Further and Higher Education (Scotland) Act 2005

Part 1 S Further and higher education etc.

Establishment of the Scottish Further and Higher Education Funding Council S

1 Scottish Further and Higher Education Funding Council S

(1) There is established a body to be known as the Scottish Further and Higher 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.

Commencement Information

I1 S. 1 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

2 Dissolution of other funding bodies S

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); and

(b) the Scottish Higher Education Funding Council (established by section 37(1) of that Act).

Commencement Information

I2 S. 2 in force at 8.9.2005 by S.S.I. 2005/419, art. 2(2)

Provision of further and higher education etc. S

3 The Council: general duty S

It is the duty of the Council to exercise its functions for the purposes of securing the—

(a) coherent provision by the [F1 post-16 education] bodies (as a whole) of a high quality of fundable further education and fundable higher education; and

(b) undertaking of research among the [F2 post-16 education] bodies.

Textual Amendments

F1 Words in s. 3(a) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(2)(a); S.S.I. 2014/21, art. 2, Sch. 1

F2 Words in s. 3(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(2)(b); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I3 S. 3 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

4 The Scottish Ministers: general duty S

(1) It is the duty of the Scottish Ministers to provide support for—

(a) the provision of fundable further education and fundable higher education by the [F3 post-16 education] bodies; and

(b) the undertaking of research among the [F4 post-16 education] bodies.

(2) The Scottish Ministers are to do so—

(a) by—

(i) making grants to the Council under section 9 or 10 (or both); and

(ii) such other means as they consider appropriate; and

(b) to such extent as they may determine.

Textual Amendments

F3 Words in s. 4(1)(a) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(3)(a); S.S.I. 2014/21, art. 2, Sch. 1

F4 Words in s. 4(1)(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(3)(b); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I4 S. 4 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

5 Fundable further and higher education S

(1) In this Act (subject to subsection (2)), “fundable further education” means any programme of learning (which is not school education within the meaning of the 1980 Act) 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) prepares a person for access to a course of fundable higher education;

(d) is designed to assist persons whose first language is not English to achieve any level of competence in English language;

(e) provides instruction for persons who are participating in a programme of learning referred to in this subsection and who have support needs; or

(f) prepares a person for participation in any programme of learning referred to in this subsection.

(2) In this Act, “fundable further education” also includes education of a type described in subsection (5)(b)(ii) to (iv) of section 1 (duty of education authorities to secure provision of education) of the 1980 Act.

(3) In this Act, “fundable higher education” means any course of education which—

(a) is a course at a higher level in preparation for a higher diploma or certificate;

(b) is a first degree course;

(c) is a course for the education and training of teachers;

(d) is a course of post-graduate studies (including a higher degree course);

(e) is a course at a higher level in preparation for a qualification from a professional body;

(f) is a course at a higher level not referred to in any of paragraphs (a) to (e);

(g) provides instruction for persons who are participating in a course of education referred to in this subsection and who have support needs; or

(h) is designed predominantly to prepare a person for participation in any course of education referred to in this subsection.

(4) For the purposes of subsection (3)(a), (e) and (f), 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 Vocational Qualification Level 3;

(b) the Scottish Certificate of Education at Advanced Higher;

(c) the General Certificate of Education of England and Wales or Northern Ireland at advanced level; or

(d) the Scottish Qualifications Authority national certificate.

(5) For the purposes of subsection (3)(d), post-graduate studies includes a course following the award of a higher diploma or certificate.

(6) The Scottish Ministers may by order modify subsections (1) to (5).

(7) Before making an order under subsection (6), the Scottish Ministers must consult the Council.

Commencement Information

I5 S. 5 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

6 Fundable bodies S

[F5 (1) In this Act, “ fundable body ” means—

(a) any body specified in schedule 2; and

(b) any regional strategic body (see section 7B).]

(2) In this Act, any reference to a fundable [F6 post-16 education] body means a body specified in [F7 schedule 2].

Textual Amendments

F5 S. 6(1) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(4)(a); S.S.I. 2014/21, art. 2, Sch. 1

F6 Words in s. 6(2) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(4)(b)(i); S.S.I. 2014/21, art. 2, Sch. 1

F7 Words in s. 6(2) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(4)(b)(ii); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I6 S. 6 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

7 Fundable bodies: further provision S

(1) The Scottish Ministers may by order modify schedule 2 by—

(a) adding or removing any entry relating to a body; or

(b) varying any such entry,

but only if the Council has proposed, or has approved, the making of the modification.

(2) For the purposes of considering whether or not to propose or approve any modification under subsection (1), the Council must have regard to the desirability of ensuring that every entry in schedule 2 relates to a body for which there is, in the Council's opinion, suitable—

(a) provision in relation to the governance and management of the body;

(b) provision for the appointment of an officer who is responsible for—

(i) signing the accounts of the expenditure and receipts of the body;

(ii) ensuring the propriety and regularity of the finances of the body; and

(iii) ensuring that the resources of the body are used economically, efficiently and effectively;

(c) procedures for—

(i) assessing; and

(ii) enhancing,

the quality of the activities funded by financial support given to the body by the Council;

(d) procedures for considering and resolving any grievances arising from the carrying on of the body's activities;

(e) provision for the purposes of—

(i) planning for the carrying on of the body's activities; and

(ii) development of the body's activities;

(f) arrangements for making use of any credit and qualification framework promoted by the Council under section 14;

[F8 (fa) arrangements for the purpose of seeking to ensure that the interests of the body's students are represented by a students' association;]

(g) arrangements for taking into account the educational and related needs (including support needs) of persons who are, and the likely educational and related needs (including support needs) of persons who might wish to become, students of the body;

(h) arrangements for taking into account, when determining what programmes of learning and courses of education to provide, the range of fundable further education and fundable higher education provided at the other [F9 post-16 education] bodies; F10 ...

[F11 (ha) where the body is a regional strategic body, procedures and arrangements for the administration by the body of the funds mentioned in section 12A(2) and for the exercise of its other functions as a regional strategic body; and]

(i) provision, procedures or arrangements of such other kind as the Scottish Ministers may by regulations specify.

[F12 (2A) Paragraph (ha) of subsection (2) applies only where the Council is considering whether to remove the entry relating to the body concerned from schedule 2.]

(3) When proposing or approving a modification under subsection (1) which adds to schedule 2 an entry relating to a body, the Council may make a recommendation to the Scottish Ministers as regards the application to the body of paragraph 92(1) of schedule 2 to the Scottish Public Services Ombudsman Act 2002 (asp 11).

(4) The Scottish Ministers may by order modify paragraphs (a) to [F13 (ha)] of subsection (2).

(5) The Scottish Ministers may issue guidance in relation to any of the matters referred to in paragraphs (a) to (i) of subsection (2).

(6) Subsection (2) does not apply where the modification in question is required by reason only of a change of name of, or closure of, a body.

Textual Amendments

F8 S. 7(2)(fa) inserted (10.10.2013) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(a)(i); S.S.I. 2013/281, art. 2, Sch.

F9 Words in s. 7(2)(h) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F10 Word in s. 7(2) omitted (1.5.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(a)(iii); S.S.I. 2014/79, art. 2(1), Sch. 1

F11 S. 7(2)(ha) inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(a)(iv); S.S.I. 2014/79, art. 2(1), Sch. 1

F12 S. 7(2A) inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(b); S.S.I. 2014/79, art. 2(1), Sch. 1

F13 Word in s. 7(4) substituted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(5)(c); S.S.I. 2014/79, art. 2(1), Sch. 1

Commencement Information

I7 S. 7 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F14 7A Regional colleges S

(1) The Scottish Ministers may by order designate as a regional college any college of further education whose board of management is (or is to be) established in pursuance of Part 1 of the 1992 Act.

(2) Before making an order under this section, the Scottish Ministers must consult—

(a) the board of management of the college to which the order relates (where that board is already established);

(b) the representatives of any trade union which the college recognises or which otherwise appears to the Scottish Ministers to be representative of its staff;

(c) the college's students' association;

(d) the local authority for the area in which the college is situated;

(e) the Council; and

(f) any other person appearing to the Scottish Ministers as likely to be affected by the order.]

Textual Amendments

F14 S. 7A inserted (13.1.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 5(1), 23(2); S.S.I. 2013/348, art. 2, Sch.

[F15 7B Regional strategic bodies S

(1) In this Act—

(a) any reference to a regional strategic body is a reference to a body specified in schedule 2A;

(b) any reference to a regional board is a reference to a body specified in Part 1 of that schedule.

(2) The Scottish Ministers may by order—

(a) modify Part 1 of schedule 2A so as to establish, abolish or re-name a regional board;

(b) modify Part 2 of schedule 2A by adding, removing or varying any entry relating to a fundable post-16 education body.

