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A CHANGING LANDSCAPE FOR TERTIARY EDUCATION AND RESEARCH IN
SCOTLAND
A Consultation Paper on the Merger of The Scottish Further
Education Funding Council
and The Scottish Higher Education Funding Council
CONSULTATION DRAFT
Tertiary Education (Funding etc.) (Scotland) Bill
An Act of the Scottish Parliament to make provision about the provision and
funding of tertiary education; and for connected purposes.
Part 1
Provision of tertiary education etc.
1 Duty to secure provision of tertiary education and research
(1) It is the duty of the Scottish Ministers to secure the adequate and
efficient—
(a) provision of tertiary education; and
(b) undertaking of research among the institutions which provide tertiary
education.
(2) The Scottish Ministers may do anything that is necessary or expedient
for the purposes of or in connection with the exercise of their function under
subsection (1).
2 Tertiary education
(1) For the purposes of this Act, "tertiary education" means a programme
of learning—
(a) to which subsection (2) applies; and
(b) which—
(i) is provided for persons over school age (within the meaning of
the 1980 Act); and
(ii) is not school education (within the meaning of that Act).
(2) This subsection applies to any programme of learning which—
(a) prepares a person for a vocational qualification;
(b) prepares a person for—
(i) a qualification awarded by the Scottish Qualifications Authority;
or
(ii) a General Certificate of Education qualification of England
and Wales or Northern Ireland;
(c) is designed to assist persons whose first language is not English
to achieve any level of competence in English language;
(d) is a course at a higher level in preparation for a higher diploma
or certificate;
(e) is a first degree course;
(f) is a course for the education and training of teachers;
(g) is a course of post-graduate studies (including a higher degree
course);
(h) is a course at a higher level in preparation for a qualification
from a professional body;
(i) is a course at a higher level not referred to in any of paragraphs
(d) to (h); or
(j) provides instruction for persons who are participating in a programme
of learning referred to in any of paragraphs (a) to (i) and who have a learning
difficulty;
(k) is designed predominantly to prepare a person for access to or
participation in any programme of learning referred to in any of paragraphs
(a) to (i);
(3) For the purposes of subsection (2)(d), (h) and (i), a course is to
be regarded as providing education at a higher level if its standard is higher
than the standard of courses in preparation for examinations for—
(a) the Scottish Qualifications Authority Higher; or
(b) the Scottish Vocational Qualification Level 3.
(4) For the purposes of subsection (2)(g), post-graduate studies includes
a course following the award of a higher diploma or certificate.
(5) The Scottish Ministers may by order modify subsections (2) to (4).
(6) Before making an order under subsection (5), the Scottish Ministers
must consult the Council.
3 Persons with learning difficulties
(1) In exercising their duty under section 1(1), the Scottish Ministers
are to have regard to the requirements of persons over school age (within
the meaning of the 1980 Act) who have learning difficulties.
(2) For the purposes of subsection (1)—
(a) a person has a learning difficulty if the person—
(i) has significantly greater difficulty in learning than the majority
of persons over school age (within the meaning of the 1980 Act); or
(ii) suffers from a disability, impairment or condition which prevents
or hinders the person from making use of educational facilities generally
provided by specified tertiary education providers; but
(b) a person is not to be taken as having a learning difficulty solely
because the language (or form of the language) in which the person is, or
will be, taught is different to a language (or form of a language) which
has at any time been spoken in the person’s home.
4 Funding of the Council
(1) The Scottish Ministers may make grants to the Council of such amounts
as they may determine.
(2) A grant made under subsection (1) is subject to such terms and conditions
as the Scottish Ministers consider it appropriate to impose.
(3) Terms and conditions imposed under subsection (2) may, in particular—
(a) relate to—
(i) the repayment (in whole or in part) of a grant in such circumstances
as they may specify;
(ii) the interest payable in respect of any period during which a
sum due to the Scottish Ministers is outstanding;
(b) include the conditions referred to in subsections (4) and (5).
(4) The condition is that, before the Council makes a payment to a specified
tertiary education provider under subsection (1) of section 12 of such amount
or description as the Scottish Ministers may in the condition specify, the
provider is to comply with such matters concerning specified tertiary education
providers or any class of them as the Scottish Ministers may so specify.
(5) The condition is that—
(a) when making a payment to a specified tertiary education provider
under subsection (1) of section 12; and
(b) in such cases as the Scottish Ministers may in the condition specify,
the Council is (under subsection (2) of that section) to impose on the provider
a condition making the requirement referred to in subsection (6).
(6) The requirement is that the provider to whom the payment is being
made is to secure that the fees payable to the provider—
(a) by the persons to whom this paragraph applies; and
(b) in connection with their attending the programmes of learning to
which this paragraph applies,
are equal to the maximum fees which may, in relation to those persons attending
those programmes, be determined by the Scottish Ministers under section 73D(2)
of the 1980 Act.
