14th Report, 2013 (Session 4): Post-16 Education (Scotland) Bill

SP Paper 269 (Web Only)

SL/S4/13/R14

14th Report, 2013 (Session 4)

Post-16 Education (Scotland) Bill

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Post-16 Education (Scotland) Bill

The Committee reports to the Parliament as follows—

INTRODUCTION

1. At its meetings on 22 January and 19 February 2013 the Subordinate Legislation Committee considered the delegated powers provisions in the Post-16 Education (Scotland) Bill at Stage 1 (“the Bill”)1. The Committee submits this report to the Education and Culture Committee as lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”)2.

OVERVIEW OF THE BILL

3. The Post-16 Education (Scotland) Bill was introduced in the Scottish Parliament by the Scottish Government on 27 November 2012. It is described as providing a technical and administrative underpinning to the Scottish Government’s wider post-16 education reform programme. As a result, the Bill principally amends the two main enactments in this area, the Further and Higher Education (Scotland) Act 1992 (“the 1992 Act”) and the Further and Higher Education (Scotland) Act 2005 (“the 2005 Act”).

4. Part I of the 1992 Act provides the legislative basis for the existence of colleges of further education in their current form, providing for their constitution and giving the Scottish Ministers powers to establish, merge and close colleges of further education. The 2005 Act is principally concerned with the creation of the Scottish Further and Higher Education Funding Council (more commonly known as the Scottish Funding Council (“the SFC”)), its functions and the funding of further and higher education generally.

5. In the consideration of the DPM at its meeting on 22 January, the Committee agreed to write to Scottish Government officials to raise questions on the delegated powers. This correspondence is reproduced in the Annex.

DELEGATED POWERS PROVISIONS

6. The Committee considered each of the delegated powers in the Bill.

7. The Committee determined that it did not need to draw the attention of the Parliament to the following delegated powers:

Section 5(1) (inserting section 7A into the 2005 Act) – Regional colleges

Section 5(2) (inserting section 23B into the 2005 Act) – Regional colleges: planning, consultation and collaboration

Section 6 (inserting paragraph 3C of Schedule 2 to the 1992 Act) – Colleges: boards of management

Section 8(3) (inserting section 7C of the 2005 Act) – Assignation of colleges

Section 10(1) (inserting section 23J of the 2005 Act) – Regional strategic bodies: consultation and collaboration

Section 10(1) (inserting section 23K(2) of the 2005 Act) – Assigned colleges: information and directions

Section 10(1) (inserting section 23L of the 2005 Act) – Transfer of staff and property etc.

Section 10(2) (inserting section 25A of the 2005 Act) – Directions where financial mismanagement by assigned college

Section 11(2) (inserting paragraph 3(5) of new Schedule 2B to the 2005 Act) – Membership

Section 11(2) (inserting paragraph 10(4) of new Schedule 2B to the 2005 Act) – Staff

Section 11(2) (inserting paragraph 17(1) of new Schedule 2B to the 2005 Act) – Accounts

Section 17 – Ancillary provision

Section 18 – Commencement

Schedule, paragraph 6(5) (inserting section 7D of the 2005 Act) – Orders under sections 7A to 7C: supplemental

Schedule, paragraph 6(20) (modifying section 34(4) of the 2005 Act as it applies to section 7(1)) – Fundable bodies: further provision

8. The Committee’s comments and, where appropriate, recommendations on the other delegated powers are detailed below.

Section 4 (inserting section 9C into the 2005 Act) – Fee cap: students liable for higher education fees
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

Background

9. This provision enables the Scottish Ministers to make an order prescribing the upper limit on tuition fees chargeable to students from the rest of the United Kingdom in respect of higher education courses. The fees payable by students vary according to their status – so Scottish students and students from elsewhere in the European Union are required to pay a set fee of £1,820 per year in respect of any ordinary or honours degree course, in terms of the Student Fees (Specification) (Scotland) Order 2011 (“the 2011 Order”). Until the 2012/13 academic year, students from the rest of the UK were similarly liable to pay the fee set in the Student Fees (Specification) (Scotland) Order 2006. However, the effect of the 2011 Order and its associated regulations is that the set fee no longer applies to students from the rest of the UK. The fees chargeable to those students are accordingly unregulated at present – as is the case with fees chargeable to international students from outwith the EU.

10. This power has been described as a fee capping power. The Scottish Ministers do not propose to set a fee which is payable by all students from the rest of the UK. Instead, the power will enable them to set a limit beyond which universities and higher education institutions may not charge (by contrast with international students, in respect of whom the fees chargeable are whatever the market will bear). In making an order, the Ministers are required to seek to ensure that a) it applies only in relation to persons with a connection with the UK (although Scottish students will continue to benefit from the set fee arrangements in the 2011 Order), and b) the fees payable do not exceed the maximum payable if that person were attending a higher education course elsewhere in the UK during that year.

Comment

11. This power, if exercised, will confer upon students from the rest of the UK greater protection in respect of fees chargeable for higher education courses than they presently have. The Committee understands that at present there is, in effect, a voluntary agreement with the universities that they will not charge students from the rest of the UK a fee higher than the maximum presently obtaining in England (£9,000). An order made under this power would formalise that position. In principle, it seems to the Committee to be appropriate that a function of this nature be exercised by way of subordinate legislation.

12. However, the Committee wished to explore in more detail the Scottish Ministers’ views on the appropriate Parliamentary procedure which is to apply to the exercise of this power. The Ministers consider that the negative procedure is appropriate, apparently because the Ministers may not exceed the highest fee set in any other part of the UK in making an order fixing the upper limit for students from the rest of the UK studying in Scotland. It is not instantly apparent to the Committee that this fact has any bearing on the appropriate degree of Parliamentary scrutiny. The Committee notes that this is an acutely politically sensitive area and that any setting of the maximum fee level is likely to attract considerable attention from Members, the media and members of the public.

13. The Committee accordingly asked the Scottish Ministers to explain the procedure applicable in the other parts of the United Kingdom when setting the level of fees for higher education. They were also asked to explain why, when the setting of fees payable by Scottish and EU students for higher education courses under section 9 of the 2005 Act is subject to a form of super-affirmative procedure, the negative procedure would be appropriate when setting the maximum fee payable by English, Welsh and Northern Irish students.

14. In their response, the Scottish Ministers narrate that in each of England, Wales and Northern Ireland, a broadly similar method of setting the maximum fee chargeable applies. In each jurisdiction, there exists a “basic amount” and a “higher amount” which is prescribed in subordinate legislation by the relevant Government. These are limits on the maximum tuition fees chargeable. The Ministers advise that, in England, the basic amount applies where no widening access plan approved by the Office for Fair Access has been entered into by the higher education institution. Where such a plan exists, the institution may set fees up to the higher amount. In essence, then, whichever of these jurisdictions sets the highest “higher amount” will determine the maximum level at which the Scottish Ministers may fix the tuition fee cap for students from the rest of the UK studying in Scotland.

15. For England, Wales and Northern Ireland, the first exercise of the power to set the basic and higher amount is subject to the equivalent of the affirmative procedure. If regulations are made to vary the higher amount, then they will be subject to the negative procedure so long as any increase is no greater than that required to maintain the value of the amount in real terms (or if the variation decreases the higher amount). However, where an increase in excess of that required to allow for inflation is intended, it is necessary to secure a resolution in each House of Parliament or the appropriate Assembly agreeing an increase to a specified amount as from a specified date before making the regulations. This appears to the Committee to be a variant of the affirmative procedure.