(3) Before making an order under subsection (2), the Scottish Ministers must consult—

(a) the Council;

(b) the local authority for any area in which post-16 education bodies provide, or are to provide, fundable further education or fundable higher education which is funded, or is to be funded, by the regional strategic body to which the order relates;

(c) where it relates to a regional strategic body which already exists, the regional strategic body and its colleges; and

(d) any other person appearing to the Scottish Ministers as likely to be affected by the order.]

Textual Amendments

F15 S. 7B inserted (3.3.2014 for specified purposes) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 8(1), 23(2); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(1))

[F16 7C Assignation of colleges S

(1) The Scottish Ministers may by order assign colleges of further education to a regional strategic body.

(2) An order may assign a college which is not, immediately before the order is made, either—

(a) a fundable post-16 education body; or

(b) assigned to another regional strategic body,

only if the Council has proposed, or has approved, the assignation.

(3) For the purposes of considering whether or not to propose or approve any assignation under subsection (2), the Council must have regard to the desirability of ensuring that the college concerned is a body for which there are suitable provisions, procedures and arrangements of the type described by or under section 7(2).

(4) Without prejudice to section 34(2), the power to make an order under subsection (1) includes power to—

(a) remove from schedule 2 any entry relating to a college to which the order relates;

(b) make such further provision in relation to such a college as the Scottish Ministers consider appropriate.

(5) But an order under subsection (1) may remove an entry relating to a college from schedule 2 only if the Council has proposed, or has approved, the removal.

(6) Before making an order under this section, the Scottish Ministers must consult—

(a) the regional strategic body (except where not already established);

(b) every college to which the order relates (except any not already established);

(c) the representatives of any trade union which is recognised by any college to which the order relates or which otherwise appears to the Scottish Ministers to be representative of the staff of such a college;

(d) the students' associations of the colleges to which the order relates;

(e) the Council;

(f) any local authority for an area in which any of the colleges to which the order relates is situated; and

(g) any other person appearing to the Scottish Ministers as likely to be affected by the order.

(7) The Council may, whenever it considers appropriate, review whether a college which is assigned by order under subsection (1) is a body for which there are suitable provisions, procedures and arrangements of the type described by or under section 7(2).

(8) On completing a review, the Council must provide a report of the review to the Scottish Ministers which—

(a) sets out the conclusions which it has reached;

(b) explains why it has reached those conclusions; and

(c) makes any recommendations for action in consequence of those conclusions as it considers appropriate.

(9) References in this Act to a regional strategic body's colleges are references to the governing bodies of the colleges assigned to it by an order under this section.]

Textual Amendments

F16 S. 7C inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 8(3), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

[F17 7D Orders under sections 7A to 7C: supplemental S

(1) This subsection applies to—

(a) any order under section 7A(1) which designates a regional college (or which revokes such a designation); and

(b) any order under section 7C(1) which assigns a college of further education to a regional strategic body (or which revokes such an assignation).

(2) An order to which subsection (1) applies may—

(a) make provision about the membership of the board of management of the college of further education concerned;

(b) make such additional provision (not being provision mentioned in paragraph (a)) as is considered appropriate in relation to the change of status of the college concerned.

(3) Subsection (2)(a) applies only where the college of further education concerned is one whose board of management is established in pursuance of Part 1 of the 1992 Act.

(4) Provision under subsection (2)(a) may include provision—

(a) authorising the Scottish Ministers to make arrangements for, or otherwise providing for, the continuing in office, or the removal from office, of persons who are members of the board immediately before the day on which the designation or assignation has, or ceases to have, effect;

(b) for the appointment by the Scottish Ministers, on terms and conditions determined by them, of persons who are to be members of the board from that day;

(c) deeming persons who continue in office, or who are appointed in pursuance of paragraph (b), to hold office from that day as if appointed under such provision of paragraph 3 or, as the case may be, 3A of Schedule 2 to the 1992 Act as may be specified in the order.

(5) But such an order may not make provision in pursuance of subsection (4)(b) under which a person appointed to a board of management is to hold office otherwise than as if appointed under paragraph 3(2)(a) or (f) or, as the case may be, 3A(2)(a) or (f) of Schedule 2 to the 1992 Act.

(6) Subsections (1) to (5) do not prejudice the generality of powers conferred by section 34(2).

(7) The Scottish Ministers must, in pursuance of sections 7A to 7C, seek to ensure—

(a) that every college of further education whose governing body is established in pursuance of Part 1 of the 1992 Act is either—

(i) designated as a regional college; or

(ii) assigned to a regional strategic body; and

(b) that at least two colleges of further education are assigned to each regional board.

(8) Where, despite subsection (7)(a), a college of further education whose governing body is so established is not so designated or assigned, the college is (subject to any contrary provision made under section 33 or 34(2) of this Act or section 22 of the Post-16 Education (Scotland) Act 2013) to be treated for the purposes of this Act, the 1992 Act and any other enactment as having been designated as a regional college.

(9) Nothing in subsections (7) and (8) affects the power to make an order under section 7C(1) in relation to a college of further education whose governing body is not so established.]

Textual Amendments

F17 S. 7D inserted (3.3.2014 for specified purposes) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(6); S.S.I. 2014/21, art. 2, Sch. 1

8 Support needs S

(1) In this Act, a person has “support needs” if the person needs support for the purposes of overcoming a difficulty in learning, or a difficulty in participating in learning, which the person has.

(2) And—

(a) a person has a difficulty in learning if the person has significantly greater difficulty in learning than the majority of other persons within the same age group as the person; and

(b) a person has a difficulty in participating in learning if the person has greater difficulty in participating in learning than the majority of other persons within the same age group as the person.

(3) But a person is not be to be taken as having a difficulty in learning, or a difficulty in participating in learning, 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.

Commencement Information

I8 S. 8 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

Funding of further and higher education etc. S

9 Funding of the Council S

(1) The Scottish Ministers may make grants to the Council.

(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 [F18 any of the conditions referred to in subsections (4) to (5A)].

[F19 (c) include any terms or conditions referred to in sections 9A to 9D.]

(4) The condition is that, before the Council makes a payment to a fundable body under section 12(1) of such amount or description as the Scottish Ministers may in the condition specify, the fundable body [F20 —

(a) where it is a fundable post-16 education body, is to comply with any matters concerning fundable post-16 education bodies or any class of them as the Scottish Ministers may specify;

(b) where it is a regional strategic body, is—

(i) to comply with any matters concerning regional strategic bodies generally as the Scottish Ministers may specify; or

(ii) when making a payment to any of its colleges under section 12B(1), to impose on the college a requirement to comply with any matters concerning post-16 education bodies or any class of them as the Scottish Ministers may specify.]

(5) The condition is that—

(a) when making a payment to a fundable [F21 post-16 education] body 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 body a condition making the requirement referred to in subsection (6).

[F22 (5A) The condition is that—

(a) when making a payment to a regional strategic body 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 section 12) to impose on the regional strategic body a condition that it must, when making a payment to any of its colleges under section 12B(1), impose on the college a condition making the requirement referred to in subsection (6).]

(6) The requirement is that the [F23 post-16 education] body to whom the payment is being made is to secure that the fees paid to the [F23 post-16 education] body—

(a) by such class of persons as the Scottish Ministers may by order specify; and

(b) in connection with their attending—

(i) such programmes of learning as the Scottish Ministers may by order specify; or

(ii) such courses of education as the Scottish Ministers may by order specify,

are equal to such fees as are, in relation to those persons attending those programmes and courses, payable under subsection (7).

(7) For the purposes of subsection (6), the Scottish Ministers may (in relation to those persons attending those programmes and courses) by order—

(a) specify, by reference to a particular academic year (“year A”), fees payable; and

(b) make provision authorising the Scottish Ministers to determine, in relation to subsequent academic years, fees payable that are—

(i) in each case, no higher than the fees specified by reference to year A; or

(ii) in any case, higher than the fees specified by reference to year A provided that any increase in fees is no greater than is required in order to maintain the value in real terms of the fees specified by reference to year A.

(8) A condition imposed on a fundable [F24 post-16 education] body by virtue of subsection (5) is to make provision that is to apply if the fundable [F24 post-16 education] body fails to comply with the requirement referred to in subsection (6).

(9) A condition imposed on a fundable [F25 post-16 education] body 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.

(10) The Scottish Ministers may not specify programmes or courses under subsection (6)(b) in such a way as to discriminate between different programmes or courses which are—

(a) for the training of persons preparing to be teachers; and

(b) open only to persons holding a degree,

on the basis of the subject in which such training is given.

(11) Terms and conditions imposed under subsection (2) may not, except [F26 where imposed in pursuance of subsection (4)(a) or (b)(ii) or section 9A or 9B], relate to the provision of financial support by the Council [F27 or a regional strategic body] in respect of activities carried on by any particular F28 ... body or bodies.

(12) Terms and conditions imposed under subsection (2) may not—

(a) except in so far as provided for in subsections (5) to (7) [F29 and in section 9D], be framed by reference to particular programmes of learning, courses of education or research (including the contents of such programmes or courses or the manner in which they are taught, supervised or assessed); F30 ...