(7) Paragraph (a) of subsection (6) applies to such class of persons
as the Scottish Ministers may by order specify.
(8) Paragraph (b) of that subsection applies to programmes of learning
of such description as the Scottish Ministers may by order specify.
(9) A condition imposed on a specified tertiary education provider by
virtue of subsection (5) is to make provision that is to apply if the provider
fails to comply with the requirement referred to in subsection (6).
(10) A condition imposed on a specified tertiary education provider by
virtue of subsection (5) does not apply in relation to any fees which are
payable, in accordance with regulations under section 1 (fees at universities
and further education establishments) of the Education (Fees and Awards) Act
1983 (c.40), by students other than those falling within any class of persons
prescribed by such regulations for the purposes of subsection (1) or (2) of
that section.
(11) The Scottish Ministers may not specify descriptions of programmes
under subsection (8) in such a way as to discriminate—
(a) in relation to programmes for the training of persons preparing
to be teachers which are open only to persons holding a degree, between
different programmes on the basis of the subject in which such training
is given; or
(b) in relation to other programmes, between programmes at the same
or a comparable level on the basis of the particular areas of study or the
research to which they relate.
(12) Terms and conditions imposed under subsection (2) may not, except
in so far as provided for in subsection (4), relate to the provision of financial
support by the Council in respect of activities carried on by any particular
specified tertiary education provider or providers.
(13) Terms and conditions imposed under subsection (2) may not—
(a) except in so far as provided for in subsections (5) to (8), be
framed by reference to particular programmes of learning or research (including
the contents of such programmes or the manner in which they are taught,
supervised or assessed); or
(b) be framed by reference to the criteria for—
(i) the selection or appointment of academic staff; or
(ii) the admission of students.
5 Funding of the Council: additional grants
(1) In addition to any grants made under section 4, the Scottish Ministers
may make further grants to the Council of such amounts as they may determine.
(2) In making a grant under subsection (1), the Scottish Ministers must
specify the purposes for which the grant is made.
(3) A grant made under subsection (1) is subject to such terms and conditions
as the Scottish Ministers consider it appropriate to impose.
(4) Terms and conditions imposed under subsection (3) may, in particular—
(a) relate to—
(i) the repayment (in whole or in part) of a grant in such circumstances
as they may specify;
(ii) the interest payable in respect of any period during which a
sum due to the Scottish Ministers is outstanding;
(b) include the condition referred to in subsection (4) of section
4.
(5) But—
(a) the purposes specified under subsection (2);
(b) terms and conditions imposed under subsection (3),
may not be framed by reference to a particular specified tertiary education
provider.
6 Directions to the Council
(1) The Scottish Ministers may give the Council directions as to the
exercise of its functions except those under section 16.
(2) Directions under this section may—
(a) be of a general or specific character; and
(b) make different provision for different cases or classes of case,
but may not relate to a particular specified tertiary education provider.
(3) The Council must comply with directions given to it under this section.
7 Directions where financial mismanagement
(1) The Scottish Ministers are, if it appears to them that the financial
affairs of a specified tertiary education provider have been or are being
mismanaged, to give the Council such directions about the provision of financial
support for the activities carried on by the provider as they consider are
necessary or expedient by reason of the mismanagement.
(2) The Council must comply with directions given to it under this section.
8 Delegation of functions under section 1(1)
(1) The Scottish Ministers may, to such extent and subject to such conditions
as they may determine, delegate to the Council the exercise of their functions
under section 1(1).
(2) The Council is, in its own right—
(a) entitled to enforce any rights acquired; and
(b) liable in respect of any liabilities incurred (including liability
in damages for wrongful or negligent acts or omissions),
in its exercise of those functions; and any proceedings for enforcement
of those rights or liabilities are to be brought by or against the Council
in its own name.
(3) Delegation of functions under subsection (1) does not (subject to
subsection (2)) affect the responsibility of the Scottish Ministers for or
in relation to the exercise of their functions.
Part 2
Funding of tertiary education etc.
Scottish Tertiary Education Funding Council
9 Scottish Tertiary Education Funding Council
(1) There is established a body to be known as the Scottish Tertiary
Education Funding Council.
(2) Schedule 1 makes provision about the constitution of the Council
and about certain administrative and other matters with respect to the Council.
10 Dissolution of other funding bodies
The following bodies are dissolved on such date as the Scottish Ministers
may by order appoint—
(a) the Scottish Further Education Funding Council (established under
section 7(1) of the 1992 Act);
(b) the Scottish Higher Education Funding Council (established by section
37(1) of that Act); and
(c) the body created by virtue of subsection (2)(c) of section 59A
(joint exercise of certain functions) of that Act.
