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

(The document as of February, 2008)

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Third parties affected by vesting

6 (1) Any transfer of land or other property, rights, liabilities or obligations from an education authority to the board of management of any college under section 16 of this Act and any subsequent transfer of such land, other property, rights, liabilities or obligations shall be binding on all other persons.

(2) Where any such transfer to the board of management of a college has an effect on the rights, liabilities or obligations of a third party--

(a) in the case of a transfer to which paragraph 1 above applies, the education authority; and

(b) in the case of a transfer to which paragraph 4 above applies, the commissioner,

shall give notice in writing to the third party of such transfer.

(3) Where, in consequence of any transfer such as is mentioned in sub-paragraph (1) above or the effect of any of the provisions of this Schedule--

(a) the rights, liabilities or obligations of any person other than the education authority or any board of management which were enforceable against or by the authority become enforceable against the board of management mentioned in that sub-paragraph or partly against the authority and partly against the board of management of one or more colleges; and

(b) the value of any property or interest of that person is thereby diminished,

such compensation as may be just shall be paid to that person by the authority or the board of management of, as the case may be, one or more colleges or by all or any of them.

(4) Any dispute as to whether, and if so how much, compensation is to be paid under sub-paragraph (3) above, or as to the person to or by whom it is to be paid, shall be referred to and determined by an arbiter appointed by the Lord President of the Court of Session.

Failure to agree or to apply to Secretary of State under paragraph 4 above

7 Where the education authority and the college council have failed to arrive at an agreement under paragraph 1 above not later than the first transfer date and neither of them has applied to the Secretary of State under paragraph 4 above, the Secretary of State may appoint a commissioner as if an application had been made to him under the said paragraph 4.

Section 16.

SCHEDULE 4 Commissioners for further education assets

Appointment and tenure

1 The appointment of a commissioner for further education assets (in this Schedule referred to as "the commissioner") in pursuance of section 17(4) of or paragraph 4 of Schedule 3 to this Act, shall be in writing and shall specify the matters or class or classes of matters in respect of which he is appointed to make a determination.

2 Subject to paragraphs 4 and 5 below, the commissioner's appointment shall come to an end when it appears to the Secretary of State that he has determined the matters or class or classes of matters to which his appointment relates.

3 The Secretary of State shall pay to the commissioner such remuneration as the Secretary of State thinks appropriate and any expenses reasonably incurred by him in carrying out his functions.

4 The commissioner may resign his office at any time by giving notice in writing to the Secretary of State.

5 The Secretary of State may, if it appears to him that the commissioner is unable or unfit to discharge his functions, terminate the commissioner's appointment by giving notice in writing to him of such termination.

Functions

6 The commissioner may, with the prior consent, given in writing, of the Secretary of State, employ persons on such terms as the commissioner may determine to assist him in the performance of his functions.

7 The commissioner shall comply with any directions given to him by the Secretary of State in relation to the performance of his functions.

8 The commissioner shall not delegate any of his functions.

Status

9 The commissioner shall not be regarded as a servant or agent of the Crown, nor as enjoying any status, immunity or privilege of the Crown.

Section 34.

SCHEDULE 5 Transitional provisions for college councils

Contracts of employment

1 (1) The college council shall have power to enter into a contract of employment--

(a) which is to take effect from a date on or after the first transfer date; or

(b) with a person employed by them only for or in connection with their functions relating to the transfer of the management of the college from the education authority to the board of management.

(2) Where the college council enter into a contract of employment with any person such as is mentioned in sub-paragraph (1)(a) above, the contract shall have effect in all respects as if made between the board of management and that person.

Information

2 (1) The education authority shall provide the college council with all information which the college council may reasonably require for the purpose of the exercise of the college council's functions under this Part of this Act, including, in particular, such information as it is required to provide to a board of management under section 11 of this Act.

(2) The college council shall make such reports or returns and give such information to the Secretary of State as he may require for the purpose of the exercise of his powers and the performance of his duties under this Part of this Act.

Payment of grants by Secretary of State

3 (1) The Secretary of State may make grants to a college council in respect of any expenditure incurred by them in pursuance of their functions under this Part of this Act in connection with the transfer of the management of their college from the education authority to the board of management.

(2) Grants made under this paragraph may be made subject to such conditions as the Secretary of State thinks appropriate and such conditions--

(a) may relate to any time, whether before or after the payment of the grant; and

(b) may be imposed before, after or at the time the grant is made.

