The Tertiary Education and Research (Wales) Act 2022 (Commencement No. 4 and Transitory and Transitional Provisions) Order 2024

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force provisions of the Tertiary Education and Research (Wales) Act 2022 (“the Act”) and makes transitory and transitional provision in connection with the coming into force of certain provisions. This is the fifth order made by the Welsh Ministers under the Act. The previous (fourth) order provided for amendments to an earlier commencement order made by the Welsh Ministers under the Act.

Part 1 (article 1) makes provision in respect of the title and interpretation of this Order.

Part 2 (articles 2 to 13) brings provisions of the Act into force on 1 August 2024. Some provisions are brought into force in full and others are brought into force for certain purposes.

Article 2(b) brings into force section 23 of the Act which provides for the dissolution of the Higher Education Funding Council for Wales (“HEFCW”). This Order provides for the periods during which the Commission for Tertiary Education and Research (“the Commission”) will exercise, from HEFCW’s dissolution, certain of HEFCW’s functions under the Further and Higher Education Act 1992 (“the 1992 Act”) (article 18) and the Higher Education (Wales) Act 2015 (“the 2015 Act”) (articles 20 to 22).

Article 2(a) brings into force the Commission’s duties to promote research and innovation in section 6(1) of the Act. Article 4 brings into force section 6(2) which provides for the meaning of “relevant person” as referred to in section 6(1). “Relevant person” has the meaning set out in article 4(2) during the period beginning with 1 August 2024 and ending immediately before the coming into force of section 105 of the Act in full.

Article 2(c) brings into force certain functions of the Commission relating to the publication of quality assurance frameworks under section 50(1) to (3), (4)(b) and (c), (7) and (8) of the Act. Article 5 brings into force section 50(4)(a) subject to a modification that the Commission must consult each regulated institution (instead of each registered provider) before publishing, revising or withdrawing any framework during the period beginning with 1 August 2024 and ending with 31 July 2026. This modification is required because there will be no registered providers during that period. A “regulated institution” is an institution with an approved fee and access plan in force (see section 7(5)(b) of the 2015 Act) and a “registered provider” is a tertiary education provider that is registered in the register established and maintained by the Commission under section 25 of the Act (see section 144(1) of the Act).

Article 2(d) brings into force section 86(2), (3) and (7) of the Act which sets out the limitations on the terms and conditions that the Welsh Ministers may attach to funding they provide to the Commission. Article 6 brings into force section 86(1), (5) and (6) and provides for temporary modifications so that the limitations on the terms and conditions that apply pursuant to those subsections also apply in respect of the provision of funding by the Commission to a person under section 65 of the 1992 Act. The modifications apply from 1 August 2024 until section 65 of the 1992 Act is repealed. Article 7 brings section 86(4) into force subject to the modification that the reference to the Commission’s power to fund research and innovation under section 105 of the Act is to the Commission’s funding power under section 65 of the 1992 Act. This modification applies from 1 August 2024 until section 105 of the Act is brought into force in full.

Article 2(e) brings into force section 131(1), (2)(c) and (d), (4) and (5). Section 131(1) enables the Commission, by notice, to require persons listed in subsection (2) to give it information it requests for the purposes of the exercise of its functions. A local authority is listed as a person in section 131(2)(c) and the governing body of a maintained school in Wales that is providing or has arranged to provide higher education at the school is a person for the purposes of section 131(2)(d). Article 8 brings section 131(2)(a) and (b)(viii) into force subject to the modification that references to “registered provider” in section 131(2)(a) and (2)(b), in so far as it applies to sub-paragraph (viii), are to be read as “regulated institution” during the period beginning with 1 August 2024 and ending with 31 July 2026. Article 8 enables the Commission to require regulated institutions and persons other than regulated institutions in receipt of funding from the Commission pursuant to section 136 of the Act to give it information it requests for the purposes of the exercise of its functions.

