Citation and commencement

1.  This Order may be cited as the Further and Higher Education (Scotland) Act 1992 Amendment Order 2008 and shall come into force on 1st August 2008.

Amendment of the Further and Higher Education (Scotland) Act 1992

2.—(1) Section 47 of the Further and Higher Education (Scotland) Act 1992(2) is amended as follows.

(2) At the end of subsection (1), insert “(but may not do so unless the governing body of the institution in respect of which the order is to be made consents to such closure and winding-up)”.

(3) In subsection (5), omit “; and (b) the governing body of the institution proposed to be closed”.

Explanatory Note

(This note is not part of the Order)

This Order amends the Further and Higher Education (Scotland) Act 1992 (“the Act”) by amending section 47(1) which gave powers to the Secretary of State, and now to the Scottish Ministers, to close a designated institution and wind up its governing body. The amendment requires the Scottish Ministers to obtain the consent of the governing body prior to exercising those powers.

Section 7 of the Charities and Trustee Investment (Scotland) Act 2005 states that a body would not meet the charity test if its constitution expressly permits the Scottish Ministers or a Minister of the Crown to direct or otherwise control its activities. Section 102(a) provides the power to make an order to modify an enactment to prevent a body from failing the charity test. The amendment to the Act is to ensure that a designated higher education institution does not fail the charity test where the Act is part of its constitution.