Further and Higher Education (Scotland) Act 1992 (c. 37)

(The document as of February, 2008)

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(1) Where personal data are transferred under or by virtue of any provision of this Act to a body corporate established in pursuance of this Act, section 5(1) of the [1984 c. 35.] Data Protection Act 1984 (prohibition of unregistered holding etc. of personal data) shall not apply in relation to the holding by that body corporate of the data so transferred or any data of the same description as the data so transferred until the end of the period of six months beginning with the relevant date.

(2) In subsection (1) above, "the relevant date" means--

(a) in relation to a body corporate established in pursuance of section 11 of this Act, the first transfer date (within the meaning of Part I of this Act) or, if the body corporate was established under section 3, 13 or 14 of this Act the date appointed or, as the case may be specified, in the order establishing the body;

(b) in relation to a body established under Part II of this Act, the date on which the body was established.

(3) Expressions used in subsection (1) above and in the said Act of 1984 shall have the same meaning in that subsection as in that Act.

60 Regulations and orders

(1) Any power under this Act of the Secretary of State to make regulations or orders or of the Privy Council to make orders shall, subject to subsection (2) below, be exercisable by statutory instrument subject, other than an order made under section 63(2) of this Act, to annulment in pursuance of a resolution of either House of Parliament.

(2) Subsection (1) above shall not apply to an order made under section 14(4), 19(3) or 20(1) or of paragraph 18(4) of Schedule 2 to this Act.

(3) Regulations and orders made under this Act may make different provision as to different cases or circumstances; and such regulations or orders may contain such incidental, supplementary or transitional provision as the Secretary of State or, as the case may be, the Privy Council, think fit.

61 Interpretation

In this Act, unless the context otherwise requires--

"the 1980 Act" means the [1980 c. 44.] Education (Scotland) Act 1980; and
"prescribed" means prescribed by order or by regulations made by the Secretary of State.

62 Transitional provisions, miscellaneous amendments and repeals

(1) The transitional, consequential and saving provisions contained in Schedule 8 to this Act shall have effect.

(2) The enactments specified in Schedule 9 to this Act shall have effect subject to the amendments specified in that Schedule.

(3) The enactments specified in Schedule 10 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

63 Short title, commencement and extent

(1) This Act may be cited as the Further and Higher Education (Scotland) Act 1992.

(2) This Act shall come into force on such date as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different provisions or for different purposes.

(3) An order under subsection (2) above may make such transitional and saving provisions as appear to the Secretary of State necessary or expedient in connection with the provision brought into force by the order.

(4) Subject to subsection (5) below, this Act extends to Scotland only.

(5) The amendment by this Act of an enactment which extends to England and Wales or Northern Ireland extends also to England and Wales or, as the case may be, Northern Ireland.

SCHEDULES

Section 7.

SCHEDULE 1 The Scottish Further Education Funding Council

Status

1 The Funding Council shall not--

(a) be regarded as the servants or agents of the Crown;

(b) have any status, immunity or privilege of the Crown,

and their property shall not be regarded as property of, or held on behalf of, the Crown.

Tenure of office

2 (1) The Funding Council shall consist of not less than twelve nor more than fifteen members appointed by the Secretary of State, of whom one shall be so appointed as chairman.

(2) In appointing members of the Funding Council the Secretary of State --

(a) shall have regard to the desirability of including persons who appear to him to have experience of, and to have shown capacity in, the provision of further education (within the meaning of section 1(5)(b) of the 1980 Act) or to have held, and to have shown capacity in, any position carrying responsibility for the provision of such further education and, in appointing such persons, he shall have regard to the desirability of their being currently engaged in the provision of such further education or in carrying responsibility for such provision; and

(b) shall have regard to the desirability of including persons who appear to him to have experience of, and to have shown capacity in, industrial, commercial or financial matters or the practice of any profession.