(3) The terms and conditions on which the Secretary of State may make any grants under this paragraph may include in particular conditions--

(a) enabling him to require the repayment, in whole or in part, of sums paid by him if any other condition subject to which the sums were paid is not complied with; and

(b) requiring the payment of interest in respect of any period during which a sum due to him in accordance with any other condition remains unpaid,

but shall not relate to the application by the college council to which the grant is made of any sums derived otherwise than from the Secretary of State.

(4) A condition imposed in pursuance of sub-paragraph (2) above shall not have effect as regards anything done, or omitted to have been done, before the date the condition was imposed.

Directions

4 (1) The Secretary of State may give college councils directions of a general or specific character with regard to the discharge of their functions under this Part of this Act; and it shall be the duty of every college council to whom such directions are given to comply with the directions.

(2) A direction given under this paragraph--

(a) may be varied or revoked by a subsequent direction so given;

(b) may be addressed to one or more than one college council.

Allowances

5 College councils may pay to their members in respect of the exercise of their functions under this Part of this Act such allowances as are payable to members of the board of management of a college of further education under this Part of this Act.

College development plans

6 Regulation 13(1)(a) of The [S.I. 1990/1637.] College Councils (Scotland) (No. 2) Regulations 1990 (requirement on college councils to submit college development plans) shall not have effect as regards any requirement on a college council to prepare or submit a college development plan before the beginning of the financial year beginning on 1st April 1993.

Accounts

7 (1) It shall be the duty of the college council to keep proper accounts and other records.

(2) The accounts shall be prepared and audited in respect of the transitional period in such manner as the Secretary of State may direct and the accounts shall be submitted to the Secretary of State by the board of management of the college as soon as is practicable after the end of that period.

(3) The accounts of the college council shall be open to the inspection of the Comptroller and Auditor General.

Continuity of exercise of functions

8 (1) Any relevant thing done by or in relation to the college council for a college of further education before the date appointed in relation to that college for the purposes of section 11(1) of this Act shall, so far as is required for continuing its effect on and after that date, have effect as if done by or in relation to the board of management of the college.

(2) Any relevant thing which, immediately before that date, is in the process of being done by or in relation to the college council for a college of further education may be continued by or in relation to the board of management of the college.

(3) In this paragraph "relevant" in relation to anything done by or in relation to the college council for a college before that date means anything which, if it were to be done on or after that date, would be done by or in relation to the board of management of the college.

Establishment of students' associations

9 (1) Where, at the beginning of the transitional period, there is no students' association established for the students of the college, the college council shall, as soon as is practicable after that date (after consultation with such persons as appear to them to be representative of students of the college), make a scheme for the establishment of a students' association for students of the college.

(2) The primary function of a students' association of a college established under this paragraph shall be to represent the interests of students of such college.

(3) A scheme made under sub-paragraph (1) above shall include provision as to--

(a) the date on which the scheme is to come into effect, being a date not later than the day immediately before the first transfer date; and

(b) the initial composition and constitution of the students' association.

Status

10 The college 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.

Section 34.

SCHEDULE 6 Transitional composition of college councils

Membership of college councils

1 (1) Subject to sub-paragraph (2) below, during the transitional period, the composition of the college council for the college shall be determined in accordance with paragraphs 2 and 3 of Schedule 2 to this Act.

(2) In the application of the said paragraphs of Schedule 2 to membership of a college council--

(a) any reference to the board--

(i) in paragraphs 2 and 3(1), (2) and (6) and in paragraph 3(3) where such reference first occurs shall be construed as a reference to the college council; and

(ii) in paragraph 3(3) where such reference second occurs and in paragraph 3(4) shall be construed as a reference to the Secretary of State; and

(b) the rules to be made under the said paragraph 3(6) shall be made as soon as is practicable after the date prescribed in relation to the college for the purposes of section 34(3) of this Act.

(3) If the number of persons who become members of the college council in pursuance of this paragraph is less than 12, the college council may appoint in accordance with the said paragraph 3 such additional members as they consider appropriate; provided that the total number of members appointed to the council does not at any time exceed 16.

Terms of appointment

2 (1) Subject to the following provisions of this Schedule, a person who becomes a member of a college council in pursuance of paragraph 1 above shall hold and vacate office in accordance with the terms of his appointment.

