a private function

Geraldine Swanton

Last week I was involved in a discussion on Twitter about the practical consequences of the provisions of the latest Education Act which affect FE colleges. For anyone who has somehow managed to avoid the copious legal comment on these (if so, how is probably an interesting story in its own right!), here’s a very brief summary: the ONS/NAO decided to reclassify colleges as being in the public sector and to avoid this, the government introduced numerous provisions in the Act designed to give FE colleges the necessary freedom to enable the ONS/NAO to reverse that decision.

The debate on Twitter centred on the following question: if colleges are not in the public sector, were they still caught by constraints such as FOIA, public procurement rules or the single equality duty.

Here are the relevant sources of some of the main obligations, and the tests applied to see if colleges are still caught:

  • FOIA applies to the public authorities listed in Schedule 1. Further education corporations are at paragraph 53 of Schedule 1 and so still subject to the freedom of information regime. FOIA is currently undergoing post-legislative scrutiny which may lead to some amendments, but there is no indication at all that those would include exempting FE colleges.

  • Similarly, the Equality Act 2010 specifies the public authorities who are subject to the single equality duty and further education corporations are listed, this time in Part 2 of Schedule 19.

  • For the purposes of public procurement, contracting authorities include bodies which were established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and are financed, for the most part, by the state, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies. Colleges are likely still to meet these criteria.

  • Judicial review may still be available against colleges depending on the nature of the decision under challenge. Where the challenge relates to the exercise of colleges’ statutory powers, or where features of the decision under challenge impose “a public character or stamp on the act”, judicial review may still be appropriate.

  • Similarly, the Human Rights Act applies to bodies some of whose functions are of a public nature. To the extent that functions satisfy that requirement, colleges remain under a duty to act in a way that is compatible with the European Convention on Human Rights.

Given that the classification of colleges as private sector was essentially in response to accounting issues, it should probably come as no great surprise to anyone that the many public law obligations on colleges remain intact.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
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E: smita.jamdar@sghmartineau.com
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From → General Interest

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