House of Commons disqualification

3 In Part III of Schedule I to the [1975 c. 24.] House of Commons Disqualification Act 1975 (disqualifying offices) there is inserted at the appropriate place-- " Any member of the Scottish Further Education Funding Council in receipt of remuneration. "

Property and contracts

4 Subject to paragraphs 5 and 6 below, the Funding Council shall have the power--

(a) to acquire, hold and dispose of land and other property;

(b) to enter into contracts, including contracts for the employment of staff for the purposes of the discharge of their functions;

(c) to invest any sums not immediately required by the Funding Council for the purpose of their carrying on any of the activities which they have power to carry on; and

(d) to accept gifts of money, land or other property and apply it to, or hold or administer it in trust for, the purpose of the discharge of any of their functions.

5 The Funding Council shall not 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 which was acquired, improved or maintained wholly or partly, directly or indirectly out of funds provided by the Secretary of State under section 10 of this Act or from the proceeds of or any consideration for the disposal of any property so acquired, improved or maintained.

6 (1) The Funding Council shall not dispose of any property acquired, improved or maintained wholly or partly, directly or indirectly out of funds provided by the Secretary of State under the said section 10 or from the proceeds of or any consideration for the disposal of any property so acquired, improved or maintained without the prior consent, given in writing, of the Secretary of State.

(2) The consent of the Secretary of State may be given in respect of a particular disposal of property or of disposals of any class or description and may be given subject to such conditions as the Secretary of State may determine.

(3) The consent of the Secretary of State is not required for the disposal of land which is or forms part of property mentioned in sub-paragraph (1) above where the disposal is in consequence of the compulsory acquisition of such land by any authority in pursuance of any power of compulsory acquisition under any enactment; but the Funding Council shall inform the Secretary of State of any such compulsory acquisition.

(4) Where any such property is disposed of, the Funding Council shall pay to the Secretary of State such portion of the proceeds or value of the consideration for the disposal, after deduction of such expenses as appear to the Secretary of State to have been reasonably incurred in the disposal, as the Secretary of State may, after consultation with the Funding Council, determine.

Execution of documents

7 (1) For any purpose other than those mentioned in sub-paragraph (2) below, a document is validly executed by the Funding Council if it is signed on their behalf by a member of the Funding Council or by their secretary (or any person performing the duties of secretary to the Funding Council) or by any person authorised to sign the document on their behalf.

(2) For the purposes of any enactment or rule of law relating to the authentication of documents, a document is validly executed by the Funding Council if it is subscribed on their behalf by being executed in accordance with the provisions of sub-paragraph (1) above.

(3) A document which bears to have been executed by the Funding Council in accordance with sub-paragraph (2) above shall, in relation to such execution, be a probative document if the subscription of the document bears to have been attested by at least one witness.

Reports and accounts

8 The Funding Council 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.

9 (1) It shall be the duty of the Funding Council--

(a) to keep proper accounts and proper records in relation to the accounts;

(b) to prepare in respect of each financial year of the Funding Council a statement of accounts; and

(c) to send copies of the statement to the Secretary of State and to the Comptroller and Auditor General before the end of the month of August next following the financial year to which the statement relates.

(2) The statement of accounts shall comply with any directions given by the Secretary of State with the approval of the Treasury as to--

(a) the information to be contained in it;

(b) the manner in which the information contained in it is to be presented; or

and shall contain such additional information as the Secretary of State may with the approval of the Treasury require to be provided for the information of Parliament.

(3) The Comptroller and Auditor General shall examine, certify and report on each statement received by him in pursuance of this paragraph and shall lay copies of each statement and of his report before each House of Parliament.

(4) In this paragraph "financial year" means the period beginning with the date on which the Funding Council is established and ending with the second 31st March following that date, and each successive period of twelve months.

Additional provisions

10 An order made under section 7 of this Act may contain such additional provisions--

(a) relating to the membership, staff and proceedings of the Funding Council (including any committee of them);

(b) relating to salaries, pensions, allowances and any other payments to be paid to members of the Funding Council (including any such committee) and to staff; and

as the Secretary of State may consider necessary or expedient.