11 Administration of funds
(1) The Council is, for the purpose of providing financial support for
the activities specified in subsection (2), responsible for administering—
(a) all grants made to it under section 4 and 5; and
(b) any other funds made available to it for that purpose.
(2) The activities are—
(a) the provision of tertiary education by specified tertiary education
providers;
(b) the undertaking of research at specified tertiary education providers;
(c) the—
(i) provision of such facilities; and
(ii) the carrying on of such other activities,
by a specified tertiary education provider or any other person as are
necessary or desirable for the purposes of or in connection with an activity
specified in paragraph (a) or (b);
(d) the provision of services by a specified tertiary education provider
or any other person for the purposes of or in connection with an activity
specified in paragraph (a) or (b).
12 Funding of specified tertiary education providers
(1) The Council may make grants, loans or other payments—
(a) to the governing body of any specified tertiary education provider
in respect of expenditure incurred or to be incurred by the provider for
the purposes of any of the activities specified in subsection (2)(a) and
(b) of section 11;
(b) to—
(i) the governing body of any specified tertiary education provider;
or
(ii) any other person,
in respect of expenditure incurred or to be incurred by the provider or
the person for the purposes of any of the activities specified in subsection
(2)(c) and (d) of that section.
(2) A payment made under subsection (1) may (in addition to any condition
which is imposed by virtue of subsection (5) of section 4) be subject to such
terms and conditions as the Council considers it appropriate to impose.
(3) Terms and conditions imposed under subsection (2) may, in particular,
relate to—
(a) the repayment (in whole or in part) of a payment in such circumstances
as they may specify;
(b) the interest payable in respect of any period during which a sum
due to the Council is outstanding.
(4) But terms and conditions imposed under subsection (1) may not relate
to the application by the provider of any sums which were not derived from
the Scottish Ministers.
(5) Before imposing terms and conditions under subsection (1), the Council
is to consult—
(a) the governing body of the specified tertiary education provider
to which the payment is to be made; and
(b) as it considers appropriate, such bodies as appear to it to represent
the interests of specified tertiary education providers or any class of
them.
(6) In making payments under subsection (1), the Council is to have regard
to the desirability of—
(a) encouraging specified tertiary education providers to maintain
or develop funding from other sources;
(b) preserving any distinctive characteristics of particular specified
tertiary education providers.
13 Funding: requirement to hold meeting
(1) The Council is (for the purposes of subsection (2)) entitled to require
the holding of a special meeting of the governing body of a specified tertiary
education provider.
(2) A member of the Council or its chief executive is entitled to address
the meeting on any matters relating to the financial support which the provider
receives, or might receive, from the Council.
14 Efficiency studies
(1) The Council may secure the promotion or carrying out of studies designed
to improve economy, efficiency and effectiveness in the management or operations
of any specified tertiary education provider.
(2) The governing body of a specified tertiary education provider must—
(a) provide any person promoting or carrying out such studies by virtue
of subsection (1) with such information; and
(b) make available to the person for inspection such accounts and other
documents,
as the person may reasonably require for the purposes of the studies.
15 Quality of tertiary education
(1) The Council is to secure that provision is made for—
(a) assessing; and
(b) enhancing,
the quality of tertiary education provided by specified tertiary education
providers.
(2) In exercising the function under subsection (1), the Council must,
as it considers appropriate, consult such persons as appear to it to represent
the interests of specified tertiary education providers or any class of them.
16 Advisory functions
(1) The Council must provide the Scottish Ministers with such information,
advice and assistance relating to the—
(a) provision and funding of tertiary education; and
(b) undertaking of research at institutions which provide tertiary
education,
as the Scottish Ministers may reasonably require.
(2) The Council may provide the Scottish Ministers with other information
and advice relating to those matters whenever it considers it appropriate
to do so.
(3) Any information, advice or assistance under subsections (1) and (2)
is to be provided in such manner as the Scottish Ministers may determine.
17 Skills needs
(1) In exercising its functions, the Council is to have regard to skills
needs in Scotland.
(2) For the purposes of subsection (1), "skills needs" includes any requirement
or desirability for skills or knowledge which, following consultation with
the Scottish Ministers (in addition to any consultation with persons referred
to in section 18(3)), appears to the Council—
(a) to exist for the time being or be likely to exist in the future;
and
(b) to be capable of being addressed (wholly or partly) by the provision
of tertiary education.
18 Consultation and collaboration
(1) The Council must, in the exercise of its functions—
(a) as it considers appropriate, consult the persons referred to in
subsection (3); and
(b) so far as is consistent with the proper exercise of its functions,
seek to secure the collaboration of those persons.
(2) The persons referred to in subsection (3) must provide the Council
with such information as it may reasonably require for the purposes of or
in connection with the exercise of any of its functions.