(b) be framed by reference to the criteria for—

(i) the selection or appointment of academic staff; or

F31 (...) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F32 (c) except where imposed in pursuance of section 9C, be framed by reference to the criteria for the admission of students.]

(13) Before laying a draft of an order under subsection (6) or (7) before the Parliament in pursuance of section 34(4), the Scottish Ministers must—

(a) lay before the Parliament—

(i) a copy of the proposed draft order; and

(ii) a statement of their reasons for proposing to make the order;

(b) publicise the proposed draft order in such manner as they consider appropriate;

(c) invite written representations on the proposed draft order, in particular from—

(i) the Council;

(ii) at least one body of persons which appears to them to be representative of students of the [F33 post-16 education] bodies; and

(iii) such governing bodies of [F34 post-16 education bodies, and such regional strategic bodies,] as they consider appropriate; and

(d) have regard to any written representations about the proposed draft order that are made to them within 60 days of the date on which the invitation under paragraph (c) was issued.

(14) When laying a draft of an order under subsection (6) or (7) before the Parliament in pursuance of section 34(4), the Scottish Ministers must also lay a statement summarising—

(a) all representations about the proposed draft order to which they have had regard under subsection (13)(d);

(b) the changes (if any) made to the proposed draft order in light of the representations; and

(c) any reasons for making, or not making, changes in light of the representations.

(15) The body known as the National Union of Students Scotland is to be invited under subsection (13)(c)(ii) to make representations.

(16) The Scottish Ministers may by order modify subsection (15).

(17) For the purposes of subsection (7)(b)(ii), the Scottish Ministers may have regard to any retail price index.

Textual Amendments

F18 Words in s. 9(3)(b) substituted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(a)(i); S.S.I. 2014/79, art. 2(1), Sch. 1

F19 S. 9(3)(c) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F20 Words in s. 9(4) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(b); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(2))

F21 Words in s. 9(5)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(c); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(2))

F22 S. 9(5A) inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(d); S.S.I. 2014/79, art. 2(1), Sch. 1

F23 Words in s. 9(6) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(e); S.S.I. 2014/21, art. 2, Sch. 1

F24 Words in s. 9(8) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(f); S.S.I. 2014/21, art. 2, Sch. 1

F25 Words in s. 9(9) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(g); S.S.I. 2014/21, art. 2, Sch. 1

F26 Words in s. 9(11) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(h)(i); S.S.I. 2014/21, art. 2, Sch. 1

F27 Words in s. 9(11) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(h)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F28 Word in s. 9(11) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(h)(iii); S.S.I. 2014/21, art. 2, Sch. 1

F29 Words in s. 9(12)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(i)(i); S.S.I. 2014/21, art. 2, Sch. 1

F30 Word in s. 9(12) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(i)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F31 S. 9(12)(b)(ii) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(i)(iii); S.S.I. 2014/21, art. 2, Sch. 1

F32 S. 9(12)(c) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(i)(iv); S.S.I. 2014/21, art. 2, Sch. 1

F33 Words in s. 9(13)(c)(ii) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(j)(i); S.S.I. 2014/21, art. 2, Sch. 1

F34 Words in s. 9(13)(c)(iii) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(7)(j)(ii); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I9 S. 9 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F35 9A Higher education institutions: good governance S

The Scottish Ministers may, under section 9(2), impose a condition that the Council must, when making a payment to a higher education institution under section 12(1), require the institution to comply with any principles of governance which appear to the Council to constitute good practice in relation to higher education institutions.]

Textual Amendments

F35 S. 9A inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 2, 23(2); S.S.I. 2014/21, art. 2, Sch. 1

[F36 9B Further education institutions: good governance S

(1) The Scottish Ministers may, under section 9(2), impose a condition that the Council must, when making a payment under section 12(1) to a college of further education which is a fundable post-16 education body, require it to comply with any principles of governance which appear to the Council to constitute good practice in relation to colleges of further education.

(2) The Scottish Ministers may, under section 9(2), impose a condition that the Council must, when making a payment to a regional strategic body under section 12(1), require it—

(a) to comply with any principles of governance which appear to the Council to be appropriate in relation to such a body; or

(b) to impose, when making a payment to any of its colleges under section 12B(1), a condition requiring the college to comply with any principles of governance which appear to the Council to constitute good practice in relation to colleges of further education.]

Textual Amendments

F36 S. 9B inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 14, 23(2); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(2))

[F37 9C Widening access to fundable higher education S

(1) The Scottish Ministers may, under section 9(2), impose terms and conditions for the purposes of enabling, encouraging or increasing participation in fundable higher education by persons belonging to any socio-economic group which they reasonably consider to be under-represented in such education.

(2) The Scottish Ministers may, in particular, impose a condition that the Council, when making a payment to a higher education institution under section 12(1), must require the institution to comply with a widening access agreement which makes provision in relation to—

(a) any socio-economic group which the Scottish Ministers reasonably consider to be under-represented in fundable higher education; and

(b) other socio-economic groups, if any, which the Council and the institution agree are under-represented in fundable higher education.

(3) A “widening access agreement” is an agreement between a higher education institution and the Council under which the institution is to take actions specified in the agreement for the purposes of enabling, encouraging or increasing participation in fundable higher education provided by the institution by persons belonging to socio-economic groups which are under-represented in fundable higher education (either generally or in such education provided by the institution).

(4) Before entering into a widening access agreement in pursuance of this section, a higher education institution must consult—

(a) the representatives of any trade union which the institution recognises or which otherwise appears to it to be representative of its staff; and

(b) the institution's students' association.

(5) For the purposes of this section, a socio-economic group is to be treated as under-represented in fundable higher education if participation in such education by persons in that group is disproportionately low.

(6) The Scottish Ministers, the Council and higher education institutions may take into account any social or economic characteristics which they consider appropriate when determining which groups are to constitute “ socio-economic groups ” for the purposes of this section. ]

Textual Amendments

F37 S. 9C inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 3, 23(2); S.S.I. 2014/21, art. 2, Sch. 1

[F38 9D Fee cap: students liable for higher education fees S

(1) The Scottish Ministers may, under section 9(2), impose a condition that the Council must, when making a payment under section 12(1)—

(a) where the payment is made to a fundable post-16 education body which provides fundable higher education, impose on that body a condition that it complies with the requirement set out in subsection (2);

(b) where the payment is made to a regional strategic body, impose on that body a condition that it must, when making a payment under section 12B(1) to any of its colleges which provides fundable higher education, impose on the college a condition that it complies with the requirement set out in subsection (2).

(2) The requirement is that the post-16 education body to whom the payment is made is to secure that the fees paid to it—

(a) by persons in respect of whom it is authorised or required to charge higher fees by virtue of regulations made under section 1 of the Education (Fees and Awards) Act 1983 (or by such class of such persons as the Scottish Ministers may by order specify);

(b) in connection with their attending in an academic year such courses of education as the Scottish Ministers may by order specify,

do not exceed such amount as the Scottish Ministers may by order specify.

(3) The Scottish Ministers, when making an order under this section, must seek to ensure—

(a) that, subject to any exceptions which they consider appropriate, it applies only in relation to fees payable by persons who have a connection with the United Kingdom; and

(b) that the amount of fees payable by a person attending any course of education provided by a post-16 education body in any particular academic year does not exceed the maximum amount of fees which that person would by virtue of any enactment be liable to pay if attending any higher education course provided elsewhere in the United Kingdom during that year.

(4) The Scottish Ministers may not specify courses under subsection (2)(b) in such a way as to discriminate between different courses which are—

(a) for the training of persons preparing to be teachers; and

(b) open only to persons holding a degree,

on the basis of the subject in which such training is given.

(5) References in this section to the United Kingdom include references to the Channel Islands and the Isle of Man.]

Textual Amendments

F38 S. 9D inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 4, 23(2); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(2))

10 Additional grants S

(1) In addition to any grants made under section 9, the Scottish Ministers may make further grants to the Council.

(2) In particular, a grant under subsection (1) may be made for the purposes of supporting—

(a) restructuring among [F39 post-16 education] bodies (including the merger or demerger of such bodies [F40 and restructuring involving regional strategic bodies]);

(b) innovation in the provision of fundable further education and fundable higher education; or

(c) collaboration between [F41 post-16 education bodies and, where appropriate, between those bodies and regional strategic bodies].

(3) In making a grant under subsection (1), the Scottish Ministers must specify the purposes for which the grant is made.

(4) A grant made under subsection (1) is subject to such terms and conditions as the Scottish Ministers consider it appropriate to impose.

(5) Terms and conditions imposed under subsection (4) 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 9.

(6) But, except in the case of a grant made for the purposes of supporting any of the matters referred to in paragraphs (a) to (c) of subsection (2)—

(a) the purposes specified under subsection (3);

(b) terms and conditions imposed under subsection (4),

may not be framed by reference to a particular [F42 post-16 education] body.