11 Employment with the Council shall be included among the kinds of employment to which a scheme under section 1 of the [1972 c. 11.] Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed), at the end of the list of "Other Bodies" there is inserted-- " Scottish Further Education Funding Council. "

Section 12.

SCHEDULE 2 Constitution and proceedings of boards of management

Status

1 A board of management (in this Schedule referred to as "the board") shall not--

(a) be regarded as the servants or agents of the Crown;

(b) have any status, immunity or privilege of the Crown,

and their property shall not be regarded as property of, or held on behalf of, the Crown.

Membership

2 The board shall consist of not less than ten nor more than sixteen persons.

3 (1) Subject to paragraph 4 below, this paragraph shall have effect as regards the membership of the board.

(2) The board shall include--

(a) the person who is, for the time being, the principal of the college;

(b) a person appointed by being elected by the teaching staff of the college from among their own number;

(d) a person appointed by being nominated by the students' association of the college from among students of the college.

(3) Not less than one half of the total number of members of the board shall be appointed by the board from among persons, not being members of the staff or full-time students of the college, appearing to them to have experience of, and to have shown capacity in, industrial, commercial or employment matters or the practice of any profession; and one such person shall be a person nominated by the local enterprise company for the area in which the college is located.

(4) The remaining members shall be appointed by the board from among persons appearing to them to have, or to represent persons who have, an interest in the work of the college, having regard to the interests of the education authority for the area in which the college is situated in relation to the provision of any form of further education in their area.

(5) In this paragraph, "local enterprise company" means any person with whom an agreement (not being one which has terminated) has been made in pursuance of section 19 of the [1990 c. 35.] Enterprise and New Towns (Scotland) Act 1990 by Scottish Enterprise or Highlands and Islands Enterprise for the discharge by that person of any of the functions of Scottish Enterprise or, as the case may be, Highlands and Islands Enterprise.

(6) Any election to be held in pursuance of this paragraph shall be conducted in accordance with rules made by the board after consultation with such persons as appear to the board to be representative of each category of persons entitled to elect a person under this paragraph; and rules made in accordance with this sub-paragraph may be substituted or varied by further such rules.

4 (1) This paragraph shall have effect as regards the membership of the board with effect from the first transfer date.

(2) The persons who are, immediately before the first transfer date, the members of the college council for a college of further education by virtue of Schedule 6 to this Act shall become, on that date, the first members of the board of management of the college.

(3) Where a person becomes a member of the board in pursuance of sub-paragraph (2) above, he shall be taken to have become a member of the board in pursuance of the provision of paragraph 3 above in accordance with which, by virtue of paragraph 1 of Schedule 6 to this Act, he became a member of the college council.

(4) Where the number of persons who become the first members of the board in pursuance of sub-paragraph (2) above is less than sixteen, the board may appoint, in accordance with and having regard to the requirements of paragraph 3 above, such additional members as appears to them to be appropriate; provided that the total number of members of the board shall not at any time exceed sixteen.

(5) As soon as is practicable after the first transfer date and any appointment made under sub-paragraph (4) above, the members of the board shall determine by agreement among them, or failing agreement by ballot, that the persons who occupy the positions on the board mentioned in sub-paragraph (6) below shall hold office for a period of two years.

(6) The positions referred to in sub-paragraph (5) above are seven positions (other than the positions held by the principal and the person appointed by being nominated by the students' association of the college), whether or not at the time the board makes its determination any or all of such positions are occupied, identified in such manner as the board may so determine.

Qualifications and tenure of office

5 (1) Subject to this paragraph and paragraphs 6 to 10 below, a member of the board shall hold and vacate office in accordance with the terms of his appointment, and, on such appointment ceasing, shall be eligible for re-appointment.

(2) Subject to paragraph 4(5) above, a member of the board, other than the person who is, for the time being, the principal of the college and the person appointed by being nominated by the students' association of the college, shall hold office for a period of four years.

(3) The person who is, for the time being, the principal of the college shall remain a member of the board while he is the principal; and nothing in paragraphs 6 to 9 below shall apply to the principal in his capacity as a member of the board.