(3) The persons are—
(a) any local authority;
(b) the governing body of any specified tertiary education provider;
(c) the governing body of any other institution which provides tertiary
education;
(d) the Scottish Qualifications Authority;
(e) Scottish Enterprise;
(f) Highlands and Islands Enterprise;
(g) any local enterprise company;
(h) Scottish University for Industry (that is, the organisation comprised
of Scottish UFI Limited and Scottish UFI Trust);
(i) Communities Scotland (that is, the agency of the Scottish Executive
known by that name); and
(j) such other persons as the Scottish Ministers may by order specify.
(4) In subsection (3)(g), "local enterprise company" means a person who
is responsible, by virtue of an agreement made under of section 19 (delegation
of certain functions and powers) of the Enterprise and New Towns (Scotland)
Act 1990 (c.35), for the discharge of any functions of Scottish Enterprise
or Highlands and Islands Enterprise.
19 Equal opportunities
(1) The Council must exercise its functions in a manner which encourages
equal opportunities and in particular the observance of the equal opportunity
requirements.
(2) In subsection (1) "equal opportunities" and "equal opportunity requirements"
have the same meanings as in Section L2 (equal opportunities) of Part II of
Schedule 5 to the Scotland Act 1998 (c.46).
20 General powers
(1) The Council may (subject to subsections (2) to (9)) do anything that
is necessary or expedient for the purpose of or in connection with the discharge
of its functions, including in particular—
(a) acquiring and disposing of land and other property;
(b) entering into contracts;
(c) investing sums not immediately required for the purpose of the
discharge of its functions; and
(d) accepting gifts of money, land or other property.
(2) The Council may not borrow money.
(3) The Council is not to give any guarantee or indemnity or create any
trust or security over or in respect of any property to which this subsection
applies.
(4) The Council is not to dispose of any property to which this subsection
applies without the written consent of the Scottish Ministers.
(5) Consent, for the purposes of subsection (4), may be given—
(a) in respect of any case or class of case; and
(b) subject to such conditions as the Scottish Ministers may determine.
(6) Consent, for the purposes of subsection (4), is not required for
a disposal of land which is or forms part of property to which that subsection
applies if the disposal is in consequence of the compulsory acquisition (under
any enactment) of the land.
(7) But the Council is to inform the Scottish Ministers of the compulsory
acquisition (under any enactment) of land which is or forms part of property
to which subsection (4) applies.
(8) Where property to which subsection (4) applies is disposed of, the
Council is (after deduction of such expenses as appear to the Scottish Ministers
to have been reasonably incurred in the disposal) to pay to the Scottish Ministers
such portion of the proceeds or value of the consideration for the disposal
as the Scottish Ministers may, after consultation with the Council, determine.
(9) Subsections (3) and (4) apply to any property of the Council which
has been acquired, improved or maintained wholly or partly, directly or indirectly
out of—
(a) funds provided by the Scottish Ministers under section 4 or 5;
or
(b) the proceeds of, or any consideration for, the disposal of any
property so acquired, improved or maintained.
Specified tertiary education providers
21 Specified tertiary education providers
Schedule 2 specifies, for the purposes of this Act, institutions which provide
tertiary education.
22 Specified tertiary education providers: further provision
(1) The Scottish Ministers may by order modify schedule 2.
(2) The Scottish Ministers may by regulations specify conditions which
must be met by the governing body of an institution before a reference to
the institution may be added to schedule 2 under subsection (1).
(3) Any such conditions must include conditions—
(a) relating to the governance and management of the institution;
(b) requiring the appointment of an officer who is responsible for—
(i) signing the accounts of the expenditure and receipts of the institution;
(ii) ensuring the propriety and regularity of the finances of the
institution; and
(iii) ensuring that the resources of the institution are used economically,
efficiently and effectively;
(c) as to procedures for—
(i) assessing; and
(ii) enhancing,
the quality of the activities funded by financial support given to the
institution by the Council;
(d) as to procedures for considering and resolving any grievances held
by students of the institution.
(4) A reference to an institution may not be removed from schedule 2
under subsection (1) unless at least one of the conditions specified in any
regulations made under subsection (2) is not, or is no longer, being met in
relation to that institution.
(5) The Scottish Ministers may issue guidance in relation to the conditions
specified in any regulations made under subsection (2).
23 Duty to provide tertiary education
(1) The governing body of a specified tertiary education provider must
secure the efficient provision by the provider of tertiary education of a
suitable range.
(2) For the purposes of subsection (1), in determining what (in relation
to a particular tertiary education provider) is a suitable range of tertiary
education, regard is to be had to—
(a) the provision of tertiary education in the area in which the provider
is situated; and
(b) the needs of persons who are, and the likely needs of persons who
might wish to become, students of the provider.