Textual Amendments

F39 Words in s. 10(2)(a) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(8)(a)(i); S.S.I. 2014/21, art. 2, Sch. 1

F40 Words in s. 10(2)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(8)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F41 Words in s. 10(2)(c) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(8)(b); S.S.I. 2014/21, art. 2, Sch. 1

F42 Words in s. 10(6) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(8)(c); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I10 S. 10 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

11 Administration of funds S

(1) The Council is, for the purposes of—

(a) providing support (whether financial or otherwise) for the activities specified in subsection (3); F43 ...

[F44 (aa) providing support (whether financial or otherwise) to regional strategic bodies; and]

(b) exercising its other functions,

responsible for administering the funds mentioned in subsection (2).

(2) The funds are—

(a) all grants made to it under sections 9 and 10; and

(b) any other funds made available to it for those purposes.

(3) The activities are—

(a) the provision of fundable further education and fundable higher education by the fundable [F45 post-16 education] bodies;

(b) the undertaking of research among the fundable [F46 post-16 education] bodies;

(c) the—

(i) provision of such facilities; and

(ii) the carrying on of such other activities,

by the fundable [F47 post-16 education] bodies 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 the fundable [F48 post-16 education] bodies or any other person for the purposes of or in connection with an activity specified in paragraph (a) or (b).

Textual Amendments

F43 Word in s. 11(1) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(a)(i); S.S.I. 2014/21, art. 2, Sch. 1

F44 S. 11(1)(aa) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F45 Words in s. 11(3)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(b)(i); S.S.I. 2014/21, art. 2, Sch. 1

F46 Words in s. 11(3)(b) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(b)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F47 Words in s. 11(3)(c) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(b)(iii); S.S.I. 2014/21, art. 2, Sch. 1

F48 Words in s. 11(3)(d) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(9)(b)(iv); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I11 S. 11 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

12 Funding of fundable bodies S

(1) The Council may make grants, loans or other payments—

(a) to the governing body of any fundable [F49 post-16 education] body in respect of expenditure incurred or to be incurred by the body for the purposes of any of the activities specified in subsection (3)(a) and (b) of section 11;

(b) to—

(i) the governing body of any fundable [F50 post-16 education] body; or

(ii) any other person,

in respect of expenditure incurred or to be incurred by the body or person for the purposes of any of the activities specified in subsection (3)(c) and (d) of that section.

[F51 (c) to a regional strategic body.]

(2) A payment made under subsection (1) may (in addition to any condition which is imposed by virtue of F52 ... section 9) 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 (2) may not relate to the application by the body of any sums which were not derived from the Scottish Ministers.

(5) Before imposing terms and conditions under subsection (2), the Council must—

(a) except where it considers that it is not expedient to do so, consult the governing body of the fundable body to which the payment is to be made; and

(b) if it considers it appropriate to do so, consult such persons as appear to it to represent the interests of [F53 post-16 education bodies, or regional strategic bodies,] or any class of them.

(6) In making payments under subsection (1), the Council is to have regard to the desirability of—

(a) encouraging fundable bodies to maintain or develop funding from other sources;

(b) preserving any distinctive characteristics of particular fundable bodies.

Textual Amendments

F49 Words in s. 12(1)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(1)(a)(i), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F50 Words in s. 12(1)(b)(i) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(1)(a)(ii), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F51 S. 12(1)(c) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(1)(a)(iii), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F52 Words in s. 12(2) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(1)(b), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F53 Words in s. 12(5)(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(1)(c), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I12 S. 12 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F54 12A Regional strategic bodies: administration of funds S

(1) A regional strategic body is, for the purposes of—

(a) providing support (whether financial or otherwise) for the activities specified in subsection (3); and

(b) exercising its other functions,

responsible for administering the funds mentioned in subsection (2).

(2) The funds are—

(a) all funds made available to it under section 12(1)(c); and

(b) any other funds made available to it for those purposes.

(3) The activities are—

(a) the provision of fundable further education and fundable higher education by the regional strategic body's colleges;

(b) the undertaking of research among those colleges;

(c) the—

(i) provision of such facilities; and

(ii) carrying on of such other activities,

by those colleges 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 those colleges or any other person for the purposes of or in connection with an activity specified in paragraph (a) or (b).

Textual Amendments

F54 S. 12A, 12B inserted (1.5.2014 for the insertion of s. 12A) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(2), 23(2); S.S.I. 2014/79, art. 2(1)(3), Sch. 1

12B Funding of assigned colleges S

(1) A regional strategic body may make grants, loans or other payments—

(a) to any of its colleges in respect of expenditure incurred or to be incurred by the college for the purposes of any of the activities specified in subsection (3)(a) and (b) of section 12A;

(b) to—

(i) any of its colleges; or

(ii) any other person,

in respect of expenditure incurred or to be incurred by the college or person for the purposes of any of the activities specified in subsection (3)(c) and (d) of that section.

(2) A payment made under subsection (1) may (in addition to any condition which is imposed in pursuance of conditions imposed on the regional strategic body under section 9) be subject to such terms and conditions as the regional strategic body 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 the regional strategic body may specify;

(b) the interest payable in respect of any period during which a sum due to the regional strategic body is outstanding.

(4) A condition imposed on any of the regional strategic body's colleges in pursuance of section 9(5A) is to make provision that is to apply if the college fails to comply with the requirement referred to in section 9(6).

(5) A condition imposed on any of the regional strategic body's colleges in pursuance of section 9(5A) 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, 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.

(6) Terms and conditions imposed under subsection (2) may not relate to the application by the college of any sums which were not derived from the Council.

(7) Before imposing terms and conditions under subsection (2), a regional strategic body must—

(a) except where it considers that it is not expedient to do so, consult the college to which the payment is to be made; and

(b) if it considers it appropriate to do so, consult such persons as appear to it to represent the interests of its colleges or any class of them.

(8) In making payments under subsection (1), the regional strategic body is to have regard to the desirability of—

(a) encouraging its colleges to maintain or develop funding from other sources;

(b) preserving any distinctive characteristics of particular colleges.]

Textual Amendments

F54 S. 12A, 12B inserted (1.5.2014 for the insertion of s. 12A) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 9(2), 23(2); S.S.I. 2014/79, art. 2(1)(3), Sch. 1

The Council: functions S

13 Quality of fundable further and higher education S

(1) The Council is to secure that provision is made for—

(a) assessing; and

(b) enhancing,

the quality of fundable further education and fundable higher education provided by [F55 post-16 education] bodies.

(2) In exercising the function under subsection (1), the Council must, if it considers it appropriate to do so, consult such persons as appear to it to represent the interests of [F56 post-16 education] bodies or any class of them.

Textual Amendments

F55 Words in s. 13(1) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(10)(a); S.S.I. 2014/21, art. 2, Sch. 1

F56 Words in s. 13(2) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(10)(b); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I13 S. 13 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F57 13A Performance of regional strategic bodies S

The Council is to secure that provision is made for—

(a) assessing; and

(b) enhancing,

the performance of regional strategic bodies.]

Textual Amendments

F57 S. 13A inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(11); S.S.I. 2014/79, art. 2(1), Sch. 1

14 Credit and qualification framework S

(1) The Council is to promote the use by the fundable [F58 post-16 education] bodies of such credit and qualification framework as it may adopt.

(2) The Council must—

(a) have regard to any representations about any particular credit and qualification framework, and about credit and qualification frameworks in general, made to it by—

(i) the Scottish Ministers; F59 ...

(ii) the governing body of any fundable [F60 post-16 education body; or]

[F61 (iii) any regional strategic body; and]

(b) so far as the Council considers appropriate, have regard to any representations about those matters made to it by any other person.

(3) For the purposes of subsections (1) and (2), a “credit and qualification framework” is a system of evaluation relating to fundable further education and fundable higher education (as a whole) through which programmes of learning and courses of education may be compared and understood in relation to each other.

Textual Amendments

F58 Words in s. 14(1) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(12)(a); S.S.I. 2014/21, art. 2, Sch. 1

F59 Word in s. 14(2)(a) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(12)(b)(i); S.S.I. 2014/21, art. 2, Sch. 1

F60 Words in s. 14(2)(a)(ii) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(12)(b)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F61 S. 14(2)(a)(iii) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(12)(b)(iii); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I14 S. 14 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F62 14A Review of fundable further and higher education S

(1) The Council may, with the consent of the Scottish Ministers, review the extent to which fundable further education or fundable higher education is being provided by post-16 education bodies in a coherent manner.

(2) A review may relate to—

(a) any aspect of the funding or provision of fundable further education or fundable higher education (generally or in particular areas); or

(b) any aspect of the legislation or administrative framework which governs the funding or provision of fundable further education or fundable higher education.