(4) A person who is appointed by being nominated by the students' association of the college shall hold office until 31st August following his appointment.

(5) A member of the board, other than the principal of the college, may resign his office at any time by giving notice in writing to such person as the board may appoint for the purpose.

6 (1) A person shall not be eligible for appointment as a member of the board--

(a) at any time when he is under the age of sixteen or over the age of seventy; but a person who attains the age of seventy during his appointment shall be entitled to remain in office until his term of office otherwise expires in accordance with this Schedule; or

(b) where the total number of years of any previous terms of office (whether or not consecutive) served as a member of that board exceeds eight.

(2) For the purposes of sub-paragraph (1)(b) above, in calculating the number of years served no account shall be taken of any term of office served as a member of a college council.

7 (1) A person is not eligible for appointment as a member of the board if--

(a) he has, within five years of the date his appointment would take effect, been convicted in the United Kingdom, the Channel Islands, the Isle of Man or the Irish Republic of any offence and has had passed on him a sentence of imprisonment (whether suspended or not) for a period of not less than three months without the option of a fine;

(b) his estate has been sequestrated, he has made an arrangement with his creditors, he has been adjudged bankrupt, he has granted a trust deed for his creditors or a composition contract;

(d) he has been removed from office by the Secretary of State under section 24 of this Act.

(2) Where a person is disqualified under sub-paragraph (1)(b) above by reason of having had his estate sequestrated, the disqualification shall cease if and when--

(a) the sequestration of his estate is recalled or reduced; or

(b) he is discharged under or by virtue of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985.

(3) Where a person is disqualified under that sub-paragraph by reason of having been adjudged bankrupt, the disqualification shall cease--

(a) unless the bankruptcy order made against him is previously annulled, on his discharge from bankruptcy; and

(b) if the bankruptcy order is so annulled, on the date of the annulment.

(4) Where a person is disqualified under that sub-paragraph by reason of his having made an arrangement with his creditors or granted a trust deed for his creditors or a composition contract, the disqualification shall cease when the arrangement or, as the case may be, trust deed or composition contract is no longer in force.

8 If at any time the board are satisfied that any of their members--

(a) has been convicted as mentioned in sub-paragraph (a) of paragraph 7(1) above or has become a person to whom either of sub-paragraphs (b) and (c) of paragraph 7(1) above applies;

(b) has been absent, without the permission of the board, from all meetings of the board or any committee of theirs to which he has been appointed for a period longer than six consecutive months; or

(c) having been appointed in pursuance of paragraph 3(3) above, becomes a full-time student of the college or a member of the staff of the college,

the board shall, by notice given in writing to that person, remove him from office; and thereupon the office shall become vacant.

9 If at any time the board are satisfied that any of their members--

(a) has failed to comply with any requirement of paragraph 14 or 15 below; or

(b) having been appointed by reason of being a student of the college or a member of the staff of the college, ceases to be such student or member of staff; or

(c) without prejudice to paragraph 8 above, has become unable or unfit to discharge his functions as a member of the board,

the board may, by notice given in writing to that person, remove him from office; and thereupon the office shall become vacant.

10 (1) Any casual vacancy among the members of the board may be filled by their appointing a person to fill the vacancy in like manner to that by which the person to be replaced was appointed.

(2) Notwithstanding paragraph 5 above, a person appointed in pursuance of this paragraph shall hold office until the expiry of the period of office of the person he was appointed to replace.

Proceedings

11 (1) Subject to paragraphs 12 to 14 below, the board may regulate their own proceedings and those of any committee appointed by them.

(2) The validity of any proceedings of the board or of any committee appointed by them shall not be affected by any defect in the appointment of any member of the board or any member of such committee or by a vacancy amongst the members of the board.

(3) Subject to sub-paragraph (5) below, the board shall make available for inspection at the college at all reasonable times by anyone who wishes to inspect them copies of the documents to which this sub-paragraph applies.

(4) The documents to which sub-paragraph (3) above applies are--

(a) the agenda for any meeting of the board or of any committee of theirs;

(b) the draft minutes of any such meeting as approved by the chairman of the meeting;

(d) any report or other document considered by such meeting.