16. The Committee considers it instructive that in every other jurisdiction of the UK, the setting of the maximum fee level is subject (leaving aside inflationary uprating and decreases) to a form of the affirmative procedure. It considers that it would be a significant departure from the level of scrutiny obtaining elsewhere in the UK were this power to be exercisable by the negative procedure in all cases. It is fortified in this view by the fact that the power to set fees for Scottish and EU students (which power was formerly exercised in relation to the rest of UK students as well) is subject to the super-affirmative procedure specified in section 9(13) and (14) of the 2005 Act. Although the Ministers suggest that they may need to vary the Scottish upper limit quickly in response to changes in other parts of the United Kingdom, the Committee observes that the same principle applies in those other jurisdictions. It suggests that, so long as a co-operative and coherent approach is adopted by the various administrations, it should be possible to exercise this power in a way which ensures parity (that being, apparently, the Ministers’ policy) while adequately respecting the need for appropriate Parliamentary scrutiny of Scottish instruments.

17. It is not apparent to the Committee that the question of additional costs for the Scottish Government or market disadvantage for Scottish higher education institutions is of any particular bearing in determining the appropriate level of Parliamentary scrutiny for an instrument made under this power.

18. Accordingly, the Committee does not consider that the negative procedure would represent an adequate level of scrutiny for the exercise of this power, given the sensitivity of the function being exercised, and the fact that it would represent a substantially lower level of scrutiny than that applicable when setting fees for Scottish and EU students.

19. The Committee considers that the power in section 4 (inserting section 9C into the 2005 Act) is acceptable in principle, subject to the following recommendation.

20. The Committee does not consider that the negative procedure would represent an adequate level of scrutiny for the exercise of this power. It recommends that its exercise be subject to the affirmative procedure, except when the increase in the fee cap is no greater than is required to maintain the value of the amount previously set in real terms.

Section 7 (substituting section 24 of the 1992 Act) – Mismanagement by boards
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

Background

21. Section 7 of the Bill substitutes a new section 24 into the 1992 Act. Section 24, at present, enables the Scottish Ministers to remove members of a college’s board of management for mismanagement of the affairs of the board. The DPM, at paragraph 19, narrates that the replacement section 24 specifies additional circumstances where the Ministers may remove board members. It further states that this is considered necessary in order to ensure that colleges are “accountable for agreed outcomes” and “to safeguard educational opportunities”.

Comment

22. The Committee observes that the Scottish Ministers’ (or, pre-devolution, the Secretary of State’s) power to make subordinate legislation to remove board members for mismanaging the affairs of the board is a longstanding one. However, as the Ministers indicate in the DPM, the new section 24 represents an extension of the power of removal. It now extends beyond mismanagement to encompass breaching the terms and conditions of grants made to that college under the 2005 Act, failing to provide education to a standard the Ministers consider appropriate, and failing to exercise any other functions properly. It may also be exercised where the SFC or regional strategic body reports to the Ministers that the college no longer has suitable provisions, procedures and arrangements as described in section 7(2) of the 2005 Act. In their response to the Committee’s letter of 22 January, the Ministers advise that the proposed change is in response to a Review of Further Education Governance carried out by Professor Griggs.

23. While the Committee agrees in principle that a power to make subordinate legislation to remove board members may be appropriate, it appears to the Committee that the new section 24 represents a substantial expansion of the scope of this power. The Scottish Ministers appear to say that this is necessary because of difficulties in establishing that circumstances arose as a result of mismanagement. The Committee notes, from the Ministers’ response, that the lead Committee has already taken evidence on this matter. It accordingly draws to the attention of the lead Committee its view that that this represents a substantial innovation on, and expansion of, the existing section 24 power.

24. The exercise of this power is subject to the negative procedure. The Committee notes the Scottish Ministers’ explanation that the existing section 24 power is subject to the negative procedure, and that the 1992 Act further enables them to close colleges (rather than merely removing board members), with that power being subject also to the negative procedure. They take the view that, if a college may be closed using an instrument subject to the negative procedure, it would be disproportionate to require a higher degree of scrutiny for removal of members of its governing body. The Committee considers that the argument being made (taken to its logical conclusion) is that as the ultimate sanction of closing a college is subject only to the negative procedure, any lesser step ought necessarily not to be subject to a higher degree of scrutiny. The Committee is not entirely persuaded by this argument, particularly as removal touches upon the rights and interests of individual board members. However, it does accept that this power has for a lengthy period been subject to the negative procedure. In the circumstances, it does not consider that a higher level of scrutiny is necessary to ensure adequate Parliamentary consideration of orders made under this power.

25. Given the substantial expansion of the grounds upon which members of a college’s board of management may be removed, the Committee draws the power in section 7 (substituting section 24 of the 1992 Act) to the attention of the lead Committee.

26. It is otherwise content that the exercise of the power be subject to the negative procedure.

Section 12 (inserting section 23N of the 2005 Act) – Mismanagement of regional boards
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

Background

27. This provision inserts new section 23N into the 2005 Act. It appears to be closely modelled on the replacement section 24 of the 1992 Act which is discussed immediately above, and it is applicable to the regional boards. Any variations appear merely to reflect the differing functions of the colleges and regional boards.

Comment

28. The Committee considers that, as this power is so closely modelled upon that in section 24 of the 1992 Act (as substituted by section 7 of this Bill), similar considerations apply in respect of it. If it is appropriate to delegate power to remove members of the boards of management of individual colleges on specified grounds, then it appears to be appropriate to the Committee that the members of regional boards may be removed in a similar fashion and on similar grounds (adjusted to take account of the differing functions of the bodies in question). Equally, it would appear to be appropriate for the power to be subject to the same level of Parliamentary scrutiny.

29. Accordingly, given the breadth of the grounds upon which the members of a regional board may be removed, the Committee draws the power in section 12 (inserting section 23N of the 2005 Act) to the attention of the lead Committee.

30. It is otherwise content that the exercise of the power be subject to the negative procedure.3

Section 8(1) (inserting section 7B of the 2005 Act) – Regional strategic bodies
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (see comment below)

Section 13 (introducing section 23O of the 2005 Act) – Establishment and abolition of regional boards: supplemental
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (only exercisable when making an order under section 7B(2)(a) of the 2005 Act, which is subject to the negative procedure)

Background

31. A new schedule 2A is inserted into the 2005 Act by the Bill. It specifies the regional strategic bodies. Section 8(1) inserts section 7B, which gives the Scottish Ministers powers to modify the schedule. So far as the regional boards are concerned, the Ministers may establish, abolish or rename them. At present, the only regional strategic body which is not a regional board is the University of Highlands and Islands(“UHI”). The Ministers may remove that entry, add another fundable post-16 education body to the list of regional strategic boards, or vary any entry. For the avoidance of doubt, however, this does not confer a power to establish or abolish such a body. That power is only exercisable in relation to the regional boards created for the purposes of this Bill.

32. Section 13 inserts a new section 23O into the 2005 Act, which makes supplemental provision about the establishment and abolition of regional boards. In particular, section 23O(3) enables the Scottish Ministers, when making an order abolishing a regional board, to provide for the transfer of its staff, property, rights, liabilities and obligations to another person, and for consequential provision about the expenses of abolition and the exercise of functions. These supplemental powers are in many respects analogous to the provisions of section 25 of the 1992 Act, which apply when a college is being closed and wound up.

