Part 7: Miscellaneous and General
Higher education corporations
Section 137: Instruments of government of higher education corporations in Wales
420.Section 137 amends section 124A of the Education Reform Act 1988 (“
421.The Privy Council has certain functions, under section 124A(2) and (3) of the 1988 Act to prescribe, make or modify the instruments of government of higher education corporations.
422.Instruments of government must comply (among other things) with Schedule 7A to the 1988 Act. Schedule 7A sets out statutory requirements for the content of instruments of government of higher education corporations made by the Privy Council.
423.Under section 124A(9) of the 1988 Act, the Welsh Ministers(2) are able to amend or repeal any of paragraphs 3 to 5 and 11 of Schedule 7A by order. These paragraphs relate to membership of the higher education corporation and in particular the size, constitution and appointment of members of the corporation.
424.Subsection (2) of section 137 of the Act makes provision for the Welsh Ministers’ existing order-making powers under section 124A(9) of the 1988 Act to be extended. The extended power allows the Welsh Ministers to amend or repeal the whole of Schedule 7A to the 1988 Act with the exception of paragraph 1. Paragraph 1 enables a higher education corporation’s instrument of government to empower the corporation to change its name with the consent of the Privy Council. The additional paragraphs of Schedule 7A covered by the extended power relate to tenure of office for members, officers and committees of the corporation, allowances paid to the members and the seal of the corporation.
425.Subsection (3) inserts a new subsection (9A) into section 124A of the 1988 Act which requires the Welsh Ministers to consult with the Commission and any other persons they think appropriate before exercising the extended order-making powers. It also inserts a new subsection (9B) which makes provision for such an order made by the Welsh Ministers to make consequential amendments or repeals to certain specified provisions in the 1988 Act if those are necessary as a result of any amendments or repeals made under the order-making power to Schedule 7A.
Section 138: Articles of government of higher education corporations in Wales
426.Section 125 of the 1988 Act requires an institution conducted by a higher education corporation to have articles of government, approved by the Privy Council, relating to the conduct of the institution. Section 126 of that Act also makes provision relating to the content of the articles of government together with its amendment and revocation.
427.Subsection (2) of section 138 of the Act inserts new subsections (8) and (9) into section 125 of the 1988 Act enabling the Welsh Ministers, by order, to amend or repeal section 125(2) to (4) of the 1988 Act, which relate to certain content of articles of government of higher education corporations.
428.Among other things, section 125(2) to (4) of the 1988 Act make provision for the articles to determine the distribution of functions between the board of governors, the principal of the institution and the academic board and regulate the constitution and functions of committees of the corporation. Those provisions also require the articles to make provision in respect of the procedures for meetings of the board of governors, the academic board, the corporation’s committees and for the appointment of members of the corporation. In addition, they enable the articles to make provision authorising the board of governors to make rules or bye-laws for the government and conduct of the institution.
429.The new subsection (9) will place the Welsh Ministers under a duty to consult with the Commission and any other persons they think appropriate before exercising the new order-making powers.
430.Subsection (3) amends section 232 of the 1988 Act.
431.The amendment to section 232 of the 1988 Act (orders and regulations) is to ensure that subsection (1) of that section (which requires orders and regulations under the 1988 Act to be made by statutory instrument) catches the new powers of the Welsh Ministers to make orders conferred by sections 137 and 138 of the Act.
432.Subsections (4ZA), (4ZB) and (4ZC), which will be inserted into section 232 of the 1988 Act by section 138(3)(b) of the Act, make provision relating to the Senedd procedure attached to the order and regulation making powers of the Welsh Ministers under the 1998 Act, as inserted by this Act.
Section 139: Dissolution of higher education corporations in Wales
433.This section amends section 128 of the 1988 Act which relates to the dissolution of higher education corporations.
434.Section 128(2) as amended contains a power for the Welsh Ministers by order to provide for the dissolution of a higher education corporation in Wales and the transfer of its property, rights and liabilities to any one or more of the following—
any person appearing to the Welsh Ministers to be wholly or mainly engaged in the provision of educational facilities or services of any description;
any body corporate established for purposes which include the provision of such facilities or services;
the Commission;
the Welsh Ministers.
435.The Welsh Ministers may only make an order under section 128(2) of the 1988 Act if the higher education corporation to be dissolved has requested an order be made, or has consented to an order being made. An order may be made without the consent of the higher education corporation, if the Welsh Ministers consider that consent has been unreasonably withheld or unreasonably delayed.
436.Section 128(4) of the 1988 Act, as amended by section 139(4) of the Act, requires the Welsh Ministers to consult the higher education corporation to be dissolved and the Commission before making an order under subsection (1).
437.Section 139 of the Act makes amendments to section 128 of the 1988 Act in consequence of the creation of the Commission, replacing references to HEFCW with references to the Commission.