(5) Sub-paragraph (3) above shall not apply to any document or part thereof which relates to--

(a) an employee, former employee or applicant for employment in relation to the college;

(b) a person who is, has been, or is likely to be a student of the college;

(c) any information the disclosure of which is prohibited by anything in any enactment (including this Act and an enactment contained in a subordinate instrument) or rule of law;

(d) anything which it appears to the board should be treated as confidential because of its commercial nature or otherwise.

Chairman

12 (1) The board shall appoint one of their members, not being a person who is--

(a) a student of the college;

(b) an employee of the board;

(d) a member (whether elected or appointed) or an employee of a local authority,

to be chairman.

(2) The board shall determine the period of appointment of the chairman and may remove him from office as chairman.

(3) Where the chairman ceases to be a member of the board, he shall cease to be chairman.

Committees

13 (1) The board may establish committees for any purpose and any such committee may appoint sub-committees.

(2) Such committees may include persons who are not members of the board; but such persons shall not be entitled to vote at meetings of a committee.

(3) The principal of the college shall be entitled to attend and speak at any meeting of a committee of the board; but he shall be entitled to vote at such meeting only if he is a member of such committee.

(4) The board may pay to the members of such committees (whether or not they are also members of the board) such allowances and expenses as they may determine; and any allowances and expenses to be paid by virtue of this sub-paragraph shall be calculated by reference to such criteria as the Secretary of State may determine.

(5) Any reference in this Schedule to a committee of the board shall include a reference to any sub-committee appointed by such committee.

Conflict of interest

14 (1) Subject to sub-paragraph (4) below, where, whether before or during any meeting of the board or any committee of theirs, any member of the board or of such committee becomes aware that he or any person connected with him has a material interest in or relating to any matter to be or being considered by the board or, as the case may be, the committee, he shall declare such interest and withdraw from the meeting during such consideration and shall not vote on any question relating to the matter.

(2) Notwithstanding sub-paragraph (1) above, where in relation to any member of the board or of a committee mentioned in sub-paragraph (3) below any matter referred to in that sub-paragraph is to be considered by any meeting of the board or any committee of theirs he shall, unless invited to remain by resolution of the other members of the board present, withdraw from the meeting during such consideration and shall not vote on any question relating to the matter.

(3) The members of the board mentioned in sub-paragraph (2) above in relation to particular matters are--

(a) the principal of the college in relation to his terms and conditions of employment, his suspension or dismissal or any other disciplinary measure relating to him and the appointment of his successor;

(b) a member of the staff of the college in relation to his terms and conditions of employment, the terms and conditions of employment of any group of employees of the college to which he belongs, his promotion, suspension or dismissal or any other disciplinary measure relating to him; and

(c) a student of the college in relation to his academic performance, any disciplinary measures relating to him or the terms and conditions of employment, appointment, promotion, suspension or dismissal of or any other disciplinary measure relating to any employee of the college.

(4) Subject to sub-paragraph (3) above, nothing in this paragraph shall require the principal or a member of staff or student to declare an interest or withdraw from consideration of any matter where his interest exists only by reason of his being the principal or, as the case may be, a member of staff or student.

(5) Section 346(2) of the [1985 c. 6.] Companies Act 1985 (meaning of "connected person") shall apply for the purpose of determining whether a person is connected with a member of the board or, as the case may be, a member of any committee of theirs as it applies for the purpose of determining whether a person is connected with a director of a company; and for such purpose references in that section to a director of a company shall be construed as if they were references to a member of the board or, as the case may be, member of such committee.

Confidentiality of information

15 Any information which is received or obtained by any person in connection with his functions as a member of the board or a member of a committee established under paragraph 13 above on the basis that such information shall be treated as confidential shall be treated by him as confidential to the board or, as the case may be, the committee.

Staff

16 Subject to section 15 of this Act, the board may appoint on such terms and conditions as they may determine such employees as they think fit.