24 Development plans
(1) The governing body of a specified tertiary education provider must,
by such time in each financial year as the Scottish Ministers may direct,
prepare a plan (a "development plan") and send it to the Council.
(2) A development plan is to—
(a) be prepared by reference to the academic year commencing in the
following financial year and the succeeding two academic years; and
(b) contain such information, and be in such form, as the Council may
determine.
25 Inspection of accounts
(1) The Auditor General for Scotland may, at any reasonable time, inspect
the accounts and accounting records of any specified tertiary education provider.
(2) But the function under subsection (1) is exercisable only in relation
to accounts and records which relate to a financial year in which expenditure
to which this subsection applies is incurred.
(3) Subsection (2) applies to expenditure which has been funded (in whole
or part) by payments made by the Council under section 12.
26 Merger evaluation
(1) The Scottish Ministers may require the Council to request the governing
body of a specified tertiary education provider to—
(a) evaluate (on such basis as is referred to in the request) the—
(i) feasibility of; and
(ii) advantages and disadvantages which might result from,
a merger of the provider with any other specified tertiary education provider
referred to in the request; and
(b) prepare a report on the evaluation and send it to the Council by
such time as is appointed by the Council.
(2) A report prepared under subsection (1) is to—
(a) be in such form (including in the form of a joint report prepared
by the providers to which it relates); and
(b) contain such additional information,
as the Council may determine.
(3) The governing body of a specified tertiary education provider must
comply with any reasonable request made to it by virtue of subsection (1).
27 Change of name by certain institutions
In section 3 (powers of the Scottish Ministers) of the 1992 Act, for subsection
(4) there is substituted—
"(4) The governing body (within the meaning of Part II of this Act)
of a college of further education may, with the consent of the Scottish
Ministers, change the name of the college or of the governing body.".
28 Information about recorded children
A specified tertiary education provider must provide a local authority with
such information or advice as the authority may reasonably require for the
purposes of the exercise by the authority of its functions under section 65B
(provision for recorded children) of the 1980 Act.
Part 3
General
29 Amendment of enactments
Schedule 3 amends enactments for the purposes of and in consequence of this
Act.
30 Ancillary provision
The Scottish Ministers may by order make such incidental, supplemental,
consequential, transitional, transitory or saving provision as they consider
necessary or expedient for the purposes of or in consequence of this Act.
31 Orders and regulations
(1) Any power of the Scottish Ministers to make orders or regulations
under this Act is exercisable by statutory instrument.
(2) Any such power includes power to make—
(a) such incidental, supplemental, consequential, transitional, transitory
or saving provision as the Scottish Ministers consider necessary or expedient;
and
(b) different provision for different purposes.
(3) A statutory instrument containing—
(a) an order under section 2(5), 4(7) or (8), 10, 18(3)(j), 22(1) or,
except where subsection (4) applies, section 30; or
(b) regulations under section 22(2),
is subject to annulment in pursuance of a resolution of the Parliament.
(4) A statutory instrument containing an order under section 30 which
amends an Act is not made unless a draft of the instrument has been laid before,
and approved by resolution of, the Parliament.
32 Interpretation
(1) In this Act—
"the 1980 Act" means the Education (Scotland) Act 1980 (c.44);
"the 1992 Act" means the Further and Higher Education (Scotland) Act 1992
(c.37);
"the Council" means the Scottish Tertiary Education Funding Council;
"local authority" means a council constituted under section 2 of the Local
Government etc. (Scotland) Act 1994 (c.39);
"the Parliament" means the Scottish Parliament;
"tertiary education" has the meaning given in section 2;
"specified tertiary education provider" means an institution specified
in schedule 2.
(2) In this Act, any reference to the governing body of an institution
means—
(a) in the case of an institution conducted by a body corporate, that
body;
(b) in the case of an institution not falling within paragraph (a),
the executive body which has responsibility for the management and administration
of its revenue and property and the conduct of its affairs;
(c) in the case of any other institution not falling within paragraph
(a) or (b) for which the Scottish Ministers by regulations or the Privy
Council by order has constituted a governing body, that governing body;
and
(d) in any other case, any board of governors of the institution or
any person responsible for the management of the institution, whether or
not formally constituted as a governing body or board of governors.
33 Short title and commencement
(1) This Act may be cited as the Tertiary Education (Funding etc.) (Scotland)
Act 2004.
(2) This Act, except sections 30 to 32 and this section, comes into force
on such day as the Scottish Ministers may by order appoint.
(3) Different days may be so appointed for different provisions and for
different purposes.
SCHEDULE 1
(introduced by section 9)
The Scottish Tertiary Education Funding Council
Status
1 (1) The Council is a body corporate.
