Office of Public Sector Information
PART 1 continued
(3) In exercising its functions, the Council is to have regard to the—
(a) United Kingdom context; and
(b) international context,
in which any of the fundable bodies may carry on their activities.
(4) In exercising its functions, the Council is to have regard to the educational and related needs (including support needs) of persons who are, and the likely educational and related needs (including support needs) of persons who might wish to become, students of any of the fundable bodies.
(5) For the purposes of subsection (1)(a), “skills needs” means any requirement or desirability for skills or knowledge which, following consultation with the Scottish Ministers, appears to the Council—
(a) to exist for the time being or be likely to exist in the future; and
(b) to be capable of being addressed (wholly or partly) by the provision of fundable further education or fundable higher education.
(6) For the purposes of subsection (1)(b) and (c), “issues” means issues which, following consultation with the Scottish Ministers, appear to the Council—
(a) to exist for the time being or be likely to exist in the future; and
(b) to be capable of being addressed (wholly or partly) by the provision of fundable further education or fundable higher education.
(1) The Council must exercise its functions in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements.
(2) In subsection (1), “equal opportunities” and “equal opportunity requirements” have the same meanings as in Section L2 (equal opportunities) of Part II of Schedule 5 to the Scotland Act 1998 (c. 46).
(1) The Council must, in the exercise of its functions—
(a) where it considers it appropriate to do so, consult any or all of the persons referred to in subsection (5); and
(b) so far as is consistent with the proper exercise of its functions, seek to secure the collaboration with the Council of those persons.
(2) The Council must, where it considers it appropriate to do so in the exercise of its functions, consult––
(a) a trade union which appears to it to be representative of staff of the fundable bodies; or
(b) a body of persons which appears to it to be representative of students of the fundable bodies.
(3) Any particular requirement for consultation imposed on the Council by virtue of this Act is without prejudice to subsections (1)(a) and (2).
(4) The persons referred to in subsection (5) must provide the Council with such information as it may reasonably require for the purposes of or in connection with the exercise of any of its functions.
(5) The persons are—
(a) any local authority;
(b) the governing body of any fundable body;
(c) the governing body of any other body which provides fundable further education or fundable higher education;
(d) the Scottish Qualifications Authority;
(e) Scottish Enterprise;
(f) Highlands and Islands Enterprise;
(g) any local enterprise company;
(h) Scottish University for Industry (that is, the organisation comprised of Scottish UFI Limited and Scottish UFI Trust); and
(i) Communities Scotland (that is, the agency of the Scottish Executive known by that name).
(6) In subsection (5)(g), “local enterprise company” means a person who is responsible, by virtue of an agreement made under section 19 (delegation of certain functions and powers) of the Enterprise and New Towns (Scotland) Act 1990 (c. 35), for the discharge of any functions of Scottish Enterprise or Highlands and Islands Enterprise.
(7) The Scottish Ministers may by order modify subsections (5) and (6).
(8) The Council must, in relation to the provision of fundable further education and fundable higher education, promote collaboration between the fundable bodies.
(1) The Council may (subject to subsections (2) to (9)) do anything that is necessary or expedient for the purpose of or in connection with the exercise of its functions, including in particular—
(a) acquiring and disposing of land and other property;
(b) entering into contracts;
(c) investing sums not immediately required for the purpose of the discharge of its functions; and
(d) accepting gifts of money, land or other property.
(2) The Council may not borrow money.
(3) The Council is not to––
(a) give any guarantee or indemnity over or in respect of any property; or
(b) create any trust or security over or in respect of any property,
without the written consent of the Scottish Ministers.
(4) The Council is not to dispose of any property to which this subsection applies without the written consent of the Scottish Ministers.
(5) Consent, for the purposes of subsection (3) or (4), may be given—
(a) in respect of any case or class of case; and
(b) subject to such conditions as the Scottish Ministers may determine.
(6) Consent, for the purposes of subsection (4), is not required for a disposal of land which is or forms part of property to which that subsection applies if the disposal is in consequence of the compulsory acquisition (under any enactment) of the land.
(7) But the Council is to inform the Scottish Ministers of the compulsory acquisition (under any enactment) of land which is or forms part of property to which subsection (4) applies.
(8) Where property to which subsection (4) applies is disposed of, the Council is (after deduction of such expenses as appear to the Scottish Ministers to have been reasonably incurred in the disposal) to pay to the Scottish Ministers such portion of the proceeds or value of the consideration for the disposal as the Scottish Ministers may, after consultation with the Council, determine.
(9) Subsection (4) applies to any property of the Council which has been acquired, improved or maintained wholly or partly, or directly or indirectly, out of—
(a) funds provided by the Scottish Ministers under section 9 or 10; or
(b) the proceeds of, or any consideration for, the disposal of any property so acquired, improved or maintained.
(1) The Scottish Ministers may by order impose requirements on the Council as regards the exercise of its functions.
(2) But requirements imposed under this section may not relate to the Council’s functions under section 7 or 17.
(3) Requirements imposed under this section may—
(a) be of a general or specific character; and
(b) make different provision for different cases or classes of case,
but may not relate to a particular fundable body.
(1) The Scottish Ministers are, if it appears to them that the financial affairs of a fundable body have been or are being mismanaged, to give the Council such directions about the provision of financial support for the activities carried on by the fundable body as they consider are necessary or expedient by reason of the mismanagement.
(2) Before giving directions under this section, the Scottish Ministers must consult the Council and the fundable body concerned.
(3) The Council must comply with directions given to it under this section.