Article 16 inserts new provision (aa) in section 131(2) and new provision (2A) after section 131(2) during the period beginning with 1 August 2024 and ending with 31 July 2026. These provisions enable the Commission to require a person other than a regulated institution in receipt of funding provided under section 65 of the 1992 Act to provide it with information it requests for the purposes of the exercise of its functions.

Article 3(a) brings into force section 131(3)(a) of the Act to the extent it relates to a person mentioned in subsection (2)(c) or (d). Article 3(b) brings into force section 131(6) of the Act to the extent it enables the Commission to give a person listed in section 131(2)(a), (aa), (b)(viii), (c) and (d) information about any matter in relation to which the Commission has a function.

Article 2(f) brings into force section 135(1), (2), (4) and (5) of the Act. Section 135(1) enables the Commission to give advice and issue guidance about the provision of tertiary education or matters connected to its functions. Section 135(2) obliges the Commission to identify good practice and issue advice and guidance in relation to the sharing of information by persons listed in subsection (3). Article 9 brings into force section 135(3) of the Act subject to the modification that both references to “a registered provider” are to be read as “a regulated institution” during the period beginning with 1 August 2024 and ending with 31 July 2026. Section 135(4) and (5) obliges the Commission to publish any guidance it issues under subsections (1) and (2) and to establish systems for collecting information.

Article 2(g) brings into force section 136 of the Act which enables the Commission or the Welsh Ministers to carry out or secure funding for others to carry out research falling within subsection (1)(a) to (d).

Article 2(h) brings into force section 139(1), (2) and (4) of the Act which provides for amendments to section 128(1)(b)(iii) and (4)(b) (dissolution of higher education corporations in Wales) of the Education Reform Act 1988 to substitute references to HEFCW with references to the Commission.

Article 2(i) brings into force section 140 of the Act. Section 140 inserts a new section 9A in the Employment and Training Act 1973 which obliges the Welsh Ministers to consult the Commission in each financial year on strategic priorities in the next financial year.

Article 2(j) brings into force provisions in paragraphs 4, 8, 9, 11 and 15 of Schedule 1 (the Commission) to the Act to the extent they are not already in force, together with paragraph 6. These paragraphs of Schedule 1 make provision about the associate Commission staff member, terms of associate membership, the staff member appointment committee, and accounts and audit requirements.

Article 2(k)(i) to (xxiii) brings into force provisions in Schedule 4 (minor and consequential amendments) to the Act which make amendments to legislation arising in consequence of the Act.

Article 3(c)(i) to (vii) brings into force certain amendments set out in Schedule 4 to the Act to the extent specified.

Article 10 brings into force paragraph 32 of Schedule 4 to the Act which substitutes references to HEFCW with references to the Commission in section 6 (meaning of public body) and section 32 (other partners) of the Well-being of Future Generations (Wales) Act 2015 (“Well-being Act 2015”). Article 10 makes transitory provision in respect of the period during which the Auditor General for Wales must examine and report on the extent to which the Commission has acted in accordance with the sustainable development principle when setting its well-being objectives and taking steps to meet those objectives for the purposes of section 15(1) of the Well-being Act 2015.

Article 43 makes transitional provision in respect of section 9(2)(a) of the Well-being Act 2015 so that the Commission is required to set and publish its well-being objectives no later than 31 March 2025.

Articles 11(1) and 12(1) bring into force consequential amendments relating to section 145B (studies at request of educational bodies) of the Government of Wales Act 1998 (“1998 Act”) set out in paragraph 12(2)(a)(i) and (b) of Schedule 4 to the Act. Article 11(2) provides that where HEFCW is the requesting body for a study being undertaken immediately before 1 August 2024 by the Auditor General for Wales under section 145B(1), that study is on and after 1 August 2024 to be treated for the purposes of that section and section 145B(3) of the 1998 Act as having been requested by the Commission. Article 12(2) provides that where, immediately before 1 August 2024, the Auditor General for Wales is due to respond to a request for advice received from HEFCW before 1 August 2024 under section 145B(4) of the 1998 Act, that request for advice is to be treated on and after 1 August 2024 as having been made by the Commission.