(2) The Council—
(a) is not a servant or agent of the Crown;
(b) has no status, immunity or privilege of the Crown,
and its property is not to be regarded as property of, or held on behalf
of, the Crown.
Membership of the Council
2 (1) The Council is to consist of the following members—
(a) a person appointed by the Scottish Ministers to chair meetings
of the Council; and
(b) no fewer than 11 nor more than 14 other members appointed by the
Scottish Ministers.
(2) Each member is to be appointed for a period not exceeding 4 years.
(3) The Scottish Ministers may, on the expiry of a period of appointment
of a member, extend that appointment for a single further period not exceeding
4 years.
(4) A member—
(a) may by giving notice in writing to the Scottish Ministers resign
office as a member of the Council; and
(b) otherwise, holds and vacates office in accordance with the terms
and conditions of appointment.
(5) If the Scottish Ministers are satisfied that a member of the Council—
(a) has been absent from meetings of the Council for a period longer
than 6 consecutive months without the permission of the Council; or
(b) is otherwise unable or unfit to discharge the functions of a member,
the Scottish Ministers may by giving notice in writing to the member remove
the member from office.
(6) A person is, on ceasing to be a member, eligible for reappointment.
3 (1) In appointing members, the Scottish Ministers are to have regard
to the desirability of including—
(a) persons who—
(i) have experience of, and have shown capacity in, the provision
of tertiary education; or
(ii) have held, and have shown the capacity in, any position carrying
the responsibility for the provision of tertiary education;
(b) persons who have experience of, and have shown capacity in industrial,
commercial or financial matters or the practice of any profession; and
(c) persons who have such other skills, knowledge or experience as
the Scottish Ministers consider to be relevant in relation to the exercise
of the Council’s functions.
(2) In appointing members, the Scottish Ministers are also to have regard
to the desirability of—
(a) including persons who are currently engaged in the provision of,
or carrying responsibility for the provision of, tertiary education; and
(b) the membership of the Council (taken as a whole) having experience
of, and having shown capacity in, a broad range of tertiary education.
Disqualification from membership
4 A person is disqualified from appointment, and from holding office,
as a member of the Council if that person is—
(a) a member of the House of Lords;
(b) a member of the House of Commons;
(c) a member of the Scottish Parliament;
(d) a member of the European Parliament; or
(e) disqualified from election as a member of the Scottish Parliament
or as a member of a local authority.
Remuneration, allowances and pensions for members
5 (1) The Council—
(a) is to pay to its members such remuneration and allowances; and
(b) is, in respect of any office held by a person as member, to pay,
or make such payments towards the provision of, such pensions, allowances
and gratuities,
as the Scottish Ministers may in each case determine.
(2) Where a person ceases to be a member of the Council, the Scottish
Ministers may, in special circumstances, direct the Council to make to the
person a payment of such amount of compensation as the Scottish Ministers
may determine.
Chief executive
6 (1) The Council is to employ a chief executive.
(2) The person referred to in sub-paragraph (3) is (except where sub-paragraph
(4) applies) transferred to the employment of, and becomes the first chief
executive of, the Council.
(3) That person is the person who (by virtue of holding (under section
59A(1) and (2)(a) of the 1992 Act) appointments as both the chief officer
of the Scottish Higher Education Funding Council and as the equivalent officer
of the Scottish Further Education Funding Council) was acting as the chief
officer of the body created under section 59A(2)(c) of the 1992 Act immediately
before the dissolution of those bodies under section 10.
(4) But if—
(a) there was no person acting as the chief officer of the body created
by virtue of section 59A(2)(c) of the 1992 Act immediately before the dissolution
of that body; or
(b) the person so acting immediately before the dissolution of that
body is unwilling, unable or unfit to be transferred to the employment of
the Council,
the Scottish Ministers are, after consultation with the Council, to make
the first appointment of the chief executive of the Council on such terms
and conditions as the Scottish Ministers may determine.
(5) Each subsequent chief executive is, with the approval of the Scottish
Ministers, to be appointed by the Council on such terms and conditions as
the Council may, with such approval, determine.
Other staff
7 (1) All staff employed (immediately before the coming into force
of this paragraph) by—
(a) the Scottish Higher Education Funding Council;
(b) the Scottish Further Education Funding Council;
(c) those Councils jointly; and
(d) the body created by virtue of section 59A(2)(c) of the 1992 Act,
are transferred to the employment of the Council.
(2) The Council may, with the approval of the Scottish Ministers, appoint
such other employees on such terms and conditions as the Council may, with
such approval, determine.
TUPE Regulations
8 The Transfer of Undertakings (Protection of Employment) Regulations
1981 (S.I. 1981/1794) apply to transfers under paragraphs 6(2) and 7(1) (and
whether or not they would so apply apart from this paragraph).