Comment

33. The Scottish Ministers identify in their Policy Memorandum that the intention is ultimately to move to single colleges in each region (which will be designated as regional colleges). There may accordingly be a need to abolish or otherwise modify the regional boards as mergers arise. Equally, the underlying flexibility of the regional strategic body structure could see other higher education institutions join UHI in acting as a regional strategic body in lieu of the boards. The powers in section 7B enable the Ministers to make the necessary amendments to schedule 2A to give effect to these intentions. The Committee agrees that this is a function which might appropriately be delegated, rather than requiring primary legislation every time some reorganisation takes place.

34. Similarly, the new section 23O enables the Scottish Ministers to make supplemental provision when abolishing a regional board, to provide for the transfer in particular of its staff and property, and to enable the carrying out of its winding up. Similar powers have been conferred in relation to the winding up of colleges and designated higher education institutions in terms of the 1992 Act. The Committee accordingly accepts that it is, in principle, appropriate to confer these supplemental powers by analogy with the provisions applicable to the winding up of other education bodies.

35. The Committee has had some difficulty in relation to the procedure applicable to this power. As the section 23O power is only exercisable when making an order under section 7B(2)(a), these comments apply equally to the exercise of the supplemental powers. The DPM, at paragraph 23, narrates that the affirmative procedure is considered appropriate and gives reasons for that. However, the Bill as drafted makes the section 7B power subject to the negative procedure. In their response, the Scottish Ministers acknowledge this inconsistency.

36. The Scottish Ministers go on to advise that it is intended that either the affirmative or the negative procedure will apply to the exercise of the section 7B power, depending on the circumstances. The power is considered by them to be analogous to the power in section 7 of the 2005 Act which gives the Ministers a power to amend the list of “fundable bodies” in schedule 2 to that Act. Paragraph 6(20) of the schedule to this Bill will amend the procedure applicable to section 7 so that the affirmative procedure applies except where the amendment results from a change in name of or from the closure of a fundable body. Neither a change in name nor the closure of a fundable body is achieved by subordinate legislation which is subject to the affirmative procedure, and the Ministers argue that it is disproportionate, say, to close a college (which is done by order subject to the negative procedure) but then to require an affirmative instrument to make the consequential adjustment of the list of fundable bodies.

37. The Committee considers that the alteration of the procedure applicable to section 7 of the 2005 Act is appropriate and proportionate. It also accepts the Scottish Ministers’ view that the new power in section 7B is analogous to the section 7 power. It accordingly appears to the Committee to be appropriate that the power in section 7B (and, by extension, the power in section 23O) be subject to the negative procedure when it is exercised in consequence of a change in name, or of a removal from the list on closure of the relevant body, but that in all other cases the exercise of the power be subject to the affirmative procedure.

38. The Scottish Ministers propose to bring forward an amendment to the Bill at Stage 2 which will further amend section 34(4) of the 2005 Act (which specifies the Parliamentary procedure applicable to the exercise of the section 7B power) in order to achieve this intention.

39. The Committee finds the powers in sections 8(1) (inserting section 7B of the 2005 Act) and 13 (introducing section 23O of the 2005 Act) to be acceptable in principle.

40. Rather than the exercise of these powers being subject to the negative procedure in all cases, as the Bill presently provides, the Committee considers that it would be appropriate for these powers to be subject to the negative procedure when being exercised in consequence of a change of name of a body, or to remove a body from the new schedule 2A to the 2005 Act following its closure. In all other circumstances, it considers that the powers should be subject to the affirmative procedure.

41. The Committee welcomes the intention of the Scottish Ministers to bring forward amendments to the Bill at Stage 2 so that the negative and the affirmative procedures will apply to the exercise of these powers as outlined above.

Section 11(2) (inserting paragraph 18(1) of new schedule 2B (Regional boards) to the 2005 Act) – Modification
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

Background

42. Schedule 2B to the 2005 Act is inserted by section 11(2) of the Bill. It provides for the constitution, functions and administrative arrangements of regional boards. Paragraph 18(1) of the schedule confers on the Scottish Ministers a power to modify the schedule (with the exception of paragraph 2, relating to the status of boards) by varying, adding to or removing any of its provisions relating to a board’s constitution, functions or administrative arrangements.

Comment

43. The DPM, at paragraph 31, narrates that as regional boards are an entirely new creation, it is thought appropriate to have the power to modify the schedule governing their operation to respond to any new demands upon them which arise. The Scottish Ministers point out that they have comparable powers in relation to the constitution, proceedings and powers of the boards of management of further education colleges, in terms of sections 3(5) and 12(8) of the 1992 Act. Those provisions enable the amendment of section 12(2) of and Schedule 2 to that Act, and orders under those powers are subject to the negative procedure. The Committee agrees that it would be excessive if technical changes of this nature required primary legislation to achieve them.

44. The Scottish Ministers appeared to take the view that the negative procedure would be appropriate to the exercise of this power, apparently on the basis of consistency with the 1992 Act powers. The Committee, while noting the technical and administrative nature of the schedule which may be modified under this power, took the view that some of its provisions are more substantive in their nature. It was not persuaded that the negative procedure would necessarily be appropriate, given that this is a power to modify primary legislation. It accordingly asked the Scottish Ministers for further justification as to why the negative procedure would ensure an adequate degree of Parliamentary scrutiny.

45. In their response, the Scottish Ministers point to the desirability of consistency with the 1992 Act. However, they go on to accept that approaches to the delegation of powers have changed since 1992, and indicate that they would be prepared to seek to amend the procedure applicable. In the Ministers’ view, it would be appropriate for the power to be subject to the affirmative procedure, save where the sole purpose of the instrument is to vary the size of a regional board. The Committee considers that this is an appropriate and proportionate proposal on the part of the Ministers. It observes that this will ensure that a higher level of scrutiny can be devoted to substantive changes to the schedule, while permitting technical variations to the size of the board to be achieved with a lesser degree of scrutiny.

46. The Committee finds the powers in section 11(2) (inserting paragraph 18(1) of new schedule 2B (Regional boards) to the 2005 Act) to be acceptable in principle.

47. The Committee considers that it would be appropriate for this power to be subject to the affirmative procedure, except where the power is exercised solely to vary the number of members of a regional board when the negative procedure should apply.

48. The Committee accordingly welcomes the intention of the Scottish Ministers to bring forward amendments at Stage 2 so that the affirmative and the negative procedures will apply to the exercise of this power as outlined above.

Section 15(1) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

Background

49. Section 15 of the Bill enables the Scottish Ministers to make subordinate legislation requiring any person to provide information which that person holds about a young person to Skills Development Scotland Co. Limited (“SDS”), for the purposes of enabling or assisting SDS to monitor that young person’s involvement in education or training, to provide advice or support as regards that young person’s education or training, or to exercise any of its other functions in relation to that young person. The Ministers may specify the persons to whom the duty is to apply, the information which is to be provided, and the form and manner in which it is to be provided.