(3) When seeking the consent of the Scottish Ministers to conduct a review, the Council must provide a case for review which—

(a) describes the scope of the proposed review; and

(b) explains why it is satisfied that any pre-conditions to conducting a review which the Scottish Ministers may determine are met in relation to the proposed review.

(4) When conducting a review, the Council must consult—

(a) the governing body of any post-16 education body and any regional strategic body to which the review relates;

(b) the representatives of any trade union recognised by any such body or which otherwise appears to the Council to be representative of its staff;

(c) any body which appears to the Council to be representative of trade unions in Scotland;

(d) the students' association of any post-16 education body to which the review relates; and

(e) any body which appears to be the Council to be representative of the interests of students of post-16 education bodies generally.

(5) The bodies to which this subsection applies must provide the Council with such information, and make available for inspection such accounts and other documents, as the Council may reasonably require for the purposes of conducting a review.

(6) Subsection (5) applies to—

(a) post-16 education bodies; and

(b) regional strategic bodies.

(7) On completing a review, the Council must provide the Scottish Ministers, and any post-16 education body and regional strategic body to which the review relates, with a report of the review which—

(a) sets out the conclusions which it has reached;

(b) explains why it has reached those conclusions; and

(c) makes any recommendations for action in consequence of those conclusions as it considers appropriate.

(8) The Council, when conducting and reporting on a review, must have regard to the importance of ensuring that public funds provided for fundable further education and fundable higher education are used as economically, efficiently and effectively as possible.]

Textual Amendments

F62 S. 14A inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 17, 23(2); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(1))

15 Efficiency studies S

(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 fundable body.

(2) The governing body of a fundable body must—

(a) provide any person promoting or carrying out 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.

Commencement Information

I15 S. 15 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

16 Council's right to address meetings S

Where the Council is concerned about any matters relating to the financial support which a fundable body receives (or might receive) from the Council, a member of the Council is entitled to—

(a) attend any meeting of the governing body of the fundable body; and

(b) address the meeting on those matters.

Commencement Information

I16 S. 16 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

17 Advisory functions S

(1) The Council must provide the Scottish Ministers with such information, advice and assistance relating to the—

(a) provision and funding of fundable further education and fundable higher education; and

(b) undertaking of research at bodies which provide fundable further education or fundable higher 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.

Commencement Information

I17 S. 17 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

18 Functions regarding certain property S

(1) The functions of the Scottish Ministers as respects the property to which this subsection applies are exercisable by the Council on their behalf to such extent and in such manner as the Scottish Ministers may require.

(2) Subsection (1) applies to any land or other property—

(a) which is or was used or held for the purposes of a fundable body [F63 or of any of a regional strategic body's colleges]; and

(b) in respect of which the Scottish Ministers—

(i) are entitled to any right or interest; or

(ii) would be so entitled on the occurrence of any event.

Textual Amendments

F63 Words in s. 18(2)(a) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(13); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I18 S. 18 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

19 Administration of certain support S

(1) After section 73 (power of Scottish Ministers to make grants to education authorities and others) of the 1980 Act there is inserted—

“73ZA Administration of certain sums

(1) The Scottish Ministers may direct—

(a) the Scottish Further and Higher Education Funding Council; or

(b) any other body or person,

to administer any sums applied by the Scottish Ministers for a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act.

(2) A body or person to whom a direction is given under subsection (1) above shall administer those sums—

(a) in such manner and to such extent; and

(b) subject to such conditions,

as the Scottish Ministers may in the direction specify.

(3) The reference in subsection (1) above to a purpose referred to in paragraph (a), (c) or (f) of section 73 of this Act is a reference to that purpose only in so far as relating to support for persons—

(a) undertaking; or

(b) who have undertaken,

courses of education provided by fundable bodies.

(4) In subsection (3) above, “fundable bodies” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6).”.

(2) In section 73A (transfer or delegation of functions relating to student support) of that Act—

(a) in subsection (3), for the words “73(f)” there is substituted “ 73(a), (c) or (f) ”;

(b) in subsection (6)(a)(i)—

(i) after the word “making” there is inserted “ payments, ”; and

(ii) for the words “73(f)” there is substituted “ 73(a), (c) or (f) ”; and

(c) after subsection (9) there is added—

“(10) The references in subsections (3) and (6)(a)(i) above to regulations under section 73(a) or (c) of this Act are references to those regulations only in so far as relating to support for persons—

(a) undertaking; or

(b) who have undertaken,

courses of education provided by fundable bodies.

(11) In subsection (10) above, “fundable bodies” shall be construed in accordance with the Further and Higher Education (Scotland) Act 2005 (asp 6).”.

Commencement Information

I19 S. 19 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F64 19A Reviews of progress with widening access S

(1) The Council must conduct reviews of the extent to which progress is being made in enabling, encouraging and improving participation in fundable further education and fundable higher education by persons belonging to socio-economic groups which the Council reasonably considers to be under-represented in such education.

(2) The first such review must be completed before the end of the period of three years beginning with the date on which this section comes into force.

(3) Subsequent reviews must be completed before the end of the period of three years beginning with the date on which the immediately preceding review was completed.

(4) On completing a review, the Council must provide the persons mentioned in subsection (5) with a report of the review which—

(a) sets out the conclusions it has reached;

(b) explains why it has reached those conclusions; and

(c) makes any recommendations for action in consequence of those conclusions as it considers appropriate.

(5) Those persons are—

(a) the Scottish Ministers;

(b) each regional strategic body; and

(c) each post-16 education body.

(6) The bodies to which this subsection applies must provide the Council with such information, and make available such accounts and other documents, as the Council may reasonably require for the purposes of conducting a review.

(7) Subsection (6) applies to—

(a) post-16 education bodies; and

(b) regional strategic bodies.

(8) For the purposes of subsection (1), a socio-economic group is to be treated as under-represented in fundable further education or fundable higher education if participation in such education by persons in that group is disproportionately low.

(9) The Council may take into account any social or economic characteristics which they consider appropriate when determining which groups are to constitute “ socio-economic groups ” for the purposes of subsection (1).

(10) The Council must consult the Scottish Ministers before determining—

(a) which groups are to constitute “ socio-economic groups ” for the purposes of subsection (1); and

(b) whether a socio-economic group so determined is under-represented in fundable further education or fundable higher education.]

Textual Amendments

F64 S. 19A inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 16, 23(2); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(1))

The Council: exercise of functions S

20 Council to have regard to particular matters S

(1) In exercising its functions, the Council is to have regard to—

(a) skills needs in Scotland;

(b) issues affecting the economy of Scotland; and

(c) social and cultural issues in Scotland.

(2) In exercising its functions, the Council is to—

(a) have regard to the desirability of the achieving of sustainable development; and

(b) in particular, encourage the fundable bodies to contribute (so far as reasonably practicable for them to do so) to the achievement of sustainable development.

(3) In exercising its functions, the Council is to have regard to the—

(a) United Kingdom context; and

(b) international context,

in which any of the [F65 post-16 education] bodies may carry on their activities.

(4) In exercising its functions, the Council is to have regard to the educational and related needs (including support needs) of persons who are, and the likely educational and related needs (including support needs) of persons who might wish to become, students of any of the [F66 post-16 education] bodies.

[F67 (4A) In exercising its functions, the Council is to—

(a) have regard to the desirability of enabling, encouraging and improving participation in fundable further education and fundable higher education by persons belonging to any socio-economic group which the Council reasonably considers to be under-represented in such education; and

(b) in particular, promote collaboration and sharing of good practice between the persons mentioned in subsection (4B) in relation to enabling, encouraging and improving such participation.

(4B) Those persons are—

(a) post-16 education bodies;

(b) regional strategic bodies; and

(c) post-16 education bodies and regional strategic bodies.]

(5) For the purposes of subsection (1)(a), “skills needs” means any requirement or desirability for skills or knowledge which, following consultation with the Scottish Ministers, 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 fundable further education or fundable higher education.

(6) For the purposes of subsection (1)(b) and (c), “issues” means issues which, following consultation with the Scottish Ministers, appear 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 fundable further education or fundable higher education.

[F68 (7) For the purposes of subsection (4A), a socio-economic group is to be treated as under-represented in fundable further education or fundable higher education if participation in such education by persons in that group is disproportionately low.

(8) The Council may take into account any social or economic characteristics which they consider appropriate when determining which groups are to constitute “ socio-economic groups ” for the purposes of subsection (4A).

(9) The Council must consult the Scottish Ministers before determining—

(a) which groups are to constitute “ socio-economic groups ” for the purposes of subsection (4A); and

(b) whether a socio-economic group so determined is under-represented in fundable further education or fundable higher education.]

[F69 (10) The Council is to inform each regional college and each regional strategic body of—

(a) the needs and issues in relation to Scotland identified by the Council for the purposes of subsection (1); and

(b) the under-represented socio-economic groups identified by the Council for the purposes of subsection (4A).]