Transfer of property and liabilities
9 (1) All property (including rights) and liabilities (subsisting
immediately before the coming into force of this paragraph) of—
(a) the Scottish Higher Education Funding Council;
(b) the Scottish Further Education Funding Council; and
(c) the body created by virtue of subsection (2)(c) of section 59A
of the 1992 Act,
are transferred to, and vest in, the Council.
(2) Sub-paragraph (1) has effect in relation to property and liabilities
to which it applies despite any provision (of whatever nature) which would
otherwise prevent, penalise or restrict the transfer of the property or liabilities.
Proceedings of the Council
10 (1) The Council may regulate its own procedure (including any quorum).
(2) The validity of any proceedings of the Council is not affected by
a vacancy in membership nor by any defect in the appointment of a member.
Committees
11 (1) The Council must establish a committee (a "research committee")
for the purposes of advising the Council on matters concerning research.
(2) In appointing members of the research committee, the Council is to
have regard to the desirability of including persons who—
(a) have experience, and have shown capacity, relating to research
or the application of research; and
(b) are currently engaged in research or the application of research.
12 (1) The Council may establish other committees for any purpose
relating to its functions.
(2) The Council is to—
(a) subject to paragraph 11(2), determine the composition of its committees;
(b) determine the terms and conditions of committee membership; and
(c) determine the procedure (including any quorum) of its committees.
(3) Any of the committees of the Council may include persons who are
not members of the Council.
(4) The Council is to pay to the members of its committees (whether or
not they are also members of the Council) such allowances as the Scottish
Ministers may determine.
(5) The Council is to keep under review the structure of its committees
and the scope of the activities of each.
Delegation of functions
13 (1) The Council may authorise—
(a) the person appointed to chair meetings of the Council;
(b) the chief executive; or
(c) any of its committees,
to exercise such of its functions (to such extent) as it may determine.
(2) Sub-paragraph (1) does not affect the responsibility of the Council
for the exercise of its functions.
Participation of Scottish Ministers at meetings
14 Any representative of the Scottish Ministers is entitled to participate
in any deliberations (but not in decisions) at meetings of the Council or
of any committee of the Council.
Accounts
15 (1) The Council must—
(a) keep proper accounts and accounting records;
(b) prepare in respect of each financial year a statement of accounts;
and
(c) send the statement of accounts to the Scottish Ministers,
in accordance with such directions as the Scottish Ministers may give.
(2) The Scottish Ministers must send the statement of accounts to the
Auditor General for Scotland for auditing.
Reports and information
16 (1) As soon as practicable after the end of each financial year,
the Council must prepare a report on its activities during that year and must—
(a) send a copy of the report to the Scottish Ministers; and
(b) publish the report,
in accordance with such direction as the Scottish Ministers may give.
(2) The Scottish Ministers must lay a copy of the report before the Parliament.
(3) The Council must provide the Scottish Ministers with such other information
(including information in the form of a document) relating to the exercise
of its functions as the Scottish Ministers may reasonably require.
SCHEDULE 2
(introduced by section 21)
Specified tertiary education providers
Incorporated colleges
Aberdeen College of Further Education
Angus College of Further Education
Anniesland College
Ayr College
Banff and Buchan College of Further Education
The Barony College
Borders College
Cardonald College
Central College of Commerce
Clackmannan College of Further Education
Clydebank College
Coatbridge College
Cumbernauld College
Dumfries and Galloway College
Dundee College
Edinburgh’s Telford College
Elmwood College
Falkirk College of Further and Higher Education
Fife College of Further and Higher Education
Glasgow College of Building and Printing
Glasgow College of Food Technology
Glasgow College of Nautical Science
Glenrothes College
Inverness College
James Watt College of Further and Higher Education
Jewel and Esk Valley College
John Wheatley College
Kilmarnock College
Langside College
Lauder College
Lews Castle College
Moray College
Motherwell College
North Glasgow College
The North Highland College
Oatridge Agricultural College
Perth College
Reid Kerr College
South Lanarkshire College
Stevenson College Edinburgh
Stow College
West Lothian College
Non-incorporated colleges
Newbattle Abbey College
Orkney College
Sabhal Mòr Ostaig
Shetland College
Higher education institutions
University of Abertay Dundee
Bell College of Technology
Edinburgh College of Art
Glasgow Caledonian University
Glasgow School of Art
Napier University
University of Paisley
Queen Margaret University College
The Robert Gordon University
Royal Scottish Academy of Music and Drama
UHI Millennium Institute
Ancient and chartered universities
University of St. Andrews
University of Glasgow
University of Aberdeen
University of Edinburgh
University of Dundee
Heriot-Watt University
Stirling University
Strathclyde University
The Open University (so far as carrying on activities in or as regards Scotland)
SCHEDULE 3
(introduced by section 29)
Amendment of enactments
Superannuation Act 1972 (c.11)
1 In the Superannuation Act 1972, in Schedule 1 (kinds of employment,
etc. referred to in section 1) entries relating to—
(a) the Scottish Further Education Funding Council;
(b) the Scottish Higher Education Funding Council; and
(c) a body corporate created by virtue of section 59A(2)(c) of the
Further and Higher Education (Scotland) Act 1992,
are repealed.
