Further and Higher Education (Scotland) Act 1992

Part I — Further Education

Chapter I — Duties in relation to further education

Establishment of new institutions by the Secretary of State.

1

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In this Part of this Act “further education” means any programme of learning, not being school education, provided for persons over school age, being a programme falling, for the time being, within section 6 of this Act.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Function of education authorities

2

Section 1 of the 1980 Act (duty of education authorities to secure provision of education) shall be amended as follows—

• (a) in subsection (1) for the words “subsection (2)” there shall be substituted the words “ subsections (2) and (2A) ”; and

• (b) after subsection (2) there shall be inserted the following subsection—

(2A) The duty imposed on an education authority by subsection (1) above shall not include the provision of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992, but an education authority shall have power to provide such further education for their area.

Powers of Secretary of State

3

• (1) The Secretary of State ... may, subject to subsection (3) below—

• (a) establish new colleges of further education;

• (b) merge two or more colleges of further education;

• (c) close colleges of further education.

• (2) The powers of the Secretary of State in relation to the matters mentioned in paragraphs (a) to (c) of subsection (1) above shall be exercised by order; and an order under subsection (1)(a) above establishing a college of further education or under subsection (1)(b) above merging two or more colleges of further education shall contain provision—

• (a) designating the name; and

• (b) establishing a body corporate to be known as “the Board of Management of”,

the college so established or, as the case may be, created by merger.

• (3) The power conferred by paragraphs (b) and (c) of subsection (1) above shall be exercised only in relation to colleges for which boards of management have been established in pursuance of this Part of this Act.

• (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.

• (5) The Secretary of State may by order amend Schedule 2 to this Act to make different provision to that contained, for the time being, in paragraphs 2 to 18 of that Schedule.

• (6) The Secretary of State may by regulations prescribe requirements with which boards of management shall comply in discharging their functions under this Part of this Act and the Further and Higher Education (Scotland) Act 2005.

• (7) Before making regulations under subsection (6), the Scottish Ministers must consult—

• (a) the boards of management to which the regulations relate;

• (b) any regional strategic body for a college of further education which has such a board;

• (c) the students' association of each such college;

• (d) any body which appears to the Scottish Ministers to be representative of students of colleges of further education generally;

• (e) the Council;

• (f) any body which appears to the Scottish Ministers to be representative of colleges of further education;

• (g) the representatives of any trade union which is recognised by a board of management to which the regulations relate or which otherwise appears to the Scottish Ministers to be representative of its staff;

• (h) any body which appears to the Scottish Ministers to be representative of trade unions in Scotland; and

• (i) any other person appearing to the Scottish Ministers as likely to be affected by the regulations.

Funding of further education

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirement on Secretary of State to consult

5

• (1) Where, in relation to any college of further education, the Secretary of State proposes to exercise any power to which this section applies, he shall consult the education authority for the area in which the college is or, as the case may be, is to be situated , the persons mentioned in subsection (1A) and any other person appearing to the Secretary of State to be affected by the proposal.

• (1A) Those persons are—

• (a) the Council; and

• (b) where the proposal is to exercise the power under section 3(1)(b) or (c) or 44 of this Act—

• (i) the board of management of the college or colleges concerned;

• (ii) any regional strategic body for such a college;

• (iii) the representatives of any trade union which is recognised by any such board of management or which otherwise appears to the Scottish Ministers to be representative of its staff;

• (iv) the students' association of each such college.

• (2) This section applies to—

• (a) the power of the Secretary of State under section 3 of this Act—

• (i) to establish a new college of further education;

• (ii) to close a college of further education; or

• (iii) to merge two or more colleges of further education; and

• (b) the power of the Secretary of State under section 44 of this Act to designate an institution for the purposes of Part II of this Act, if the institution is a college of further education in respect of which a board of management has been established in pursuance of this Part of this Act.

Further education to which section 1 applies

6

• (1) A programme of learning falls within this section if it—

• (a) prepares a person for a vocational qualification;

• (b) prepares a person for—

• (i) a qualification awarded by Qualifications Scotland; or

• (ii) a General Certificate of Education qualification of England and Wales or Northern Ireland;

• (c) provides instruction for persons who are participating in a programme of learning which falls within this section and who have a learning difficulty;

• (d) prepares a person for access to higher education;

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

• (f) is designed predominantly to prepare a person for participation in any programme of learning which falls within this section.