Textual Amendments

F65 Words in s. 20(3) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(14)(a); S.S.I. 2014/21, art. 2, Sch. 1

F66 Words in s. 20(4) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(14)(b); S.S.I. 2014/21, art. 2, Sch. 1

F67 S. 20(4A)(4B) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 15(2), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F68 S. 20(7)-(9) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 15(3), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

F69 S. 20(10) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(14)(c); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I20 S. 20 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

21 Equal opportunities S

(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).

Commencement Information

I21 S. 21 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

22 Consultation and collaboration S

(1) The Council must, in the exercise of its functions—

(a) where it considers it appropriate to do so, consult any or all of the persons referred to in subsection (5); and

(b) so far as is consistent with the proper exercise of its functions, seek to secure the collaboration with the Council of those persons.

(2) The Council must, where it considers it appropriate to do so in the exercise of its functions, consult––

(a) a trade union which appears to it to be representative of staff of [F70 post-16 education bodies and regional strategic bodies;

(aa) any body which appears to the Council to be representative of trade unions in Scotland; or]

(b) a body of persons which appears to it to be representative of students of the [F71 post-16 education bodies generally].

(3) Any particular requirement for consultation imposed on the Council by virtue of this Act is without prejudice to subsections (1)(a) and (2).

(4) The persons referred to in subsection (5) 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.

(5) The persons are—

(a) any local authority;

(b) the governing body of any fundable body;

(c) the governing body of any other body which provides fundable further education or fundable higher education;

(d) the Scottish Qualifications Authority;

(e) Scottish Enterprise;

(f) Highlands and Islands Enterprise; [F72 ; and

(fa) The Skills Development Scotland Co. Limited; ]

F73 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F73 (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F73 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F74 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The Scottish Ministers may by order modify [F75 subsection (5)].

(8) The Council must, in relation to the provision of fundable further education and fundable higher education, [F76 —

(a) promote collaboration between post-16 education bodies; and

(b) promote such collaboration between post-16 education bodies and regional strategic bodies as it considers appropriate.]

Textual Amendments

F70 S. 22(2)(aa) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(a)(i); S.S.I. 2014/21, art. 2, Sch. 1

F71 Words in s. 22(2)(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F72 S. 22(5)(fa) and preceding word inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(b)(i); S.S.I. 2014/21, art. 2, Sch. 1

F73 S. 22(5)(g)-(i) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(b)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F74 S. 22(6) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(c); S.S.I. 2014/21, art. 2, Sch. 1

F75 Words in s. 22(7) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(d); S.S.I. 2014/21, art. 2, Sch. 1

F76 S. 22(8)(a)(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(15)(e); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I22 S. 22 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

23 General powers S

(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 exercise 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––

(a) give any guarantee or indemnity over or in respect of any property; or

(b) create any trust or security over or in respect of any property,

without the written consent of the Scottish Ministers.

(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 (3) or (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) Subsection (4) applies to any property of the Council which has been acquired, improved or maintained wholly or partly, or directly or indirectly, out of—

(a) funds provided by the Scottish Ministers under section 9 or 10; or

(b) the proceeds of, or any consideration for, the disposal of any property so acquired, improved or maintained.

Commencement Information

I23 S. 23 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F77 Regional colleges: functions S

Textual Amendments

F77 Ss. 23A-23D and cross-heading inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 5(2), 23(2); S.S.I. 2014/21, art. 2, Sch. 1

23A Regional colleges: general duty S

(1) It is the duty of a regional college to exercise its functions with a view to securing the coherent provision of a high quality of fundable further education and fundable higher education in the locality of the regional college.

(2) In doing so, the regional college must have regard to any fundable further education and fundable higher education provided by other post-16 education bodies in the locality of the regional college.

23B Regional colleges: planning, consultation and collaboration S

(1) A regional college must plan for—

(a) how it proposes to provide fundable further education and fundable higher education; and

(b) how it intends to exercise its other functions.

(2) When making plans, a regional college must have regard to the importance of ensuring that funds made available to it under section 12 are used as economically, efficiently and effectively as possible.

(3) A regional college must, where it considers it appropriate to do so in the exercise of its functions, consult—

(a) the representatives of any trade union which it recognises or which otherwise appears to it to be representative of its staff;

(b) its students' association;

(c) the local authority for the area in which the regional college is situated;

(d) the governing body of any other post-16 education body which provides fundable further education or fundable higher education in the locality of the regional college;

(e) any other regional college or regional strategic body whom it considers likely to have an interest in the matter concerned;

(f) any person who appears to it to be representative of employers in the locality of the regional college;

(g) any person who appears to it to be representative of the interests of any sector for which the regional college provides specialist education or training;

(h) The Open University;

(i) The Skills Development Scotland Co. Limited;

(j) the Scottish Qualifications Authority; and

(k) Scottish Enterprise or Highlands and Islands Enterprise (as appropriate).

(4) Any particular requirement for consultation imposed on a regional college by virtue of this or any other enactment is without prejudice to subsection (3).

(5) A regional college must, so far as is consistent with the proper exercise of its functions, seek to secure the collaboration with the regional college of the following persons—

(a) the representatives of any trade union which the regional college recognises or which otherwise appears to it to be representative of its staff;

(b) the regional college's students' association;

(c) the local authority for the area in which the regional college is situated;

(d) the governing body of any other post-16 education body which provides fundable further education or fundable higher education in the locality of the regional college;

(e) any other regional college or regional strategic body whom it considers it appropriate to collaborate with;

(f) The Open University;

(g) The Skills Development Scotland Co. Limited;

(h) the Scottish Qualifications Authority; and

(i) Scottish Enterprise or Highlands and Islands Enterprise (as appropriate).

(6) The Scottish Ministers may by order modify subsection (3) or (5) by—

(a) adding or removing persons, or types of persons, to which those provisions apply; or

(b) varying the description of any such person or type of person.

(7) But such an order may not modify paragraph (a) or (b) of subsection (3).

23C Regional colleges: improvement of economic and social well-being S

(1) A regional college is to exercise its functions with a view to improving the economic and social well-being of the locality of the regional college.

(2) In doing so, the regional college is to have regard to—

(a) social and economic regeneration needs in the locality; and

(b) social cohesion and social inclusion issues in the locality.

(3) For the purposes of subsection (2)(a), “ needs ” means needs which appear to the regional college—

(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 fundable further education or fundable higher education.

(4) For the purposes of subsection (2)(b), “ issues ” means issues which appear to the regional college—

(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 fundable further education or fundable higher education.

23D Regional college to have regard to particular matters S

(1) In exercising its functions, a regional college is to have regard to—

(a) skills needs in the locality of the regional college;

(b) issues affecting the economy of the locality of the regional college;

(c) social and cultural issues in the locality of the regional college; and

(d) the needs and issues in relation to Scotland identified by the Council for the purposes of section 20(1).

(2) In exercising its functions, a regional college is to have regard to the desirability of the achieving of sustainable development.

(3) In exercising its functions, a regional college is to have regard to the—

(a) United Kingdom context; and

(b) international context,

in which it carries on its activities.

(4) In exercising its functions, a regional college is to have regard to the educational and related needs (including support needs) of persons who are, and the likely educational and related needs (including support needs) of persons who might wish to become, students of the college.

(5) In exercising its functions, a regional college is to have regard to the desirability of enabling, encouraging and improving participation in fundable further education and fundable higher education by persons belonging to any socio-economic group which the regional college reasonably considers to be under-represented in such education.

(6) For the purposes of subsection (1)(a), “ skills needs ” means any requirement or desirability for skills or knowledge which appears to the regional college—

(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 fundable further education or fundable higher education.

(7) For the purposes of subsection (1)(b) and (c), “ issues ” means issues which appear to the regional college—

(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 fundable further education or fundable higher education.

(8) For the purposes of subsection (5), a socio-economic group is to be treated as under-represented in fundable further education or fundable higher education if participation in such education by persons in that group is disproportionately low.

(9) A regional college may take into account any social or economic characteristics which it considers appropriate when determining which groups are to constitute “ socio-economic groups ” for the purposes of subsection (5).

(10) A regional college is to have regard to the under-represented socio-economic groups identified by the Council for the purposes of section 20(4A) when determining—

(a) which groups are to constitute “ socio-economic groups ” for the purposes of subsection (5); and

(b) whether a socio-economic group so determined is under-represented in fundable further education or fundable higher education.]

[F78 Regional boards: constitution etc. S

Textual Amendments

F78 S. 23P and cross-heading inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 11(1), 23(2); S.S.I. 2014/79, art. 2(1), Sch. 1

23P Regional boards: constitution S

Schedule 2B makes provision about the constitution of a regional board, about the general powers of such a board and about certain administrative and other matters with respect to such a board.]

[F79 23Q Mismanagement by regional boards S

(1) This section applies where it appears to the Scottish Ministers that a regional board—

(a) has committed or is committing—

(i) a serious breach of any term or condition of a grant made to it under section 12(1)(c); or

(ii) repeated breaches of such terms or conditions;

(b) has failed or is failing—

(i) properly to discharge its responsibility for administering the funds made available to it under that section in respect of its colleges; or

(ii) to discharge any of its duties properly; or

(c) has mismanaged, or is mismanaging, its financial or other affairs.