House of Commons Disqualification Act 1975 (c.24)
2 In the House of Commons Disqualification Act 1975, in Part III of Schedule
1 (disqualifying offices) the entries relating to—
(a) the Scottish Further Education Funding Council; and
(b) the Scottish Higher Education Funding Council,
are repealed.
Sex Discrimination Act 1975 (c.65)
3 In the Sex Discrimination Act 1975, section 23B is repealed.
Race Relations Act 1976 (c.76)
4 In the Race Relations Act 1976—
(a) section 18B; and
(b) in Schedule 1A (bodies and other persons subject to general statutory
duty), the entries relating to—
(i) the Scottish Further Education Funding Council; and
(ii) the Scottish Higher Education Funding Council,
are repealed.
Further and Higher Education (Scotland) Act 1992 (c.37)
5 (1) In the 1992 Act—
(a) in section 3 (powers of Scottish Ministers), in subsection (1),
the words from "shall" to "he" are repealed;
(b) in section 12 (boards of management), in subsection (1), for the
words from "of" in the second place where it occurs to the end there is
substituted "managing and conducting their college.";
(c) in section 44 (designation of institutions), in subsection (1),
for the words from "by" to the end there is substituted ", for the purposes
of this Part, by order designate any institution providing higher education
(whether or not it also provides education of any other kind or carries
on any other activities)."; and
(d) in section 61 (interpretation), after the words "1980;" there is
inserted—
"the Council" means the Scottish Tertiary Education Funding Council;".
(2) In that Act—
(a) section 1(1) and (2) and (4) to (6);
(b) sections 4, 7 to 10, 21 to 23, 37, 39 to 43, 50, 51, 53, 54 and
59A;
(c) Schedules 1 and 7; and
(d) paragraphs 4(3) and 5(3) of Schedule 9,
are repealed.
Teaching and Higher Education Act 1998 (c.30)
6 In the Teaching and Higher Education Act 1998—
(a) section 37 (joint exercise of functions of funding council in Scotland);
and
(b) in paragraph 2 of Schedule 3 (minor and consequential amendments),
the entry relating to a body corporate created by virtue of section 59A(2)(c)
of the Further and Higher Education (Scotland) Act 1992,
are repealed.
Public Finance and Accountability (Scotland) Act 2000 (asp 1)
7 In the Public Finance and Accountability (Scotland) Act 2000, in paragraph
11 of schedule 4 (modification of enactments), sub-paragraphs (2) and (4)
are repealed.
Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7)
8 In the Ethical Standards in Public Life etc. (Scotland) Act 2000, in
schedule 3 (devolved public bodies)—
(a) the entries relating to—
(i) the Scottish Further Education Funding Council; and
(ii) the Scottish Higher Education Funding Council,
are repealed; and
(b) after the entry relating to the Scottish Sports Council there is
inserted—
"The Scottish Tertiary Education Funding Council".
Scottish Public Services Ombudsman Act 2002 (asp 11)
9 In the Scottish Public Services Ombudsman Act 2002, in schedule 2 (listed
authorities)—
(a) paragraphs 41 and 43 are repealed; and
(b) after paragraph 52 there is inserted—
"52A The Scottish Tertiary Education Funding Council.".
Freedom of Information (Scotland) Act 2002 (asp 13)
10 In the Freedom of Information (Scotland) Act 2002, in schedule 1 (Scottish
public authorities)—
(a) in paragraph 49, for the word "Higher" there is substituted "Tertiary";
(b) paragraphs 86 and 87 are repealed; and
(c) after paragraph 100 there is inserted—
"100A The Scottish Tertiary Education Funding Council.".
Public Appointments and Public Bodies etc. (Scotland) Act 2003 (asp 4)
11 In the Public Appointments and Public Bodies etc. (Scotland) Act 2003,
in schedule 2 (specified authorities)—
(a) the entries relating to the—
(i) Scottish Further Education Funding Council; and
(ii) Scottish Higher Education Funding Council,
are repealed; and
(b) after the entry relating to the Scottish Sports Council there is
inserted—
"Scottish Tertiary Education Funding Council".
The Scottish Further Education Funding Council (Establishment) (Scotland)
Order 1998 (S.I. 1998/2667)
12 The Scottish Further Education Funding Council (Establishment) (Scotland)
Order 1998 (S.I. 1998/2667) is revoked.
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