Will Jo Johnson be forced to drop his plan to set different fee caps for universities according to their scores in the planned teaching excellence framework? One vice-chancellor believes that will be a key development in the higher education White Paper, expected to accompany the Queen’s Speech on 18 May.

Meanwhile, others also indicate that the White Paper will reflect serious thinking going on in government on “institutional failure” given that creating the conditions for “market exit” is seen by Mr Johnson, the universities and science minister, as a vital element of true competition. The government is discussing whether to require a minimum threshold on the level of financial reserves all institutions must hold, to fund their students being taught elsewhere in the event of a failure, some suggest.

The Department for Business, Innovation and Skills is “due to publish an HE White Paper alongside the Queen’s Speech and introduce the planned…bill shortly afterwards”, said a confidential briefing on BIS’ plans helpfully, but accidentally, displayed by a government official leaving No 10 last month and caught on camera by a Downing Street photographer.

We know from BIS’ Green Paper, published in November, that its plans centre on the creation of the TEF, changes to sector regulation via the creation of a new Office for Students, meeting David Cameron’s goal to double the proportion of disadvantaged young people entering higher education between 2009 and 2020, and plans to ease “market entry” for private providers and exit for those providers or courses that fail to compete.

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The document photographed outside No 10, seemingly a Cabinet Office briefing, revealed that BIS is arguing that extra student recruitment needed to meet the prime minister’s access goal cannot be achieved “from the established sector alone”, but “could come from growth by alternative providers”.

The “purdah” period ahead of the European Union referendum begins on 27 May – leaving a three-week window to get a bill moving in Parliament before then, or alternatively a wait until after the referendum on 23 June.

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Pam Tatlow, chief executive of MillionPlus, said: “Whatever the scepticism of some Cabinet Office officials about the probity and effectiveness of BIS ministers’ plans for further higher education reform, there is a clear government intention to legislate.” She added that it was now a question of who in government “wins the race to get their priorities in the three-week slot”.

Emran Mian, director of the Social Market Foundation thinktank, said: “If there is going to be legislation, then a proper failure regime should be part of it…The government is unlikely to seek headlines by what it sets out on this front but, in my view, below the line it’s the most significant development likely in the White Paper and bill.”

The TEF does not require legislation if it were to operate at institutional level, rather than by course.

But some believe that Mr Johnson will be forced to drop his plan to link the TEF with fees. The plan envisaged up to four different fee caps linked to TEF levels – where a rise in line with inflation would be the maximum allowed.

Critics saw the plan as paving the way to truly variable, higher fees. But the TEF-multiple fee cap plan was firmly opposed by influential bodies including the University of Cambridge, Universities UK, the Russell Group and the National Union of Students.

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Aldwyn Cooper, vice-chancellor of Regent’s University London, said of the White Paper: “I expect there to be a TEF, but simplified and with no link to funding. The question is whether it will be a mandatory requirement to participate.”

He added: “Nobody thinks that the relatively trivial potential uplift in fees is going to be worth a damn.”

However, others indicate that previous noises from the government have suggested that some form of link was still possible, but perhaps linking the ability to raise fees in line with inflation to a single fixed point in the TEF, rather than multiple tiers.

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On quality assurance, the Higher Education Funding Council for England’s move to package out work in six separate tenders is said to concern Mr Johnson, whose TEF plans are linked to a reliable quality system.

Professor Cooper said of the White Paper: “I think that Hefce’s attempts to annex quality assurance will be quashed and the Quality Assurance Agency as an independent reviewer of quality will be retained and strengthened – possibly alongside what TEF comes to be.”

On opening the sector to new private providers, Professor Cooper said that he would be “surprised” if Green Paper proposals to remove any threshold on minimum student numbers required to gain university title (the current level is 1,000) make it to the White Paper.

“You’ll end up with an institution that specialises in Latvian basket-weaving and with 50 students getting university title,” he added. “It would be patently, and internationally, absurd.”

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But he said that there could be moves to grant students at “proven” private providers, meaning those with degree-awarding powers and/or university title, access to £9,000 fee loans (the cap is currently £6,000 at private providers).

john.morgan@tesglobal.com