(2) Where this section applies, the Scottish Ministers may by order—

(a) remove any or all of the members of the regional board; and

(b) where a removed member was appointed under paragraph 3(2)(a) or (f) of schedule 2B, appoint another person in place of the removed member.

(3) Before making an order under subsection (2)(a), the Scottish Ministers must consult the Council.

(4) The Scottish Ministers must give notice of exercise of the power of removal conferred by subsection (2)(a) to the board and the member.

(5) An appointment made under subsection (2)(b) has effect as if made under the provision of paragraph 3 of schedule 2B under which the removed member was appointed.]

Textual Amendments

F79 S. 23Q inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 12, 23(2); S.S.I. 2014/79, art. 2(1), Sch. 1

[F80 23R Establishment and abolition of regional boards: supplemental S

(1) The Scottish Ministers may make such arrangements as they consider appropriate in anticipation of the establishment of a regional board by virtue of an order under section 7B or the coming into force of section 8 of the Post-16 Education (Scotland) Act 2013.

(2) They may, in particular, appoint on terms and conditions determined by them persons who are, from the day on which the board is established, to hold office as if appointed under paragraph 3(2)(a) or, as the case may be, (f) of schedule 2B.

(3) An order under section 7B(2)(a) which abolishes a regional board may, in particular, make provision—

(a) for the transfer of the regional board's staff, property, rights, liabilities or obligations to such other person as may be specified in the order;

(b) for the Scottish Ministers to pay any expenses incurred in connection with the abolition;

(c) imposing such duties or conferring such additional powers in relation to the abolition as the Scottish Ministers consider appropriate;

(d) for the exercise of any of the regional board's functions by any member of the board specified in the order;

(e) appointing a person to administer the abolition (and giving that person such powers and duties as appear to the Scottish Ministers to be necessary or expedient for such purposes as are specified in the order).

(4) Such an order—

(a) must ensure that any transferred property and rights which, before the transfer, were to be applied for the purpose of the advancement of education are to continue to be applied for that purpose after the transfer;

(b) may contain provision for the transfer of staff, property, rights, liabilities or obligations only if the person to whom the transfer is being made (apart from the Scottish Ministers) has consented to the transfer.

(5) This section does not prejudice the generality of powers conferred by section 34(2) or by section 22 of the Post-16 Education (Scotland) Act 2013.]

Textual Amendments

F80 S. 23R inserted (10.10.2013 for specified purposes, 3.3.2014 in so far as not already in force) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 13, 23(2); S.S.I. 2013/281, art. 2, Sch.; S.S.I. 2014/21, art. 2, Sch. 1

The Scottish Ministers: requirements and directions S

24 Requirements as to Council's functions S

(1) The Scottish Ministers may by order impose requirements on the Council as regards the exercise of its functions.

(2) But requirements imposed under this section may not relate to the Council's functions under section 7[F81 , 14A] or 17.

(3) Requirements imposed 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 [F82 post-16 education body or to a particular regional strategic body].

Textual Amendments

F81 Word in s. 24(2) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(16)(a); S.S.I. 2014/21, art. 2, Sch. 1

F82 Words in s. 24(3) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(16)(b); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I24 S. 24 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

25 Directions where financial mismanagement S

(1) The Scottish Ministers are, if it appears to them that the financial affairs of a [F83 post-16 education body or regional strategic] body 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 F84 ... body as they consider are necessary or expedient by reason of the mismanagement.

[F85 (1A) A direction made under subsection (1) in relation to any of a regional strategic body's colleges may, in particular, require the Council to provide such financial support to the regional strategic body as may be specified in the direction (subject to such terms and conditions as may be so specified).]

(2) Before giving directions under this section, the Scottish Ministers must consult[F86 —

(a) the Council;

(b) the body to which the direction relates; and

(c) where that body is assigned to a regional strategic body by an order made under section 7C(1), the regional strategic body].

(3) The Council must comply with directions given to it under this section.

Textual Amendments

F83 Words in s. 25(1) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(17)(a)(i); S.S.I. 2014/21, art. 2, Sch. 1

F84 Word in s. 25(1) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(17)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F85 S. 25(1A) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(17)(b); S.S.I. 2014/21, art. 2, Sch. 1

F86 Words in s. 25(2) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(17)(c); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I25 S. 25 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F87 25A Provision of information S

(1) A person mentioned in subsection (2) must provide the Scottish Ministers with such information as they may reasonably require for the purposes of or in connection with the exercise of any of their functions under this Act.

(2) Those persons are—

(a) a regional strategic body; or

(b) a college of further education which is—

(i) a regional college; or

(ii) assigned to a regional strategic body by order made under section 7C(1).]

Textual Amendments

F87 S. 25A inserted (3.3.2014 for specified purposes, 1.5.2014 in so far as not already in force) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(18); S.S.I. 2014/21, art. 2, Sch. 1; S.S.I. 2014/79, art. 2(1), Sch. 1

Fundable bodies: miscellaneous S

26 Academic freedom S

(1) A [F88 post-16 education] body must have regard to the desirability of—

(a) ensuring the academic freedom of relevant persons; and

(b) ensuring that the matters mentioned in subsection (2) are not adversely affected by the exercise of a relevant person's academic freedom.

(2) Those matters are—

(a) the appointment held; and

(b) any entitlements or privileges enjoyed,

by the relevant person at the [F89 post-16 education] body.

(3) In this section, a “relevant person” is a person who is engaged in—

(a) teaching, or the provision of learning, at a [F90 post-16 education] body; or

(b) research at a [F91 post-16 education] body.

(4) For the purposes of this section, “academic freedom” includes freedom (within the law) to—

(a) hold and express opinion;

(b) question and test established ideas and received wisdom; and

(c) present controversial or unpopular points of view.

Textual Amendments

F88 Words in s. 26(1) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(19)(a); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(3)(4))

F89 Words in s. 26(2) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(19)(b); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(3)(4))

F90 Words in s. 26(3)(a) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(19)(c); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(3)(4))

F91 Words in s. 26(3)(b) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(19)(c); S.S.I. 2014/21, art. 2, Sch. 1 (with art. 3(3)(4))

Commencement Information

I26 S. 26 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

[F92 26A Equal opportunities: post-16 education bodies etc. S

(1) Every post-16 education body and regional strategic body must, when making appointments to its governing body or exercising any of its other functions, do so in a manner which encourages equal opportunities and in particular the observance of the equal opportunities 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. ]

Textual Amendments

F92 S. 26A inserted (3.3.2014 for specified purposes, 1.5.2014 in so far as not already in force) by Post-16 Education (Scotland) Act 2013 (asp 12), ss. 19, 23(2); S.S.I. 2014/21, art. 2, Sch. 1; S.S.I. 2014/79, art. 2(1), Sch. 1

27 Remit of the Scottish Public Services Ombudsman S

(1) In section 3 (persons liable to be investigated) of the Scottish Public Services Ombudsman Act 2002 (asp 11)—

(a) in subsection (1), for the words “and 2” there is substituted “ , 2 and 3 ”; and

(b) after subsection (6) there is added—

“(7) Her Majesty may by Order in Council amend Part 3 of schedule 2 so as to—

(a) modify any entry in it,

(b) remove any entry from it, or

(c) add to it any entry relating to a person, or class of persons, providing fundable further education or fundable higher education (within the meaning of the Further and Higher Education (Scotland) Act 2005 (asp 6)).

(8) An Order in Council under subsection (7) adding an entry to that Part of that schedule relating to a person, or class of persons, whose business (whether commercial, charitable or otherwise) includes matters other than the activities which fundable bodies (within the meaning of that Act) generally carry on—

(a) must, as regards that person or class, provide for this Act to apply only in relation to those activities; and

(b) may do so subject to such modifications or exceptions as may be specified in the Order in Council.

(9) No recommendation to make an Order in Council under subsection (7)(c) is to be made to Her Majesty unless every person to whom the Order relates has been consulted.”.

(2) In section 24 (Orders in Council: general) of that Act, in subsection (2) after the words “3(2)” there is inserted “ or (7) ”.

(3) In schedule 2 (listed authorities) of that Act, after Part 2, there is added—

“Part 3 S Other entries amendable by Order in Council

Further and Higher Education

92 (1) Any fundable body within the meaning of the Further and Higher Education (Scotland) Act 2005 (asp 6).

(2) Sub-paragraph (1) does not include the Open University (so far as it is a fundable body).

93 The Scottish Agricultural College.”.

(4) In schedule 4 (matters which the Ombudsman must not investigate) of that Act, after paragraph 10, there is inserted—

“10A Action taken by or on behalf of any body falling within Part 3 of schedule 2 in the exercise of academic judgement relating to an educational or training matter.”.