17 (1) The board may, in the case of such of its employees or former employees as they may, subject to sub-paragraph (2) below, determine--

(a) pay such pensions, allowances or gratuities to or in respect of those employees;

(b) make such payments towards provision of such pensions, allowances or gratuities; or

(c) make such arrangements for the provision and maintenance of such schemes (whether contributory or not) for the payment of such pensions, allowances or gratuities,

as they think fit.

(2) Sub-paragraph (1) above shall not apply to any person who becomes an employee of the board under or by virtue of any provision of this Act (other than paragraph 16 above) unless that person, by notice given in writing, informs the board that he wishes it so to apply.

(3) The reference in sub-paragraph (1) above to pensions, allowances or gratuities in respect of employees of the board includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of office or employment.

Accounts

18 (1) It shall be the duty of the board to keep proper accounts and other records.

(2) The accounts shall be prepared and audited in respect of each financial year in such manner as the Secretary of State may direct and the accounts shall be submitted to the Secretary of State as soon as practicable after the end of each financial year.

(3) The financial year of the board shall be from 1st April to 31st March.

(4) The Secretary of State may by order provide that the board shall have a different financial year, and an order under this sub-paragraph may make such consequential provision as appears to the Secretary of State to be necessary or expedient.

19 The accounts of the board shall be open to the inspection of the Comptroller and Auditor General, but--

(a) the power conferred by this paragraph; and

(b) the powers under sections 6 and 8 of the [1983 c. 44.] National Audit Act 1983 (examinations into the economy, efficiency and effectiveness of certain bodies and access to documents and information) conferred on the Comptroller and Auditor General by virtue of section 6(3)(c) of that Act,

shall be exercisable only in, or in relation to accounts or other documents which relate to, any financial year in which expenditure is incurred by the board in respect of which grants, loans or other payments are made to them under this Part of this Act.

Execution of documents

20 (1) For any purpose other than those mentioned in sub-paragraph (2) below, a document is validly executed by the board if it is signed on their behalf by a member of the board or by their secretary (or any person performing the duties of secretary to the board) or by any person authorised to sign the document on their behalf.

(2) For the purposes of any enactment or rule of law relating to the authentication of documents, a document is validly executed by the board if it is subscribed on their behalf by being executed in accordance with the provisions of sub-paragraph (1) above.

(3) A document which bears to have been executed by the board in accordance with sub-paragraph (2) above shall, in relation to such execution, be a probative document if the subscription of the document bears to have been attested by at least one witness.

Provision of services

21 The [1970 c. 39.] Local Authorities (Goods and Services) Act 1970 (supply of goods and services by local authorities to certain public bodies) shall have effect as if the board were a public body within the meaning of that Act.

Section 16.

SCHEDULE 3 Transfer and apportionment of property

Identification of land, other property, rights, liabilities and obligations

1 (1) In respect of each college of further education prescribed under section 11 of this Act, the education authority and the college council shall, not later than the first transfer date, so far as practicable, arrive at such written agreements and execute such other instruments as are necessary or expedient--

(a) to identify or define the land, other property, rights, liabilities and obligations to be transferred to and vest in the board of management for the college under section 16 of this Act; or

(b) for making any arrangements such as are mentioned in paragraph 2(2) below as will afford to the authority and the board as against each other such rights and safeguards as they may require for the proper discharge of their respective functions.

(2) Any such agreement shall contain provision so far as is expedient to enable the creation, variation or extinction of interests in land or land obligations and for the granting of indemnities.

(3) The education authority shall supply the college council of such a college with such information, including all documents relating to interests in land and land obligations, as the college council may require for the purposes of this Schedule.

(4) Where no such agreement is arrived at before the first transfer date, the Secretary of State may prescribe a different date by which such an agreement is to be arrived at, and an agreement arrived at in pursuance of this sub-paragraph shall be between the education authority and the board of management for the college and, for the purposes of an agreement arrived at in pursuance of this sub-paragraph, references in this Schedule to the college council shall be construed as references to the board of management.