Article 13 brings into force consequential amendments relating to section 144 (designated institutions: disposal of land, etc.) of the Learning and Skills Act 2000 subject to transitional provisions set out in paragraph (2). Section 144 concerns certain disposals of land by trustees. The transitional provisions provide that, in relation to a disposal of land in Wales before 1 August 2024, the Welsh Ministers (rather than the Commission) remain the appropriate authority for the purposes of that section; and where an arbitrator is appointed in relation to such a disposal, the expenses of that arbitrator are borne equally between the trustees and the Welsh Ministers (rather than the Commission).

Part 3 (articles 14 and 15) brings into force from 1 April 2025 paragraph 16(1)(a) and (b) and (3) to (5) of Schedule 1 to the Act. These provisions require the Commission to prepare an annual report setting out how it has exercised its functions during a financial year, the progress it has made towards implementing its strategic plan and the extent to which it has addressed the Welsh Ministers’ statement of strategic priorities. Article 15(2) provides that the Commission’s duty to prepare an annual report in respect of how it has exercised its functions in paragraph 16(1)(a) does not include details of how it has exercised its functions under the 2015 Act during the period beginning with 1 August 2024 and ending immediately before the coming into force of paragraph 31 of Schedule 4 to the Act in full. The Commission must send a copy of the report to the Welsh Ministers who must lay a copy before Senedd Cymru. Article 14(b) brings into force paragraph 17(1) which provides the meaning of “financial year” for the purposes of paragraph 16.

Part 4 (articles 16 to 27) sets out temporary modifications to legislation arising in connection with the dissolution of HEFCW and the transition to the registration system established under Part 2 of the Act.

Part 5 (articles 28 to 45) makes transitional provision in respect of the dissolution of HEFCW. This includes provisions relating to the continuation of things done by HEFCW prior to its dissolution, submission of HEFCW’s final statement of accounts, certain aspects of the 2015 Act and regulations made under the 2015 Act.

Article 28 provides for the continuation and treatment, from 1 August 2024, of things done or being done by, in relation to, or on behalf of HEFCW before that date, where those things are in connection with a function to be performed by the Commission by virtue of this Order or the coming into force of a provision of the Act by virtue of this Order. Article 28 also provides that references to HEFCW in related guidance, information, advice or other documents are to have effect as if those references are references to the Commission. Article 28 does not apply in relation to articles 11 to 13, 30 to 42, 44 or 45 of this Order.

Article 29 provides for the Commission to submit HEFCW’s final statement of accounts to the Welsh Ministers and the Auditor General for Wales by 30 November 2024. The statement must be prepared in accordance with any directions given by the Welsh Ministers. The Auditor General for Wales must examine, certify and report on the statement and lay a copy of that report and statement before Senedd Cymru.

This Order makes provision for the continuation and treatment, from 1 August 2024, of fee and access plans approved by HEFCW under Part 2 of the 2015 Act (article 30), directions, notices and any related warning notices given by HEFCW under that Act (articles 31, 32, 34 and 37 to 39) and reviews under Part 6 of the 2015 Act which are in progress immediately before that date (article 33). This Order also makes transitional provision concerning directions given by the Welsh Ministers under section 28(4) of the 2015 Act and guidance issued by the Welsh Ministers which have effect immediately before 1 August 2024 (articles 35, 40 and 41). Additionally, articles 36 and 42 make provision, respectively, for the continuation and treatment, from 1 August 2024, of the financial management code published under Part 4 of the 2015 Act and the statement in respect of intervention functions published under section 52 of the 2015 Act which have effect immediately before 1 August 2024.

As regards regulations made under the 2015 Act, article 44 makes transitional provision in respect of regulation 11 of the Higher Education (Fee and Access Plans) (Notices and Directions) (Wales) Regulations 2015. Article 45 makes transitional provision in respect of regulation 7 of the Higher Education (Fee and Access Plans) (Notices, Procedure and Publication) (Wales) Regulations 2016.