438.Subsection (3) makes new provision about the power under section 128(1)(b) to make provision by order for the transfer of the property, rights and liabilities of the higher education corporation being dissolved. A new subsection (1A) is inserted into section 128 which provides that orders—
may make provision about the effect of a transfer on any right of pre-emption, right of return or other similar right that may apply in respect of such property or rights (including provision about the calculation and payment of any just compensation);
have effect in relation to property, rights or liabilities to which they apply in spite of any provision (of whatever nature) of any enactment or any rule of law, which would otherwise prevent, penalise or restrict the transfer of the property, rights or liabilities.
439.Subsection (6) inserts new subsection (7) into section 128 of the 1988 Act requiring the Welsh Ministers to publish and keep under review a statement setting out the circumstances in which they propose to exercise the power under this section to make an order. The Welsh Ministers must consult such persons as they consider appropriate before publishing the statement, or revised statement, and lay a copy before the Senedd as soon as possible after it is published.
Consultation about careers services
Section 140: Duty to consult the Commission on careers services
440.This section inserts a new section 9A after section 9 of the Employment and Training Act 1973 (“
441.The new section 9A will place Welsh Ministers under a duty to consult the Commission each year on strategic priorities for the next financial year for their performance of their duty in section 8 and the exercise of their power in section 9 of the 1973 Act. Section 8 of the 1973 Act places a duty on the Welsh Ministers to ensure the provision of careers services to pupils in schools and students in further education and training. Section 9 of the Act gives the Welsh Ministers a power to provide careers services for others.
442.For the purpose of this section financial year is defined as a period of 12 months ending on 31 March.
General
Section 141: Data Protection
443.This section clarifies that no provision made by the Act requiring, or enabling, the disclosure or use of information disapplies, in any way, existing data protection legislation.
Section 142: Publication
444.Section 142 makes provision relating to every duty under the Act (but not a duty imposed by amending another enactment) to publish something. Throughout this Act, wherever there is a duty to publish a report or plan, these must be published electronically, on the provider or organisation’s website, and be accessible free of charge.
445.The provider or organisation under the duty to publish may also chose to publish in any way they consider appropriate. Copies of the reports or plans published may be supplied free of charge, or on payment of a fee which does not exceed the cost of making the copy.
Section 143: Regulations
446.This section makes general provision about how the various regulations that may be made under the Act are to be made. This includes provision about the procedures of the Senedd that apply in relation to the regulations, and the ancillary provision (that is, supplemental, incidental, consequential, transitional, transitory or saving provision) that may be made in these regulations.
Section 144: General interpretation
447.This section defines specific terms used in this Act and is self-explanatory. In particular subsection (8) provides that tertiary education provided by or on behalf of a tertiary education provider in Wales (as defined in subsection (1)) includes education provided face-to-face, by distance learning or by a combination of those means.
Section 145: Power to provide for the Open University to be treated as a tertiary education provider in Wales
448.This section allows the Welsh Ministers to make regulations to apply the provisions under this Act to the Open University. The Open University does not fall within the definition of “tertiary education provider in Wales” because its activities do not take place “wholly or mainly in Wales”. This power in this section will allow the Welsh Ministers to treat the Open University as a tertiary education provider in Wales. This may be to apply the registration conditions; learner protection plans and other provisions to the Open University in order to ensure funding and protection for learners in Wales undertaking courses of study with the Open University.
Section 146: Power to make consequential and transitional provision etc.
449.This section provides that the Welsh Ministers may, by regulations, make such incidental, consequential, supplemental, transitional, transitory or saving provision as they think appropriate for the purpose of, or in connection with, or for giving full effect to, any provision made by or under this Act, including in relation to the provisions contained in this Act.
Section 147 and Schedule 4: Minor and consequential amendments
450.Schedule 4 (introduced by section 147) sets out the minor and consequential amendments to existing legislation as affected by the Act.
451.Where a description as to the effect of the amendment is considered helpful it is included. Where an amendment has been described elsewhere in these explanatory notes, it is not described here; similarly, minor amendments such as changes in existing legislation from “the Higher Education Funding Council for Wales” to “the Commission for Tertiary Education” are not described.
452.Paragraph 1 amends section 8(4) of the Employment and Training Act 1973. It replaces reference to an institution falling within scope of section 91(5) of the Further and Higher Education Act 1992 with reference to a tertiary education provider registered with the Commission to provide higher education, other than an institution which is also within the further education sector. It means that tertiary education providers registered with the Commission for the purpose of higher education (excluding institutions within the further education sector) are excluded from the Welsh Ministers’ duty to secure the provision of careers services for school and college students.
453.Paragraph 3 amends section 43(5)(aa) of the Education (No 2) Act 1986. It replaces “any institution other than a university within the higher education sector” with a reference to tertiary education providers registered with the Commission to provide higher education. It ensures that the duty to secure freedom of speech applies to universities, further education institutions and other tertiary education providers registered with the Commission for the purpose of providing higher education.
454.Paragraph 6, amongst other things, replaces subsections (5)(a) and (5)(aa) of section 91 of the Further and Higher Education Act 1992 with a new subsection which amends the definition of what constitutes “
455.Paragraph 13 amends the Care Standards Act 2000 so that tertiary education providers eligible for funding from the Commission for the purposes of higher education or research or innovation, and the Commission itself fall within scope of the Children’s Commissioner for Wales reviewing functions.