(5) In this paragraph "land obligations" has the same meaning as in section 1(2) of the [1970 c. 35.] Conveyancing and Feudal Reform (Scotland) Act 1970.

2 (1) The land, other property, rights, liabilities and obligations mentioned in section 16(3) or (4) of this Act shall, where their nature permits, be divided or apportioned among the education authority and the board of management of any college for the purposes of which the land or property was held, used or obtained or, as the case may be, in relation to which the rights, liabilities or obligations subsisted in such proportions as may be appropriate.

(2) Any land or right in relation to land, other property, right, liability or obligation the nature of which does not permit its division or apportionment shall be transferred to the board of management of such a college or retained by the education authority according to--

(a) in the case of land or a right in relation to land, which of the education authority or the board of management of any such college appears, as at the first transfer date, to be likely to experience the greatest practical difficulty through not having possession of that land or, as the case may be, not being able to exercise the right, or where none of them appears likely to experience such difficulty to a greater extent than any other, which of them appears on that date to be likely to make use of the land or right to the greatest extent; or

(b) in the case of any other property or of any right, liability or obligation, which of them appears on the first transfer date to be likely to make use of the property or right or, as the case may be, to be affected by the liability or obligation to the greatest extent,

subject (in either case) to such arrangements for the protection of any party to which the land or other property or right, liability or obligation has not been transferred as may be agreed between the education authority and the college council for any such college or determined by the commissioner for further education assets under paragraph 4 below.

(3) Where any land or any right relating to land falls to be divided or apportioned under sub-paragraph (1) above any rent payable by or to any party in respect of that land and any rates, feuduties, stipend or other outgoings running with the land or right shall be correspondingly divided or apportioned.

Status of agreements etc. under paragraph 1

3 (1) An agreement made under paragraph 1 above or any other instrument executed in pursuance of that paragraph shall be conclusive evidence of the matters contained therein.

(2) No application for the rectification of such an agreement or instrument may be made to the court under section 8 of the [1985 c. 73.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by an education authority or a college council who were a party to such an agreement or instrument without the prior consent, given in writing, of the Secretary of State.

Resolution of disputes

4 (1) Where it appears to an education authority or a college council that it is unlikely, in the case of any matter in respect of which an agreement is required to be arrived at under paragraph 1 above, that an agreement will be arrived at, the authority or college council may refer the matter to the Secretary of State.

(2) Where a matter is so referred, the Secretary of State shall appoint a commissioner for further education assets (in this Schedule referred to as "the commissioner") who shall, after consulting the education authority and any person whom he considers to have an interest in becoming vested in any property, right, liability or obligation to which such an agreement is intended to relate, determine the matter.

(3) The commissioner shall issue a written determination to the education authority and any college council required to arrive at such an agreement and may include in such determination any provision which could have been included in an agreement or other instrument made under or in pursuance of paragraph 1 above.

(4) A determination made under this paragraph shall have effect for all purposes as if it were an agreement made under paragraph 1 above.

(5) No application for the rectification of a determination under this paragraph may be made to the court under section 8 of the [1985 c. 73.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by the commissioner or by an education authority or a college council who are affected by the determination without the prior consent, given in writing, of the Secretary of State.

(6) The education authority shall provide the commissioner with such information, including all documents relating to interests in land or land obligations, as he may require for the purpose of the exercise of his functions under this paragraph.

Right to production of documents of title

5 (1) Where any land or other property is, or rights, liabilities or obligations are, transferred to and vest in the board of management of any college under section 16 of this Act, the education authority shall deliver to the board of management all documents of title relating solely to such land or other property and all documents relating solely to such rights, liabilities or obligations.

(2) Without prejudice to sub-paragraph (1) above, the board of management of any college to whom any land or other property has, or rights, liabilities or obligations have, been transferred in accordance with section 16 of this Act shall be entitled at any time to require any person having possession of any document of title or other document relating to such land, other property, rights, liabilities or obligations to produce to them such documents.

(3) No charge may be made in respect of anything done in pursuance of this paragraph.

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