(2) A member of a college council, other than the principal of the college, may resign his office at any time by giving notice in writing to the Secretary of State.

Eligibility for appointment

3 (1) A person shall not be eligible for appointment to a college council 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.

(2) A person is not eligible for appointment to a college council 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; or

(3) Where a person is disqualified under sub-paragraph (2)(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.

(4) 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.

(5) 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.

(6) Nothing in this paragraph or in paragraphs 4 and 5 below shall apply to the principal of the college in his capacity as a member of the college council.

Disqualification from appointment

4 If at any time the college council are satisfied that any member of the council--

(a) has been convicted as mentioned in sub-paragraph (a) of paragraph 3(2) above or has become a person to whom either of sub-paragraphs (b) or (c) of paragraph 3(2) above applies; and

(b) has been absent, without the permission of the council, from all meetings of the council or any of their committees to which the member has been appointed for a period longer than six consecutive months,

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

5 If at any time the college council are satisfied that any member of the council--

(a) has failed to comply with any of the provisions of regulation 9(2) (conflict of interest) or 9(7) (confidentiality of information) of The [S.I. 1990/1637.] College Council (Scotland) (No. 2) Regulations 1990 (provisions as to the composition of college councils);

(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 4 above, has become unable or unfit to discharge his functions as a member of the council,

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

Casual vacancy

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

(2) Notwithstanding paragraph 2 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.

Section 37.

SCHEDULE 7 The Scottish Higher Education Funding Council

Supplementary powers

1 (1) Subject to sub-paragraph (2) below, the Council may do anything which appears to them to be necessary or expedient for the purpose of or in connection with the discharge of their functions, including in particular--

(a) acquiring and disposing of land and other property;

(b) entering into contracts;

(d) accepting gifts of money, land or other property.

(2) The Council shall not borrow money.

Chief officer

2 (1) One of the members of the Council shall be the chief officer.

(2) The first chief officer shall be appointed as such by the Secretary of State and shall hold and vacate office in accordance with the terms of his appointment.

(3) Each subsequent chief officer shall be appointed by the Council with the approval of the Secretary of State on such terms and conditions (including terms with respect to tenure and vacation of office) as the Council may, with the approval of the Secretary of State, determine.

(4) On approval by the Secretary of State of the person to be appointed on any occasion as chief officer of the Council and the terms and conditions of his appointment, the Secretary of State shall--

(a) if that person is not already a member of the Council, appoint him as a member for the same term as the term of his appointment as chief officer; or

(b) if he is already such a member but his term of appointment as such ends before the term of his appointment as chief officer ends, extend his term of appointment as a member so that it ends at the same time as the term of his appointment as chief officer.

Tenure of members of the Council

3 (1) A person shall hold and vacate office as a member or as chairman or chief officer of the Council in accordance with the terms of his appointment and shall, on ceasing to be a member, be eligible for re-appointment.

(2) A person may at any time by notice given in writing to the Secretary of State resign his office as a member or as chairman of the Council.

4 If the Secretary of State is satisfied that a member of the Council--

(a) has been absent from meetings of the Council for a period longer than six consecutive months without the permission of the Council; or

(b) is unable or unfit to discharge the functions of a member,

the Secretary of State may by notice given in writing to that member remove him from office; and thereupon the office shall become vacant.

Salaries, allowances and pensions for members

5 (1) The Council--

(a) shall pay to their members such salaries or fees, and such travelling, subsistence or other allowances, as the Secretary of State may determine; and

(b) shall pay, or make such payments towards the provision of, such pensions to or in respect of any of their members as the Secretary of State may determine.

(2) If a person ceases to be a member of the Council and it appears to the Secretary of State that there are special circumstances which make it right that he should receive compensation, the Secretary of State may direct the Council to make to that person a payment of such amount as the Secretary of State may determine.

(3) A determination or direction of the Secretary of State under sub-paragraph (1) or (2) above requires the approval of the Treasury.

House of Commons disqualification

6 In Part III of Schedule 1 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 Higher Education Funding Council in receipt of remuneration. "

Staff

7 (1) The Council may appoint such employees as they think fit.

(2) The Council shall pay to their employees such remuneration and allowances as the Council may determine.

(3) The employees shall be appointed on such other terms and conditions as the Council may determine.

(4) A determination under sub-paragraph (2) or (3) above requires the approval of the Secretary of State given with the consent of the Treasury.