• (2) The Secretary of State may by order, from time to time, amend subsection (1) above by adding or removing any entry relating to a programme of learning or by varying any such entry.

• (3) An order shall not be made under subsection (2) above unless the Secretary of State has consulted—

• (a) such persons or organisations appearing to him to be representative of boards of management and education authorities; and

• (b) such other persons,

as appear to him to be appropriate as to the amendments proposed to be made by the order.

Chapter II — Scottish Further Education Funding Council

Scottish Further Education Funding Council

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advisory functions of the Funding Council

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of Secretary of State as regards functions of the Funding Council

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Payment of grants etc., to the Funding Council

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter III — Colleges of Further Education

Management of colleges

First transfer of colleges

11

• (1) With effect from 1st April 1993 or such other date as the Secretary of State may by order appoint (in this section referred to as “the first transfer date”) each college of further education as may be prescribed shall cease to be under the management of the education authority which, immediately before that date, was responsible for its management, and the college council for each such college shall, with effect from that date, cease to exist.

• (2) With effect from the first transfer date there shall be established for each college of further education prescribed by an order made under subsection (1) above a body corporate to be known as “the Board of Management of” that college.

• (3) The education authority which, immediately before the first transfer date, was responsible for the management of such a college of further education shall, on that date or as soon as is reasonably practicable thereafter, provide to the board of management of the college all such information held by the authority, or available to it, as relates to the college, its administration, management, fabric, students and staff.

• (4) Nothing in subsection (3) above shall require the disclosure of any information in contravention of any provision contained in any enactment (including an enactment contained in a subordinate instrument) restricting or prohibiting the disclosure of such information.

• (5) A college of further education shall not be prescribed under subsection (1) above unless it provides at least one full-time programme of further education.

Boards of management

12

• (1) A board of management shall have the duty of—

• (a) managing and conducting their college; and

• (b) ensuring that their college provides (either by itself or by arrangement with any other person) suitable and efficient further education to students of the college,

and in carrying out their duty under paragraph (b) above, the board shall have regard to the provision of managing and conducting their college.

• (2) A board of management shall have the power—

• (a) to provide or secure the provision of further education (within the meaning of section 1(5)(b) of the 1980 Act);

• (aa) to provide part-time and full-time courses of instruction for persons of school age;

• (b) to charge fees for or in connection with the provision by them of any form of further education or any course of instruction provided under sub-paragraph (aa);

• (c) to provide to students of the college such assistance of a financial or other nature (including waiving or granting remission of fees) as they may consider appropriate;

• (d) for the purpose of the administration and management of the college, to receive any property, rights, liabilities and obligations transferred to the board under or in pursuance of any provision of this Part of this Act or of the Further and Higher Education (Scotland) Act 2005;

• (e) to provide facilities of any description appearing to the board to be necessary or expedient for the purpose of or in connection with the carrying on of any of the activities mentioned in this subsection or in subsection (1) above (including boarding accommodation and recreational facilities for students and staff and facilities to meet the needs of students who have learning difficulties and disabled staff);

• (f) to supply goods and services;

• (g) subject to subsection (7)(a) below and section 18 of this Act, to acquire, hold and dispose of land and other property;

• (h) to enter into contracts, including in particular—

• (i) contracts for the employment of teachers and other staff for the purpose of or in connection with the carrying on of any such activities as are mentioned in this subsection or in subsection (1) above; and

• (ii) contracts with respect to the carrying on by the board of any of such activities;

• (i) to form or promote, or to join with any other person in forming or promoting, companies under the Companies Act 2006;

• (j) subject to subsection (7)(a) below and the said section 18, to borrow such sums as the board think fit for the purpose of carrying on any of the activities they have power to carry on or for meeting any liability or obligation transferred to them under or in pursuance of any provision of this Part of this Act and, in connection with such borrowing, to grant such security or give such guarantee or indemnity as they think fit;

• (k) to invest any sums not immediately required by the board for the purpose of their carrying on any of the activities which they have power to carry on or for meeting any liability or obligation transferred to them under or in pursuance of any provision of this Part of this Act;

• (l) subject to subsection (7)(a) below and the said section 18, to raise funds, accept gifts of money, land or other property and apply it to, or hold or administer it in trust for, the purpose of carrying on any of the activities which they have power to carry on; and

• (m) to do all such other things as are calculated to facilitate or are incidental or conducive to the carrying on of any of the activities which the board have power to carry on.

