Scope of further and higher education
in UK law
26. In relation to England and Wales, section 90
of the Further and Higher Education Act 1992 defines "higher
education" by reference to the Education Reform Act 1988,
which in Schedule 6 provides a list of higher education courses
in general terms (essentially university courses and some other
vocational courses, such as for teacher training or professional
examinations). Section 90 of the 1992 Act defines "further
education" by reference to section 2 of the Education Act
1996, which defines the term as education "suitable to
the requirements of persons who are over compulsory school age",
but which is not secondary education or higher education. Accordingly,
it can be seen that the definitions are complementary and can
be taken together to form a picture of education provided to persons
over school age. In relation to Scotland, sections 1 and 38 of
the Further and Higher Education (Scotland) Act 1992 define "further
education" and "higher education" in similar terms.
27. Since "further education" and "higher
education" are terms of UK law, they are not referred to
in the ECJ case law on vocational training. Indeed, the emphasis
placed by the ECJ on assessing the nature of the relevant courses
suggests that a formal distinction such as this designated by
national law should be disregarded. This is understandable, since
other Member States may not draw the same distinction in their
national education systems. AG Slynn appeared to recognise this
in Commission v. Belgium (see Annex).
28. Further and higher education in the UK covers
a broad range of courses and, as indicated in the Department's
memoranda of 27th May, it is very difficult to specify
which courses fall within the scope of vocational training described
above, and which fall outside it.
29. At one end of the spectrum, there are the courses
which provide a qualification which is recognised for admission
to a profession or trade, without a requirement for any further
qualification. An example of this is a course in medicine which
provides the qualification necessary to practise as a doctor.
Then there are those courses (even though they may also include
an element of general education) which are a condition for qualifying
for a particular trade or profession, but are not on their own
sufficient for admission. An example of this is a degree in law,
which allows a person to undertake further training which must
be successfully completed before he or she may then become a trainee
solicitor or pupil barrister. All these courses clearly fall within
the scope of vocational training.
30. At the opposite end of the spectrum are courses
which are merely "intended for persons wishing to improve
their general knowledge". These generally fall outside
the scope of vocational training. This category may include university
studies in literature, medieval history or classics, such as referred
to by AG Slynn (see Annex), but to determine that would require
an assessment of each individual course to confirm that is the
case, and it could not be ruled out entirely that such courses
constitute vocational training.
31. Between these two extremes lie a large number
of further and higher education courses where it is very difficult
to specify whether a given course falls within or outside
the scope of vocational training. Each individual course requires
an assessment of its overall relevance to a particular profession,
trade or employment in order to determine if it constitutes vocational
training. For example, a three-year university degree in chemistry
or biology may or may not meet the criteria set out by the ECJ,
depending on the circumstances. The same can be said of a three-month
course offering a diploma in computer studies or cookery skills,
which could be intended to provide occupational skills, or skills
of use to a person in their leisure time, or a combination of
both. Nevertheless, as the ECJ indicated in Blaizot,
courses of further and higher education falling between the two
ends of the spectrum described above will, in general, constitute
vocational training.
32. As the Department indicated in its memoranda
of 27th May, other factors also make it difficult to make a useful
estimate of the proportion of courses which fall within and which
fall outside the scope of vocational training. These include the
number of courses offered by each institution at a given time,
which may vary, and the fact that the Department does not have
access to figures reflecting privately funded courses.
33. For the reasons given above, the Department is
therefore of the view that the majority of further and higher
education courses fall within the scope of vocational training,
reflecting the views expressed by the ECJ in Blaizot.
30th May 2003
ANNEX: OPINION OF ADVOCATE GENERAL SLYNN IN C- 293/85
COMMISSION V. BELGIUM [1988] ECR 305
34. AG Slynn adopted his reasoning in the Commission
v. Belgium case for the purposes of his opinion in the
Blaizot case. In Commission v. Belgium
the full Court did not express its views on the merits, as it
found the case to be inadmissible by reason of the insufficient
time the Commission had allowed Belgium to respond to its formal
opinion.
35. In commenting on the general criteria set out
by the ECJ in Gravier, AG Slynn explained:
"...it seems to me that it is sufficient
if a university degree is an integral and necessary part of a
qualification or if it provides exemptions from proving proficiency
in subjects which would otherwise be tested by a professional
body and even if it covers some subjects not so required."
36. He emphasised that merely because many employers
advertise specifically for graduates, that does not mean that
all university studies fall within the scope of vocational training.
He explained that there must be a direct link between the training
and the profession or trade:
"It is not sufficient that, because for most
jobs it is necessary to read or write or to do basic arithmetic
(if that still exists as part of mathematics teaching), training
in these constitutes vocational training. There must be a sufficiently
direct link between the training and the profession or trade.
Thus, courses which essentially are to increase knowledge or cultural
awareness or 'develop the mind' would ordinarily be excluded.
A course in literature, medieval history or classics may be invaluable
for the successful career of the diplomat, the politician or the
clergyman but they do not have a sufficiently direct link with
the skills needed in those particular professions."
37. AG Slynn noted that such courses could not be
said to constitute vocational training for teachers, unless the
courses were specifically designed to prepare for a teaching qualification
or provide the skills and training for teaching such a subject.
He also acknowledged that this approach would lead to difficult
cases, which would require an assessment of "the overall
relevance of the course to a particular profession, trade or employment".
38. He also appeared to recognise that formal distinctions
in national law should be disregarded:
"Both [Article 128 of the EEC Treaty as it
then was and the ECJ judgment in Gravier] seem
to me to direct attention to the nature of the course of training
or instruction rather than to the kind of institution involved.
I do not consider that either the Article or the judgment imply
a priori that a university is an institution apart which must
necessarily be excluded from the principle upheld in Gravier.
For the medieval schoolmen a university may have been sui generis.
In the late twentieth century that is not to be assumed so far
as teaching as opposed to research is concerned, not least since
other institutions, such as United Kingdom polytechnics, now frequently
teach courses in some subjects at a comparable level to that attained
in the universities. It would be quite wrong if, for example,
a degree or a diploma in architecture from a university or a specialist
school qualified for practice, that one should count as vocational
training and not the other. Moreover it is possible that what
in some Member States is included only in university curricula
is in other Member States taught in other institutions of higher
education which are not strictly categorized as universities.
To distinguish by institutions rather than by the nature of the
courses therefore seems to me to be unacceptable."