(5) 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 Higher Education Funding Council. "

(6) The Council shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to sub-paragraph (5) above in the sums payable out of money provided by Parliament under that Act.

(7) If an employee of the Council becomes a member of the Council and was by reference to his employment by the Council a participant in a pension scheme such as is mentioned in sub-paragraph (5) above--

(a) the Council may determine that his service as a member shall be treated for the purposes of the scheme as service as an employee of the Council whether or not any benefits are to be payable to or in respect of him by virtue of paragraph 5 above; but

(b) if the Council determine as aforesaid, any discretion as to the benefits payable to or in respect of him which the scheme confers on the Council shall be exercised only with the consent of the Secretary of State given with the approval of the Treasury.

Committees

8 (1) The Council may establish a committee for any purpose.

(2) The number of the members of a committee established under this paragraph, and the terms on which they are to hold and vacate office, shall be fixed by the Council.

(3) Such a committee may include persons who are not members of the Council.

(4) The Council shall pay to the members of such committees (whether or not they are also members of the Council) such travelling, subsistence or other allowances as the Secretary of State may determine.

(5) The Council shall keep under review the structure of committees established under this paragraph and the scope of each committee's activities.

Delegation of functions

9 The Council may authorise the chairman, the chief officer or any committee established under paragraph 8 above to exercise such of their functions as they may determine.

Proceedings

10 Without prejudice to any other rights the Secretary of State may require to be accorded to him as a condition of any grants made to the Council under this Act--

(a) a representative of the Secretary of State shall be entitled to attend and take part in any deliberations (but not in decisions) at meetings of the Council or of any committee of the Council; and

(b) the Council shall provide the Secretary of State with such copies of any documents distributed to members of the Council or of any such committee as he may require.

11 The validity of any proceedings of the Council or of any committee of the Council shall not be affected by a vacancy among the members or by any defect in the appointment of a member.

12 Subject to the preceding provisions of this Schedule, the Council may regulate their own procedure and that of any of their committees.

Execution of documents

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

Accounts

14 (1) It shall be the duty of the 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 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 referred to in sub-paragraph (1)(b) above 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 Council is established and ending with the second 31st March following that date, and each successive period of twelve months.

Status of the Council

15 The 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.

Section 62.

SCHEDULE 8 Transitional, consequential and saving provisions

Part I Provisions relating to Part I of this Act

Supply of services

1 (1) Where, in relation to any college of further education--

(a) there is in existence at the first transfer date an arrangement whereby any defined activity (being functional work) is undertaken by a local authority which is the education authority responsible, immediately before the first transfer date, for the management of the college;

(b) each of the six conditions is fulfilled; and

the arrangement shall be binding, as from the first transfer date, on the board of management of the college and may be enforced by the board or, as the case may be, the local authority as if it were a contract between them for the performance of the defined activity.

(2) In the enforcement of any arrangement as mentioned in sub-paragraph (1) above, any provision under the arrangement in pursuance of section 8(3) of the [1988 c. 9.] Local Government Act 1988 for items to be credited or, as the case may be, debited to any account shall be taken to be a requirement on the local authority or, as the case may be, the board to make payments corresponding to such provision.

(3) In this paragraph--

"defined activity" means a defined activity for the purposes of Part I of the Local Government Act 1988;
"local authority" has the same meaning as in section 1(3)(a) of that Act; and
"the six conditions" are the conditions referred to in section 6(1) of that Act.

Appointment of staff by education authority

2 Without prejudice to section 30 of this Act, with effect from such date as the Secretary of State may appoint in relation to a college of further education under section 34 of this Act, the education authority under whose management the college is shall not enter into a contract of employment relating to the employment of any person wholly or mainly for or in connection with the purposes of such college if the contract is to take effect on or after the first transfer date.

General

3 (1) The Secretary of State may by order make such consequential modifications of any provision of any local or private Act passed, or subordinate legislation made, before the first transfer date which refers to the college council for any college of further education as appear to him to be necessary or expedient.

(2) The Secretary of State may, in relation to any particular functions of college councils, by order exclude, modify or supplement any provision of this Schedule, section 34 of and Schedules 3 and 5 to this Act and may make such other transitional provision as he considers necessary or expedient.

(3) Nothing in this paragraph shall apply in relation to contracts of employment made by an education authority.

Part II Provisions relating to Part II of this Act

Saving for regulations under section 77 of the 1980 Act

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