• (3) In carrying out their functions under this section a board of management shall have regard to the requirements of persons ... who have learning difficulties.

• (4) A board of management may delegate the performance of any of their functions to their chairman, to any committee appointed by them or to any member of their staff.

• (4A) A board of management of a regional college is to pay to the chairing member appointed under paragraph 3(2)(a) of Schedule 2 such remuneration as the Scottish Ministers may in each case determine.

• (5) A board of management may pay to persons appointed to be members of the board such allowances and expenses as they may determine; and any allowances and expenses to be paid by virtue of this subsection shall be calculated by reference to such criteria as the Secretary of State may determine.

• (6) A board of management shall make such reports or returns and give such information to the Secretary of State as he may require for the purposes of the exercise of his powers and the performance of his duties under this Part of this Act.

• (7) A board of management shall not, without the prior consent, given in writing, of the Secretary of State —

• (a) borrow money from any source, give any guarantee or indemnity or create any trust or security over or in respect of any of their property; or

• (b) effect any material change in the character of their college.

• (8) The Secretary of State may by order amend the provisions of subsection (2) above by varying, adding to or removing the powers conferred by that subsection.

• (9) An order shall not be made under subsection (8) above unless the Secretary of State has consulted such persons or organisations appearing to him to be representative of boards of management and such other persons as appear to him to be appropriate as to the amendments proposed to be made by the order.

• (10) Schedule 2 to this Act shall have effect with respect to the constitution and proceedings of and other matters relating to every board of management established in pursuance of any provision of this Part of this Act.

Subsequent transfers of colleges

13

• (1) As regards any college of further education which is under the management of an education authority and in respect of which the management is not transferred from the authority on the first transfer date, the Secretary of State may by order appoint a date with effect from which the college shall cease to be under the management of such education authority.

• (2) An order appointing a date under subsection (1) above for the purposes of a college of further education shall establish, with effect from such date as the Secretary of State may prescribe, a body corporate to be known as “the Board of Management of” the college.

• (3) An order made under subsection (1) above may provide that such of the provisions of this Part of this Act as appear to the Secretary of State to be necessary or expedient shall, subject to such modifications as appear to him to be appropriate, apply to the transfer of the college.

• (4) The provisions referred to in subsection (3) above may include any provision restricting the right of an education authority—

• (a) to enter into certain contracts; and

• (b) to dispose of or remove or cause to be removed or enter into any agreement or unilateral obligation for the disposal or removal of certain property,

and for the purposes of any modification made under the said subsection (3), any reference in any provision of this Part of this Act to 21st or, as the case may be, 22nd March 1991 shall be construed, respectively, as a reference to the date of or, as the case may be, the date following an announcement by the Scottish Ministers to the Scottish Parliament that they intend to exercise their power under this section.

• (5) For the purposes of any modification made by virtue of subsection (3) above to section 33 of this Act, the reference in that section to 4th November 1991 shall be construed as a reference to the date of such announcement as is mentioned in subsection (4) above.

• (6) An order shall not be made under subsection (1) above as regards a college of further education unless, at the date the order is made, the college is providing at least one full-time programme of further education.

Transfer of colleges of further education not under local authority management

14

• (1) This section applies to any college of further education which—

• (a) is not under the management of a board of management or of an education authority;

• (b) provides at least one full-time programme of further education; and

• (c) is in receipt of grant paid out of money provided by Parliament.

• (2) The management of a college of further education to which this section applies may be transferred from the persons responsible for its management or control if, and only if—

• (a) those persons have consented to the transfer; and