Comment

50. As the DPM, at paragraph 37, specifies that the Scottish Ministers would wish to exercise this power in relation to “persons who are providing education and training to young persons”, the Committee asked why it was necessary that this power apply to any person, instead of being restricted to persons in that category. In their response, the Ministers advise that it may be necessary to exercise the power in relation to third parties who have relationships with the providers of education and training. They give the example of the SFC, and say that it may be required to share information for the purpose of identifying those persons who have withdrawn from their courses. The Committee notes that there is some force in what the Ministers say, although it continues to be concerned that this power is drawn so widely that it might, for example, be applied to private tutors and other individuals in similar circumstances. The Committee recalls that, although this administration may not propose to use the power otherwise than as it presently advises, it cannot bind a future administration and so the grant of broad powers creates a risk that they may be exercised differently to the way that the Parliament or the administration of the day intended.

51. The Scottish Ministers take the view that the power is inherently constrained as information may only be shared for the purposes set out within subsection (1) of section 15. It appears to the Committee, however, that these are still broad categories and it is not convinced that this represents any substantial limitation on the exercise of the section 15 power. Furthermore, the Committee notes the references in the Ministers’ response to the sharing of data in accordance with the provisions of the Data Protection Act 1998. While the Committee is content that that Act provides certain safeguards in relation to information sharing, it also observes that the sharing of personal data is likely to engage the rights guaranteed by Article 8 of the European Convention on Human Rights (the right to private and family life). The Ministers have not addressed this point specifically and accordingly it is not clear to the Committee what justification there might be for interference with Article 8 rights in the exercise of this power. The Committee will accordingly wish to be reassured, when this power is exercised, that all steps have been taken to ensure that the resulting instrument adequately respects the Article 8 rights with which it engages.

52. The Scottish Ministers’ position is that the constraints in section 15(1), coupled with the requirements of the Data Protection Act 1998, mean that the negative procedure will provide an adequate level of scrutiny for instruments made under that power. The Committee is not convinced that the power is as restricted as the Ministers appear to think. While the Ministers may intend to exercise it in a fairly limited fashion, the Committee is obliged to consider what is possible under the power rather than what the Ministers propose to do with it. Accordingly, if the Ministers do not wish to draw the power more narrowly then the Committee considers that its exercise should be subject to a higher level of Parliamentary scrutiny, not least because its exercise is likely to engage individuals’ Convention rights as well as questions about whether it adequately complies with the provisions of the Data Protection Act 1998.

53. The Committee therefore draws the power in section 15(1) to the attention of the lead Committee on the basis that it has been drafted in terms which are rather broader than the Scottish Ministers’ declared policy intention, observing that it appears possible that the power as drafted could extend beyond the provision which the Ministers say they propose to make.

54. The Committee also observes that the exercise of this power appears likely to engage the rights under Article 8 of the European Convention on Human Rights of the persons whose personal data is shared in terms of an order under this section. It accordingly notes that it will wish to be reassured, when it comes to consider any subordinate legislation made under this power, that adequate consideration has been given to the Convention rights (in particular Article 8) and that – to the extent that Article 8 is engaged – any interference is capable of being objectively justified and is proportionate.

55. The Committee further recommends that, if the Scottish Ministers continue to consider it necessary to take this power in its present form, then its exercise should be subject to the affirmative procedure to ensure adequate Parliamentary scrutiny of the use of the power, in particular so that the Parliament may be reassured that the power is being used as intended and not in a wider fashion.

Section 15(5) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

Background

56. This power is intended to enable the Scottish Ministers to modify section 15 to replace references to SDS with references to any other person. It appears that it is also intended to allow them to update section 15 to reflect changes in name (i.e. where the person referred to remains the same, but has changed its name).

Comment

57. As the DPM indicates, it may be that in future the role of SDS is varied and that the Scottish Ministers will wish to confer certain of its functions on other bodies. Alternatively, it may simply change its name (as a limited company, it can do so in the same way as any other company, in accordance with the Companies Act 2006). The Ministers wish to have a power to modify section 15 in consequence of changes of this nature. This does not appear to the Committee to be disproportionate. It remarks, however, that it is not clear that the drafting of the provision adequately delivers the Ministers’ intentions in respect of that second situation. The power is to replace reference to “Skills Development Scotland Co. Ltd.” with references to such other persons as they consider appropriate. If SDS merely changes its name in accordance with company law, the Committee considers that it would be the same legal person. Accordingly, it is unclear to the Committee what other person could be said to be substituted (the situation, properly analysed, being merely the change of name of one legal person rather than the substitution of one legal person for another). The Committee accordingly considers that it is doubtful if the power may be exercised simply to reflect any change in name of SDS.

58. The Scottish Ministers assert that section 15(5) is sufficient to cover the situation where a company merely changes its name. They do not provide any justification for that view. Indeed, they go on to pray in aid the procedural provisions of section 15(8) in support of their position. The Committee does not consider that a provision specifying the procedure which will apply should certain circumstances come to pass can rectify a failure to provide in the power itself for one of those circumstances. Shortly put, if section 15(5) is insufficient to confer power to modify the name of SDS in section 15, then there is no power to make such an order and the words in subsection (8) relating to a change of name are at best otiose, as the situation can never competently arise.

59. The Committee wishes to make it clear that it has no objection in principle to this power being conferred. It does, however, have a concern that the present drafting of the power does not deliver the Scottish Ministers’ apparent policy intention, and observes that this may lead to doubt and difficulty when the power comes to be exercised. It accordingly recommends that the Ministers revisit the drafting of this provision to ensure that it clearly and unambiguously enables the Ministers to make orders in all of the situations where they wish to. It therefore welcomes the Ministers’ intentions to give further consideration to the drafting of this provision.

60. The Committee is content that the negative procedure is appropriate when one person is being substituted for another by virtue of this power, as that gives the Parliament an opportunity to consider the replacement of SDS by another person or body, and enables the Parliament to control that replacement if it thinks it necessary. By contrast, as set out above, a change in name involves no change in legal personality and so there will be no substantive change (merely the reflection of a technical and administrative matter). The Committee agrees that – were the power in section 15(5) adequately to provide for such a situation – then it would be appropriate for such an order to be laid before the Parliament in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010, but not to be subject to any further procedure.

61. The Committee accordingly recommends that the Scottish Ministers revisit the drafting of this provision to ensure that it clearly and unambiguously delivers their stated policy intentions. It therefore welcomes the Ministers’ intentions to give further consideration to the drafting of this provision.

62. The Committee considers that it would be appropriate for this power to be subject to the negative procedure. Should the power properly extend to changing the name of Skills Development Scotland Co. Limited, then the Committee is content that such an order would be laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010, but would not be subject to any further procedure.

Section 15(7) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

Background

63. Section 15(7) contains a bespoke ancillary powers provision in addition to the standalone power in section 17. It enables the Scottish Ministers, in making an order under section 15(1) or (5), to include such supplementary, incidental, consequential, transitional, transitory or saving provision as they consider appropriate.

Comment

64. It appeared to the Committee that the bespoke ancillary powers provision in section 15(7)(b) duplicated the ancillary powers provision in section 17(1). Given that section 15 is the only substantive delegated powers provision in the Bill itself (as opposed to being inserted into the 1992 or the 2005 Acts), the Committee asked the Scottish Ministers why these powers were considered necessary.

65. The Committee is content to clarify that its interest extends to the powers conferred by section 15(7)(b), not to the whole of section 15(7). It observes that section 15(7)(a) appears to be a method of exercising the section 15 powers (so as to make different provision for different purposes) rather than being a species of power in its own right. It accordingly takes no issue with the inclusion of section 15(7)(a).