Commencement Information

I27 S. 27 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

28 Inspection of accounts S

(1) The Auditor General for Scotland may, at any reasonable time, inspect the accounts and accounting records of any fundable body [F93 or of any of a regional strategic body's colleges].

(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 [F94 or, as the case may be, by a regional strategic body under section 12B].

Textual Amendments

F93 Words in s. 28(1) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(20)(a); S.S.I. 2014/21, art. 2, Sch. 1

F94 Words in s. 28(3) inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(20)(b); S.S.I. 2014/79, art. 2(1), Sch. 1

Commencement Information

I28 S. 28 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

29 Educational use of certain property S

(1) In section 25 (closure of colleges and dissolution of boards of management) of the 1992 Act—

(a) after subsection (1) there is inserted—

“(1A) An order made for the purpose mentioned in subsection (1)(a) above—

(a) shall include provision for the property and rights of the board of management to transfer to and vest in a charity; and

(b) may include provision for the liabilities and obligations of the board of management to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.

(1B) An order made for the purpose mentioned in subsection (1)(b) above may include provision—

(a) for the property and rights of the board of management to transfer to and vest in a charity; and

(b) for the liabilities and obligations of the board of management to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.”;

(b) in subsection (2), paragraph (a) is repealed;

(c) in subsection (7), for the words from “under” to “sub-paragraph” in the second place where it occurs there is substituted “ as mentioned in subsection (1A) or (1B) above shall not contain provision for transferring and vesting property, rights, liabilities or obligations unless the body or person to whom the transfer is being made (apart from the Scottish Ministers) ”; and

(d) after subsection (7) there is added—

“(8) All property and rights vested in a charity by virtue of an order as mentioned in subsection (1A) or (1B) above shall be applied for the purpose of the advancement of education.

(9) In this section, a “charity” means a body entered in the Scottish Charity Register.”.

(2) In section 47 (closure of institutions) of that Act—

(a) after subsection (1) there is inserted—

“(1A) An order under subsection (1) above—

(a) shall include provision for the property and rights of the institution to transfer to and vest in a charity; and

(b) may include provision for the liabilities and obligations of the institution to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.”;

(b) in subsection (2), paragraph (a) is repealed; and

(c) after subsection (7) there is added—

“(8) An order as mentioned in subsection (1A) above shall not contain provision for transferring and vesting property, rights, liabilities or obligations unless the body or person to whom the transfer is being made (apart from the Scottish Ministers) has consented to the transfer and vesting.

(9) All property and rights vested in a charity by virtue of an order as mentioned in subsection (1A) above shall be applied for the purpose of the advancement of education.

(10) In this section, a “charity” means a body entered in the Scottish Charity Register.”.

Commencement Information

I29 S. 29 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

30 Change of name by certain bodies S

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.”.

Commencement Information

I30 S. 30 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

31 Information about recorded children S

A [F95 post-16 education] body 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.

Textual Amendments

F95 Words in s. 31 substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(21); S.S.I. 2014/21, art. 2, Sch. 1

Commencement Information

I31 S. 31 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

Part 2 S General

32 Amendment of enactments S

Schedule 3 amends enactments for the purposes of and in consequence of this Act.

Commencement Information

I32 S. 32 in force at 3.10.2005 by S.S.I. 2005/419, art. 2(1)

33 Ancillary provision S

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.

34 Orders and regulations S

(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 an order or regulations under this Act, apart from an order under section 36(2), is (except where subsection (4) applies) subject to annulment in pursuance of a resolution of the Parliament.

(4) A statutory instrument containing—

(a) regulations under section 7(2)(i);

(b) an order under section 5(6), [F96 7(4)] or 9(6) or (7); F97 ...

[F98 (ba) an order under section 7(1) (other than an order which is made only in consequence of a body changing its name or being closed);

(bb) an order under section 7B(2)(a) which establishes a regional board;

(bc) an order under section 7B(2)(b) which adds or removes an entry (but not including an order which removes an entry relating to a body which has been closed, wound up or has otherwise ceased to exist);

(bd) an order under section 7C(1) for which a proposal or approval under section 7C(2) is required;

(be) an order under section 9D(2) (other than an order which does no more than increase the amount specified in a previous order by an amount that is no greater than the amount which the Scottish Ministers, having had regard to any retail price index, consider is required in order to maintain the value of the previously specified amount in real terms);

(bf) an order under section 23O(11);]

(c) an order under section 33 which amends an Act[F99 ; or

(ca) an order under paragraph 18 of schedule 2B (other than an order which does no more than vary the minimum number of members of a regional board or vary the maximum number of members which may be appointed in pursuance of paragraph 3(2)(f)),]

is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.

Textual Amendments

F96 Word in s. 34(4)(b) substituted (10.10.2013) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(22)(a); S.S.I. 2013/281, art. 2, Sch.

F97 Word in s. 34(4) omitted (10.10.2013) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(22)(b); S.S.I. 2013/281, art. 2, Sch.

F98 S. 34(4)(ba)-(bf) inserted (10.10.2013 for specified purposes, 3.3.2014 for specified purposes) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(22)(c); S.S.I. 2013/281, art. 2, Sch.; S.S.I. 2014/21, art. 2, Sch. 1

F99 S. 34(4)(ca) and preceding word inserted (1.5.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(22)(d); S.S.I. 2014/79, art. 2(1), Sch. 1

35 Interpretation S

(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);

• [F100 college of further education ” means the governing body of a body—

  (a)

  by which fundable further education or fundable higher education is provided; and

  (b)

  which is not a higher education institution;]

• “the Council” means the Scottish Further and Higher Education Funding Council;

• “fundable body” is to be construed in accordance with section 6(2);

• “fundable further education” is to be construed in accordance with section 5(1) and (2);

• “fundable higher education” is to be construed in accordance with section 5(3);

• [F101 “ fundable post-16 education body ” is to be construed in accordance with section [F102 6(1)];

• “ higher education institution ” means an institution which is—

  (a)

  a university; or

  (b)

  a designated institution (within the meaning of section 44(2) of the 1992 Act);]

• “ 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.

• [F103 “ post-16 education body ” means—

  (a)

  any fundable post-16 education body; and

  (b)

  any college of further education assigned to a regional strategic body by order made under section 7C(1);

• “ recognised ”, in relation to a trade union, has the meaning given by section 178(3) of the Trade Union and Labour Relations (Consolidation) Act 1992;

• “ regional board ” is to be construed in accordance with section 7B(1)(b);

• “ regional college ” means a college of further education designated as a regional college by order made under section 7A(1);

• “ regional strategic body ” is to be construed in accordance with section 7B(1)(a); ]

(2) In this Act, any reference to the governing body of a F104 ... body means—

(a) in the case of a F104 ... body conducted by a body corporate, that body corporate;

(b) in the case of a F104 ... body not falling within paragraph (a), the executive body which has responsibility for the management and administration of the revenue and property of the F104 ... body and the conduct of its affairs;

(c) in the case of any other F104 ... body 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 F104 ... body or any person responsible for the management of the F104 ... body, whether or not formally constituted as a governing body or board of governors.

[F105 (3) In this Act—

(a) any reference to the locality of a college of further education is a reference to any locality in which the college provides fundable further education or fundable higher education (other than by way of distance or open learning); and

(b) any reference (other than in sections 23A and 23E) to the locality in which fundable further education or fundable further education is provided does not include reference to any such education which is provided by way of distance or open learning.]

Textual Amendments

F100 Words in s. 35(1) inserted (13.1.2014) by Post-16 Education (Scotland) Act 2013 (asp 12) , s. 23(2) , Sch. para. 8(23)(a)(i) ; S.S.I. 2013/348 , art. 2 , Sch.

F101 Words in s. 35(1) inserted (13.1.2014 for specified purposes) by Post-16 Education (Scotland) Act 2013 (asp 12) , s. 23(2) , Sch. para. 8(23)(a)(iii) ; S.S.I. 2013/348 , art. 2 , Sch.

F102 Word in s. 35(1) substituted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(23)(a)(ii); S.S.I. 2014/21, art. 2, Sch. 1

F103 Words in s. 35(1) inserted (13.1.2014 for specified purposes) by Post-16 Education (Scotland) Act 2013 (asp 12) , s. 23(2) , Sch. para. 8(23)(a)(iv) ; S.S.I. 2013/348 , art. 2 , Sch.

F104 Word in s. 35(2) omitted (3.3.2014) by virtue of Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(23)(b); S.S.I. 2014/21, art. 2, Sch. 1

F105 S. 35(3) inserted (3.3.2014) by Post-16 Education (Scotland) Act 2013 (asp 12), s. 23(2), Sch. para. 8(23)(c); S.S.I. 2014/21, art. 2, Sch. 1

36 Short title and commencement S

(1) This Act may be cited as the Further and Higher Education (Scotland) Act 2005.

(2) This Act, except sections 33 to 35 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.