(1) A fundable body must have regard to the desirability of—
(a) ensuring the academic freedom of relevant persons; and
(b) ensuring that the matters mentioned in subsection (2) are not adversely affected by the exercise of a relevant person’s academic freedom.
(2) Those matters are—
(a) the appointment held; and
(b) any entitlements or privileges enjoyed,
by the relevant person at the fundable body.
(3) In this section, a “relevant person” is a person who is engaged in—
(a) teaching, or the provision of learning, at a fundable body; or
(b) research at a fundable body.
(4) For the purposes of this section, “academic freedom” includes freedom (within the law) to—
(a) hold and express opinion;
(b) question and test established ideas and received wisdom; and
(c) present controversial or unpopular points of view.
(1) In section 3 (persons liable to be investigated) of the Scottish Public Services Ombudsman Act 2002 (asp 11)—
(a) in subsection (1), for the words “and 2” there is substituted “, 2 and 3”; and
(b) after subsection (6) there is added—
“(7) Her Majesty may by Order in Council amend Part 3 of schedule 2 so as to—
(a) modify any entry in it,
(b) remove any entry from it, or
(c) add to it any entry relating to a person, or class of persons, providing fundable further education or fundable higher education (within the meaning of the Further and Higher Education (Scotland) Act 2005 (asp 6)).
(8) An Order in Council under subsection (7) adding an entry to that Part of that schedule relating to a person, or class of persons, whose business (whether commercial, charitable or otherwise) includes matters other than the activities which fundable bodies (within the meaning of that Act) generally carry on—
(a) must, as regards that person or class, provide for this Act to apply only in relation to those activities; and
(b) may do so subject to such modifications or exceptions as may be specified in the Order in Council.
(9) No recommendation to make an Order in Council under subsection (7)(c) is to be made to Her Majesty unless every person to whom the Order relates has been consulted.”.
(2) In section 24 (Orders in Council: general) of that Act, in subsection (2) after the words “3(2)” there is inserted “or (7)”.
(3) In schedule 2 (listed authorities) of that Act, after Part 2, there is added—
(1) Any fundable body within the meaning of the Further and Higher Education (Scotland) Act 2005 (asp 6).
(2) Sub-paragraph (1) does not include the Open University (so far as it is a fundable body).
The Scottish Agricultural College.”.
(4) In schedule 4 (matters which the Ombudsman must not investigate) of that Act, after paragraph 10, there is inserted—
“10A Action taken by or on behalf of any body falling within Part 3 of schedule 2 in the exercise of academic judgement relating to an educational or training matter.”.
(1) The Auditor General for Scotland may, at any reasonable time, inspect the accounts and accounting records of any fundable body.
(2) But the function under subsection (1) is exercisable only in relation to accounts and records which relate to a financial year in which expenditure to which this subsection applies is incurred.
(3) Subsection (2) applies to expenditure which has been funded (in whole or part) by payments made by the Council under section 12.
(1) In section 25 (closure of colleges and dissolution of boards of management) of the 1992 Act—
(a) after subsection (1) there is inserted—
“(1A) An order made for the purpose mentioned in subsection (1)(a) above—
(a) shall include provision for the property and rights of the board of management to transfer to and vest in a charity; and
(b) may include provision for the liabilities and obligations of the board of management to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.
(1B) An order made for the purpose mentioned in subsection (1)(b) above may include provision—
(a) for the property and rights of the board of management to transfer to and vest in a charity; and
(b) for the liabilities and obligations of the board of management to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.”;
(b) in subsection (2), paragraph (a) is repealed;
(c) in subsection (7), for the words from “under” to “sub-paragraph” in the second place where it occurs there is substituted “as mentioned in subsection (1A) or (1B) above shall not contain provision for transferring and vesting property, rights, liabilities or obligations unless the body or person to whom the transfer is being made (apart from the Scottish Ministers)”; and
(d) after subsection (7) there is added—
“(8) All property and rights vested in a charity by virtue of an order as mentioned in subsection (1A) or (1B) above shall be applied for the purpose of the advancement of education.
(9) In this section, a “charity” means a body entered in the Scottish Charity Register.”.
(2) In section 47 (closure of institutions) of that Act—
(a) after subsection (1) there is inserted—
“(1A) An order under subsection (1) above—
(a) shall include provision for the property and rights of the institution to transfer to and vest in a charity; and
(b) may include provision for the liabilities and obligations of the institution to transfer to and vest in the Scottish Ministers or such other body or person as may be specified in the order.”;
(b) in subsection (2), paragraph (a) is repealed; and
(c) after subsection (7) there is added—
“(8) An order as mentioned in subsection (1A) above shall not contain provision for transferring and vesting property, rights, liabilities or obligations unless the body or person to whom the transfer is being made (apart from the Scottish Ministers) has consented to the transfer and vesting.
(9) All property and rights vested in a charity by virtue of an order as mentioned in subsection (1A) above shall be applied for the purpose of the advancement of education.
(10) In this section, a “charity” means a body entered in the Scottish Charity Register.”.
In section 3 (powers of the Scottish Ministers) of the 1992 Act, for subsection (4) there is substituted—
“(4) The governing body (within the meaning of Part II of this Act) of a college of further education may, with the consent of the Scottish Ministers, change the name of the college or of the governing body.”.
A fundable body must provide a local authority with such information or advice as the authority may reasonably require for the purposes of the exercise by the authority of its functions under section 65B (provision for recorded children) of the 1980 Act.
Amended by correction slip on 01 June 2005
Further and Higher Education (Scotland) Act 2005