66. The Committee notes the Scottish Ministers’ concession that there is an element of duplication, and that section 15(7)(b) may not be necessary given the terms of section 17(1). It is not persuaded, given the relatively short length of the Bill and the limited number of powers involved, that there is any great merit in repeating the powers within section 15 for the sake of clarity. If anything, it considers that in future the view might be taken that the two provisions must be intended to have different effect, given the presumption that Parliament does not legislate needlessly. The Committee considers that it would be as well to avoid any possible confusion between the scope of section 15(7)(b) and section 17(1). It accordingly welcomes the Ministers’ commitment to give further consideration to this matter, and it recommends that the Ministers consider simplifying the Bill by omitting the duplicated provision in section 15(7)(b).

67. In the usual way, the procedure applicable to the exercise of an ancillary power is dependent upon the procedure applicable to the principal power being exercised. As a result, the section 15(7)(b) ancillary power will be subject to the negative procedure, unless it is being exercised to make ancillary provision in an order changing the name of SDS, in which case it will be laid before the Parliament in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010, but would not to be subject to any further procedure.

68. Were the Scottish Ministers to omit the duplicated provision in section 15(7)(b) in favour of relying upon the ancillary powers in section 17(1), the Committee observes that this would potentially have an impact on the applicable Parliamentary procedure: where the power in section 17(1) is exercised so as to textually amend any Act, it is subject to the affirmative procedure, and otherwise to the negative procedure. As matters stand, it is at least arguable that section 15(7)(b) – when exercised in conjunction with section 15(5) – might allow ancillary textual amendments which are subject only to the negative procedure (or, in the case of a change of name, to laying under section 30 only). The Committee considers that, if ancillary textual amendments are required which go beyond those narrow powers which are expressly conferred by section 15(5), it would be appropriate for the affirmative procedure to apply in any case. However, the Committee also observes that, in the majority of cases where no textual amendment is required, the use of the section 17(1) ancillary powers would have no overall effect on the level of Parliamentary procedure applicable (with the negative procedure continuing to apply).

69. The Committee accordingly recommends that the Scottish Ministers consider simplifying the Bill by omitting the duplicated provision in section 15(7)(b), and welcomes their commitment to give further consideration to this matter.


ANNEX

Correspondence with the Scottish Government

On 22 January, the Subordinate Legislation Committee wrote to The Scottish Government as follows:

Post-16 Education (Scotland) Bill at Stage 1

The Subordinate Legislation Committee considered the above Bill on Tuesday 22 January and seeks an explanation of the following matters:

Section 4 (inserting section 9C into the 2005 Act) – Fee cap: students liable for higher education fees
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

1. Section 4 enables the Scottish Ministers to make an order prescribing the upper limit on tuition fees chargeable to students from the rest of the United Kingdom in respect of higher education courses.

The Committee asks for an explanation as to:

  • Given the reliance placed on the fact that fees will not exceed those chargeable elsewhere in the United Kingdom, what level of Parliamentary scrutiny applies when higher education fees are being set by the relevant rule-making authorities in each part of the United Kingdom?
  • Further to this, and given that in Scotland the setting of fees for higher education courses under section 9 of the Further and Higher Education (Scotland) Act 2005 is subject to a form of super-affirmative procedure, why is the negative procedure considered to be appropriate when setting the maximum fees payable by students from the rest of the United Kingdom?

Section 7 (substituting section 24 of the 1992 Act) – Mismanagement by boards
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

2. Section 7 of the Bill substitutes a new section 24 into the Further and Higher Education (Scotland) Act 1992. Section 24, at present, enables the Scottish Ministers to remove members of a college’s board of management for mismanagement of the affairs of the board. The replacement section 24 specifies additional circumstances where the Ministers may remove board members.

The Committee asks for an explanation as to:

  • Why it is considered necessary to expand upon the original powers to remove board members in section 24 of the Further and Higher Education (Scotland) Act 1992 to the extent set out in the substituted section;
  • The basis for reaching that conclusion;
  • The basis for concluding that the negative procedure continues to be the appropriate level of Parliamentary scrutiny, standing the substantial expansion of the power to remove and its resulting impact on the independence of boards of management and their members?

Section 12 (inserting section 23N of the 2005 Act) – Mismanagement of regional boards
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

3. This provision inserts new section 23N into the 2005 Act. It appears to be closely modelled on the replacement section 24 of the 1992 Act, which is discussed immediately above, and it is applicable to the regional boards. Any variations appear merely to reflect the differing functions of the colleges and regional boards.

4. The Committee agreed to await the explanation given to the above question on Section 7 before forming a view on this power.

Section 8(1) (inserting section 7B of the 2005 Act) – Regional strategic bodies
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (see comment below)

Section 13 (introducing section 23O of the 2005 Act) – Establishment and abolition of regional boards: supplemental
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (only exercisable when making an order under section 7B(2)(a) of the 2005 Act, which is subject to the negative procedure)

5. A new schedule 2A is inserted into the 2005 Act by the Bill. It specifies the regional strategic bodies. Section 8(1) inserts section 7B, which gives the Scottish Ministers powers to modify the schedule.

6. Section 13 inserts a new section 23O into the 2005 Act, which makes supplemental provision about the establishment and abolition of regional boards.

The Committee asks the Scottish Government:

  • For clarification of the level of Parliamentary procedure which is intended to apply to this power, given that the effect of section 34 of the Further and Higher Education (Scotland) Act 2005 is to make it subject to the negative procedure, when the Delegated Powers Memorandum indicates that the affirmative procedure is applicable;
  • For explanation as to whether, standing the analogy to the procedure applicable to orders under section 7(1) of that Act, it is intended that the appropriate procedure is that applicable to section 7(1) as it stands, or section 7(1) as prospectively amended by paragraph 6(20) of the schedule to this Bill;
  • What steps they propose to take to ensure that the Bill adequately reflects its policy intentions in respect of the Parliamentary procedure applicable to this power?

Section 11(2) (inserting paragraph 18(1) of new Schedule 2B (Regional boards) to the 2005 Act) – Modification
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

7. Schedule 2B to the 2005 Act is inserted by section 11(2) of the Bill. It provides for the constitution, functions and administrative arrangements of regional boards. Paragraph 18(1) of the schedule confers on the Scottish Ministers a power to modify the schedule (with the exception of paragraph 2, relating to the status of boards) by varying, adding to or removing any of its provisions relating to a board’s constitution, functions or administrative arrangements.

The Committee asks for an explanation as to:

  • Whether the Scottish Government are in a position to provide any further explanation as to why the negative procedure is appropriate, given that:

    • this is a power to modify primary legislation; and
    • the Committee does not consider the reference to the procedure applicable under the Further and Higher Education (Scotland) Act 1992 to be conclusive, given a) that no powers in that Act appear to subject to the affirmative procedure and b) that it is now over 20 years since that Act was considered by the UK Parliament, and that the approach to delegation of powers appears to have altered since then?

Section 15(1) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

8. Section 15 of the Bill enables the Scottish Ministers to make subordinate legislation requiring any person to provide information which that person holds about a young person to Skills Development Scotland Co. Limited for the purposes of enabling or assisting Skills Development Scotland to monitor that young person’s involvement in education or training, to provide advice or support as regards that young person’s education or training, or to exercise any of its other functions in relation to that young person.

The Committee asks for an explanation as to:

  • Why, given the stated position in the Delegated Powers Memorandum that the Scottish Government will wish to impose the duties under this section on “persons who are providing education and training to young persons”, it is necessary that it is framed more widely to allow them to impose that duty on any person; and
  • Standing the breadth of the power and the possibility that it may be used in a manner other than that which is apparently intended at some point in the future, whether it would not be more appropriate to ensure that such an order is subject to greater Parliamentary scrutiny by way of the affirmative procedure?