456.Paragraph 14(2) repeals sections 31 – 33 of the Learning and Skills Act 2000, which are the main duties on the Welsh Ministers in relation to post-16 education and training.
457.Paragraphs 14(3) to 14(17) amend sections 33A– 33E, 33G, and 33I – 33Q of that Act to give responsibility for the formation of local curricula for learners aged 16 – 19 to the Commission instead of the Welsh Ministers and make related amendments in consequence of this. The Welsh Ministers’ regulation and order-making powers and most of their guidance and direction powers related to local curricula are retained, but the amendments subject the exercise of those powers (other than the giving of directions) to a requirement to consult the Commission.
458.These amendments are as a consequence of the Commission’s responsibility for securing the provision of proper facilities for education and training for learners aged 16 to 19 (see section 93).
459.Paragraph 19 amends Schedules 2 and 3 to the Commissioner for Older People (Wales) Act 2006 so that tertiary education providers eligible for funding from the Commission for the purposes of higher education or research or innovation and the Commission itself fall within scope of the reviewing functions of the Commissioner for Older People under sections 3 and 5 of the Commission for Older People (Wales) Act 2006.
460.Paragraph 21(2) amends Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 so that inspections conducted by the Chief Inspector under the Tertiary Education and Research (Wales) Act 2022 are considered a regulated activity related to children for the purposes of the Safeguarding Vulnerable Groups Act 2006.
461.Paragraph 25(3) amends section 43 of the Learning and Skills (Wales) Measure 2009 so as to require the Welsh Ministers to consult the Commission before giving guidance to head teachers of local authority maintained schools and principals of further education institutions about the exercise of their functions in respect of the provision of a learning pathways document to relevant students.
462.Paragraph 28 amends the Welsh Language (Wales) Measure 2011 to replace the reference to the Higher Education Funding Council for Wales in Schedule 6 to the Measure with a reference to the Commission for Tertiary Education and Research.
463.Paragraph 29 makes amendments to provisions of the School Standards and Organisation (Wales) Act 2013 concerned with school reorganisations.
464.These amendments include the Commission as a body whom the Welsh Ministers must consult on the draft of the Code (or revised Code) on school organisation and places a duty on the Commission, when exercising functions under Part 3 of that Act (school organisation) to act in accordance with any relevant requirements in the Code and have regard to any relevant guidelines in it.
465.The amendments remove the automatic requirement for approval by the Welsh Ministers of school organisation proposals affecting maintained school sixth form education, instead only requiring the approval of the Welsh Ministers where an objection to the proposals has been sent, in writing, to the proposer during the objection period (28 days beginning on the day the proposals were published) and has not been withdrawn in writing within 28 days following the end of the objection period.
466.The amendments also take away the Welsh Ministers’ powers to make proposals to restructure local authority maintained school sixth form education, instead giving the Commission powers to restructure school sixth form education (new Chapter 3A of Part 3 on school organisation).
467.Those powers involve the Commission being able to direct, in certain circumstances, and in accordance with the Code, a local authority or a governing body of a foundation or voluntary school to bring forward proposals about local authority maintained school sixth form education.
468.The Commission will have power to make its own proposals following a direction by it, if the time for the local authority or governing body to make proposals has expired or they have published proposals. In the event of objections to proposals from the Commission, the matter has to be decided by the Welsh Ministers. Otherwise the Commission must determine whether they should be implemented.
469.These amendments are as a consequence of the Commission’s responsibility for securing the provision of proper facilities for education and training for learners aged 16 - 19 (see section 93).
470.Paragraph 30 amends section 162 of the Social Services and Well-being (Wales) Act 2014 which provides that a local authority must make arrangements to promote co-operation between the local authority, each of the authority’s ‘relevant partners’ and other bodies who are engaged in activities relevant to adults in need of care and support.
471.The Commission, and the Welsh Ministers, are each defined as a relevant partner to the extent they are exercising their functions under section 92, 93, 94, 95, 97 or 103(1) of the Act.
472.Paragraph 40 amends the Welsh Language Standards (No 6) Regulations 2017, replacing the reference to the Higher Education Funding Council for Wales in regulation 3(4) with the Commission for Tertiary Education and Research.
Section 148: Coming into force
473.Subsection (1) brings sections 140 to 146 of the Act into force the day after the day of Royal Assent.
474.All other provisions of the Act come into force by order made by the Welsh Ministers (subsection (1)). Subsection (3) allows orders that bring provisions into force to appoint different days for different purposes and to make transitory, transitional and saving provision in connection with bringing provisions into force.
Section 149: Short title
475.Section 149 provides that the short title of the Act is the Tertiary Education and Research (Wales) Act 2022.
476.This section also adds the Act to the list of Education Acts set out in section 578 of the Education Act 1996.
The function was originally vested in the Secretary of State but by virtue of article 2 of and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) that function was transferred in relation to Wales to the National Assembly for Wales (established under the Government of Wales Act 1998). By virtue of section 162 of and paragraph 30 of Schedule 11 to the Government of Wales Act 2006 functions of the National Assembly for Wales were transferred to the Welsh Ministers.