Section 15(5) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

9. Section 15(5) is intended to enable the Scottish Ministers to modify section 15 to replace references to Skills Development Scotland with references to any other person. It appears that it is also intended to allow them to update section 15 to reflect changes in name.

The Committee asks for an explanation as to:

  • Why it is considered that the power in section 15(5) may be used to effect a change of name, given that a change of name does not involve any change in legal personality and so there is no “other person” to substitute for references to Skills Development Scotland Co. Limited;
  • Whether the power in section 15(5) is intended to be exercisable more than once, and if so whether this means that the power is capable of modifying the reference to “Skills Development Scotland Co. Limited” within the power itself; and
  • If this is the intended effect, whether that is sufficiently clear from the drafting?

Section 15(7) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

10. Section 15(7) contains a bespoke ancillary powers provision in addition to the standalone power in section 17. It enables the Scottish Ministers, in making an order under section 15(1) or (5), to include such supplementary, incidental, consequential, transitional, transitory or saving provision as they consider appropriate.

The Committee asks for an explanation as to:

  • Why it is considered necessary to seek bespoke ancillary powers provision for the purposes of section 15, when it appears to the Committee that adequate provision for ancillary powers is already made in section 17 of the Bill, which powers could also be exercised in an instrument made under section 15?

The Scottish Government responded as follows:
Section 4 (inserting section 9C into the 2005 Act) – Fee cap: students liable for higher education fees
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

The Committee asked the Scottish Government:

  • Given the reliance placed on the fact that fees will not exceed those chargeable elsewhere in the United Kingdom, what level of Parliamentary scrutiny applies when higher education fees are being set by the relevant rule-making authorities in each part of the United Kingdom?
  • Further to this, and given that in Scotland the setting of fees for higher education courses under section 9 of the Further and Higher Education (Scotland) Act 2005 is subject to a form of super-affirmative procedure, why is the negative procedure considered to be appropriate when setting the maximum fees payable by students from the rest of the United Kingdom?

In relation to the first bullet point, we will deal with England and Wales and Northern Ireland separately.

England and Wales

The relevant primary legislation for both England and Wales is the Higher Education Act 2004 (“the 2004 Act”), but there are different provisions within the 2004 Act for each of England and Wales. Very broadly, sections 23 and 24 provide a legislative basis for the Secretary of State to impose a condition of grant to the Higher Education Funding Council for England requiring the Council to impose a condition on financial support given to the governing body of an institution requiring the governing body of that institution to secure that tuition fee upper limits are adhered to. There are two different upper limits, a “basic amount” and a “higher amount”. The “basic amount” is the one which applies where an institution does not have in place a plan (regarding access) approved by the Office for Fair Access. The “higher amount” is the one which applies where an institution does have such a plan in place.

Very broadly, sections 27 and 28 of the 2004 Act provide a legislative basis for the Welsh Ministers to impose a condition of grant to the Higher Education Funding Council for Wales requiring the Council to impose a condition on financial support given to the governing body of an institution requiring the governing body of that institution to secure that tuition fee upper limits are adhered to. Again there are two different upper limits, a “basic amount” and a “higher amount”.

Sections 26 and 47 of the 2004 Act are relevant in relation to the parliamentary scrutiny of regulations made under section 24(6) (England) and section 28(6) (Wales) prescribing the “basic amount” and the “higher amount”.

Northern Ireland

The Higher Education (Northern Ireland) Order 2005 is applicable and Articles 2, 4 and 14 are relevant. Very broadly, Article 4 provides a legislative basis for the Department for Employment and Learning (“the Department”) to impose a condition of grant to the governing body of an institution requiring the governing body of the institution to secure that tuition fee upper limits are adhered to. Again, there are two different upper limits, a “basic amount” and a “higher amount”.

Article 4(10) and (11) and Article 14 are relevant in relation to parliamentary scrutiny of regulations under Article 4(8) prescribing the “basic amount” and the “higher amount”

For each of England, Wales and Northern Ireland the relevant provisions on parliamentary procedure are set out in full in the Annex to this letter for ease of reference. As it will be seen, the provisions are complex and the level of parliamentary scrutiny is different for the first regulations made using these powers and for subsequent uses of the powers to make regulations to increase the two upper limits (the basic and the higher amounts); the procedure also varies depending on the level of the increase.

With reference to the question posed in the second bullet point of the question, the negative procedure is considered appropriate because the power is constrained by section 9C(3) in that any order made can only apply to persons who have a connection with the United Kingdom and Scottish Ministers must seek to ensure that the amount provided for in the order will not result in the students to whom the order applies being charged fees per academic year at a post-16 education body which are higher than a maximum amount. That maximum amount is the amount of fees (set by legislation elsewhere in the UK) which a student would be charged to undertake a higher education course at an institution in a part of the United Kingdom other than Scotland. Given that Scottish Ministers cannot therefore set the maximum amount above that figure, it is considered that the negative procedure would provide sufficient opportunity for scrutiny.

Since Scottish Ministers may often be setting the upper limit in response to levels of tuition fees in other parts of the UK, it may be that they would need to be able to act relatively quickly to change the upper limit. Therefore the super-affirmative procedure could in certain circumstances, for example, prevent the upper limit being set in time for the start of an academic year.

The negative procedure is also considered to be appropriate when setting the maximum fees payable by RUK students as it will not result in additional costs to Scottish Government, and there is also no disadvantage to Scottish institutions who operate within the same market conditions as their UK counterparts.

Section 7 (substituting section 24 of the 1992 Act) – Mismanagement by boards
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

The Committee asked the Scottish Government for an explanation as to:

  • Why it is considered necessary to expand upon the original powers to remove board members in section 24 of the Further and Higher Education (Scotland) Act 1992 to the extent set out in the substituted section;
  • The basis for reaching that conclusion;
  • The basis for concluding that the negative procedure continues to be the appropriate level of Parliamentary scrutiny, standing the substantial expansion of the power to remove and its resulting impact on the independence of boards of management and their members?

Section 7 of the Bill substitutes section 24 of the 1992 Act. Its effect, among other things, is to extend the grounds on which Ministers may remove members of a board of management under the 1992 Act.

The proposed change was prompted by the Review of Further Education Governance (http://www.scotland.gov.uk/Topics/Education/UniversitiesColleges/17135/CollegeGovernanceReview/FEGovernanceReport) conducted by Professor Griggs, which reported in January 2012. Professor Griggs recommended, among other things, the ultimate removal of the chair and members of a college board if they don’t fulfil required outcomes.

Under section 12(1) of the 1992 Act, the board of management is under a duty to manage and conduct their college. The aim of the substituted section is to be clear on the specified matters for which members of a college board will be held responsible. If the board fails on any of the specified matters, it would be open to Ministers to seek by order to remove members. The policy intention is to (i) ensure that failure in terms of outcome(s) is material in terms of grounds for removal; and (ii) improve accountability and clarity around roles and responsibilities, through specification of what is expected of board members.

As Scottish Government officials explained to the Education and Culture Committee on 15 January 2013 (Column 1761) , the new grounds include failure in outcome. While the existing section 24 of the 1992 Act enables Ministers to take action if they consider that the affairs of the board “have been or are being mismanaged”, it may not always be possible in the given circumstances of any particular case to establish definitively that the circumstances arose because of mismanagement. Ministers consider that it should be sufficient that an undesirable outcome has occurred (e.g. a serious breach of any term of condition or the college is failing to secure education of an appropriate standard) for Ministers to be able to seek to take appropriate action.

In terms of the procedure proposed, Ministers do not consider the extension of the grounds on which board members can be removed changes the fundamental nature of their powers or their long-standing role in relation to the ability to remove college board members by order (negative resolution) if boards are failing. Ministers also have powers under the 1992 Act to merge and close colleges by order (negative resolution). The judgement is that it would be disproportionate for the procedure for removal of college board member(s) to be by affirmative resolution.

It may be of interest to the Committee that we are not aware of any power given to Ministers by the Scottish Parliament to remove board members that involves any form of Parliamentary procedure. By way of further background, the 1992 Act in Scotland when passed was in many respects similar to the Further and Higher Education Act 1992, which made similar provision England and Wales. When that Act was passed, it did not have a Parliamentary procedure attached to the equivalent order-making power for removal of board members.

Section 8(1) (inserting section 7B of the 2005 Act) – Regional strategic bodies
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (see comment below)

Section 13 (introducing section 23O of the 2005 Act) – Establishment and abolition of regional boards: supplemental
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure (only exercisable when making an order under section 7B(2)(a) of the 2005 Act, which is subject to the negative procedure)

  • The Committee asked the Scottish Government:
  • For clarification of the level of Parliamentary procedure which is intended to apply to this power, given that the effect of section 34 of the Further and Higher Education (Scotland) Act 2005 is to make it subject to the negative procedure, when the Delegated Powers Memorandum indicates that the affirmative procedure is applicable;
  • For explanation as to whether, standing the analogy to the procedure applicable to orders under section 7(1) of that Act, it is intended that the appropriate procedure is that applicable to section 7(1) as it stands, or section 7(1) as prospectively amended by paragraph 6(20) of the schedule to this Bill;
  • What steps they propose to take to ensure that the Bill adequately reflects its policy intentions in respect of the Parliamentary procedure applicable to this power?

The Scottish Government agrees that as currently drafted the Post-16 Education Bill provides that any order under the new section 7B is subject to the negative procedure. However the Government advises that both affirmative and negative procedures were intended to apply to the power in the new section 7B of the Further and Higher Education (Scotland) Act 2005. The power in section 7B(2)(a) allows Ministers to modify Part 1 of schedule 2A to establish, abolish and re-name regional boards; the power in section 7B(2)(b) allows Ministers to amend Part 2 of schedule 2A to add, remove or vary any entry relating to a fundable post-16 education body. A body which is listed in schedule 2A can be funded by the SFC.

At present bodies can be funded by the SFC if they are listed as fundable bodies in schedule 2 to the 2005 Act. Section 7 of the 2005 Act currently gives Ministers a power by order to amend schedule 2; that power is subject to affirmative procedure in all circumstances. However, the Government considers that the affirmative procedure is disproportionate when such an order seeks only to remove a fundable body from schedule 2 if it is being closed or to change the name of a fundable body. A change to negative procedure in such circumstances is proposed by means of an amendment to section 34(4) of the 2005 Act by means of paragraph 6(20)(c) of the schedule to the Post-16 Education (Scotland) Bill. The Government considers, however, that it remains appropriate to use affirmative procedure when a new body is being added to schedule 2 to the 2005 Act as a new body is being added to the list of bodies which receives public funding and such a body must meet certain criteria. Affirmative procedure would also remain where a fundable body was being removed when it was not being closed.

A similar policy applies in relation to the power to amend the lists of bodies in Parts 1 and 2 of the new schedule 2A. Where a new body is being added to those lists (or a body is being removed for reasons other than closure), then it would be appropriate for the instrument to be subject to affirmative procedure, as again, in relation to a new body being added, that new body is to be receiving public funding. Equally, where the amendment to schedule 2A seeks only to change the name of an existing body or to remove a body from the list if the body is being closed, it would seem more appropriate that such an instrument should be subject to the negative procedure. The Government will therefore seek to bring forward an amendment to section 34(4) of the 2005 Act at Stage 2 to provide for both affirmative and negative procedure to apply to the power in the new section 7B in the manner outlined above.

Section 11(2) (inserting paragraph 18(1) of new Schedule 2B (Regional boards) to the 2005 Act) – Modification
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

The Committee asked the Scottish Government for an explanation as to:

  • Whether the Scottish Government are in a position to provide any further explanation as to why the negative procedure is appropriate, given that:

    • this is a power to modify primary legislation; and
    • the Committee does not consider the reference to the procedure applicable under the Further and Higher Education (Scotland) Act 1992 to be conclusive, given a) that no powers in that Act appear to subject to the affirmative procedure and b) that it is now over 20 years since that Act was considered by the UK Parliament, and that the approach to delegation of powers appears to have altered since then?

As set out in paragraph 32 of the Delegated Powers Memorandum, when the Bill was originally drafted and introduced, negative procedure was considered appropriate having regard to the similar provision is made in section 3(5) and section 12(8) of the Further and Higher Education (Scotland) Act 1992 with respect to ‘incorporated’ colleges. Scottish Ministers considered it appropriate to take an approach consistent with these provisions. It was considered that this would allow sufficient Parliamentary scrutiny of any amendments made to the new schedule 2B.

The Scottish Government, however, appreciates that approaches to delegation of powers have changed since 1992 and is content to seek to amend this provision in the Bill. The Scottish Government would intend that the power is subject to the affirmative procedure, except in circumstances where the sole purpose of the order is to increase or decrease the size of the board, in which case it would still be subject to negative procedure. That is still considered to be appropriate for changing the board size.

Section 15(1) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure

The Committee asked the Scottish Government for an explanation as to:

  • Why, given the stated position in the Delegated Powers Memorandum that the Scottish Government will wish to impose the duties under this section on “persons who are providing education and training to young persons”, it is necessary that it is framed more widely to allow them to impose that duty on any person; and
  • Standing the breadth of the power and the possibility that it may be used in a manner other than that which is apparently intended at some point in the future, whether it would not be more appropriate to ensure that such an order is subject to greater Parliamentary scrutiny by way of the affirmative procedure?

With reference to the first of these questions, it is necessary for the power to be framed more widely as, in some cases, persons other than the ‘persons who are providing education and training to young persons’ will collect and share the required data on behalf of the person providing education. For example, the Scottish Funding Council may share specified data with Skills Development Scotland about young people who are participating in provision at colleges. This data will be used in conjunction with data we seek to receive from colleges to identify any learners who have withdrawn from their college place.

With reference to the second of these questions, the power will only enable Ministers to place a duty on persons to share data with Skills Development Scotland to enable or assist it to carry out various functions which are set out at section 15 (1) (a), (b) and (c). Therefore, although the power can be exercised in relation to any person, it is still constrained by the provisions in section 15(1). We also seek to use subordinate legislation to set out in detail the matters listed in section 15(2) (a), (b) and (c).

If an order were to impose a duty on certain persons to share information, the sharing of the data by those persons would remain entirely subject to the requirements of the Data Protection Act 1998. For example, the use of this data would be determined by legally binding bilateral agreements, or Data Sharing Agreements, between the sharing parties and Skills Development Scotland. We consider therefore that both the constraints on the use of the power and the safeguards provided by the Data Protection Act 1998 are sufficient. Consequently we believe that the negative procedure provides sufficient scrutiny.

Section 15(5) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

The Committee asked the Scottish Government for an explanation as to:

  • Why it is considered that the power in section 15(5) may be used to effect a change of name, given that a change of name does not involve any change in legal personality and so there is no “other person” to substitute for references to Skills Development Scotland Co. Limited;
  • Whether the power in section 15(5) is intended to be exercisable more than once, and if so whether this means that the power is capable of modifying the reference to “Skills Development Scotland Co. Limited” within the power itself; and
  • If this is the intended effect, whether that is sufficiently clear from the drafting?

With reference to the first of these questions, the Scottish Government considers that the power in section 15(5) is apt to be used to effect a change of name. The Scottish Government considers that if, on the face of section 15(5) itself, there is any doubt about that then that doubt is removed by the bracketed wording in section 15(8) (emphasis added):

“(8) An order under this section is subject to the negative procedure (other than an order under subsection (5) which is made in consequence of a change of name by the person concerned).”

The Scottish Government will, however, give some further consideration to this aspect of section 15 of the Bill in light of the issue raised by the Committee.

With reference to the second and third questions, the Scottish Government considers that the section 15(6) makes clear that the section 15(5) power includes a power to replace references to any other person which are included in section 15 by virtue of an initial order under section 15(5). And so it is clear that the power is exercisable more than once. The Scottish Government accepts that the section 15(5) power is capable of being exercised in order to modify the reference to “Skills Development Scotland Co. Limited” within the section 15(5) power itself. But it is not considered that, standing section 15(6), the Scottish Ministers would ever wish to exercise the power in this way.

Section 15(7) – Duty to provide information to Skills Development Scotland
Power conferred on: the Scottish Ministers
Power exercisable by: order
Parliamentary procedure: negative procedure, or where relating to a change of name, laid in accordance with section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010

The Committee asked the Scottish Government for an explanation as to:

  • Why it is considered necessary to seek bespoke ancillary powers provision for the purposes of section 15, when it appears to the Committee that adequate provision for ancillary powers is already made in section 17 of the Bill, which powers could also be exercised in an instrument made under section 15?

The Scottish Government concedes that there is an element of duplication and that section 15(7)(b) may not be necessary given the terms of section 17(1) (emphasis added):

“(1) The Scottish Ministers may by order make such supplementary, incidental, consequential, transitional, transitory or saving provision as they consider appropriate for the purposes of, in connection with or for the purposes of giving full effect to any provision made by, or by virtue of, this Act.”

That said the Scottish Government considers that there is some merit in including the provision made in section 15(7)(b) on the face of section 15 of the Bill as it makes the position clear to the reader on the face of section 15 itself.

The Scottish Government will give further consideration to the issue raised by the Committee.

With reference to section 15(7)(a), and for the avoidance of doubt, the Scottish Government considers that it is both necessary and appropriate to make provision in section 15 to the effect that an order under that section may itself make different provision for different purposes.

The Scottish Government considers that, in so doing, section 15(7)(a) makes provision of a wholly different nature to that made in section 17(2) of the Bill which provides that an order under that section (ie an order making such supplementary, incidental, consequential, transitional, transitory or saving provision as they consider appropriate for the purposes of, in connection with or for the purposes of giving full effect to any provision made by, or by virtue of, the Bill) may make different provision for different purposes.

ANNEX

Higher Education Act 2004 (applying to England and Wales)

26 Regulations under section 24(6) relating to basic or higher amount

(1) The Secretary of State may not make the first regulations under subsection (6) of section 24 prescribing the basic amount and the higher amount for the purposes of that section unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

(2) Where regulations under subsection (6) of section 24 have been made prescribing the basic amount and the higher amount for the purposes of that section–

(a) no regulations may be made increasing the basic amount unless–

(i) the Secretary of State is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii) a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament, and

(b) no regulations may be made increasing the higher amount unless–

(i) the Secretary of State is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii) each House of Parliament has at any time after 1st January 2010 passed a

resolution that, with effect from a date specified in the resolution, the higher amount should be increased to an amount specified in the resolution, and the increase is an increase to the specified amount with effect from the specified date.

(3) For the purposes of subsection (2)(a)(i) and (b)(i) the Secretary of State is to have regard to such index of prices as may be specified in, or determined in accordance with, regulations made by him under this subsection.

47 Orders and regulations

(1) Any power–

(a) of the Secretary of State or the Assembly to make an order or regulations under this Act, or

(b) of the Scottish Ministers to make an order under this Act, is exercisable by statutory instrument.

(2) Any statutory instrument containing–

(a) an order made by the Secretary of State under section 18, or

(b) regulations made by the Secretary of State under any provision of this Act,

is subject to annulment in pursuance of a resolution of either House of Parliament.

(3) Subsection (2) does not apply to–

(a) regulations to which section 26(1) or (2)(a)(ii) or (b)(ii) applies,

(b) regulations to which paragraph 12(3) of Schedule 2 applies, or

(c) regulations to which subsection (4) applies.

(4) A statutory instrument which contains (whether alone or with other provisions) regulations made by the Secretary of State by virtue of section 33(2), 34 or 37(3)(c) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(5) Any order or regulations under this Act may–

(a) make different provision for different cases or different areas,

(b) make provision generally or only in relation to specified cases, and

(c) contain such incidental, supplemental, saving or transitional provisions as the person making the order or regulations thinks fit.

(6) Nothing in this Act is to be regarded as affecting the generality of subsection (5).

Higher Education (Northern Ireland) Order 2005

4 (10) The Department may not make the first regulations under paragraph (8) prescribing the basic amount and the higher amount for the purposes of this Article unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.

4 (11) Where regulations under paragraph (8) have been made prescribing the basic amount and the higher amount for the purposes of this Article–

(a) no regulations may be made increasing the basic amount unless–

(i) the Department is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii) a draft of the regulations has been laid before, and approved by a resolution of, the Assembly, and

(b) no regulations may be made increasing the higher amount unless–

(i) the Department is satisfied that the increase is no greater than is required to maintain the value of the amount in real terms, or

(ii) the Assembly has at any time after 1st January 2010 passed a resolution that, with effect from a date specified in the resolution, the higher amount should be increased to an amount specified in the resolution, and the increase is an increase to the specified amount with effect from the specified date.

.

.

14.— Orders and regulations

(1) Subject to paragraph (2), regulations under any provision of this Order shall be subject to negative resolution.

(2) Paragraph (1) does not apply to–

(a) regulations to which Article 4(10) or (11)(a)(ii) or (b)(ii) applies, or

(b) regulations to which paragraph (3) applies.

(3) Regulations which contain (whether alone or with other provisions) provision made by virtue of Article 6(2) or 7 may not be made unless a draft of the regulations has been laid before, and approved by resolution of, the Assembly.

(4) Any order or regulations under this Order may contain such incidental, supplemental, saving or transitional provisions as the Department thinks fit.”


Footnotes:

1 Post-16 Education (Scotland) Bill available here: http://www.scottish.parliament.uk/S4_Bills/Post-16%20Education%20Bill/b18s4-introd.pdf

2 Post-16 Education (Scotland) Bill Delegated Powers Memorandum available here: http://www.scottish.parliament.uk/S4_Bills/DPM_Final_-_Post-16.pdf

3 Hanzala Malik dissented from this paragraph.

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.