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Tertiary Education and Research (Wales) Act 2022

General Overview of the Act

3.The Act provides a new statutory framework for publicly funded tertiary education and research in Wales. “Tertiary education” is a new term in the statutory provisions relating to education and training in Wales, which includes higher education, further education and training suitable to the requirements of persons who have attained the age of 16.

4.The Act comprises 149 sections and 4 Schedules and is divided into 7 Parts as follows:

Part 1 – Strategic Framework for Tertiary Education and Research

5.Part 1 provides for the establishment of a new public body, the Commission for Tertiary Education and Research (“the Commission”). The body will exercise new functions created by the Act, the existing statutory functions of the Higher Education Funding Council for Wales (“HEFCW”) and many of the existing further education and training functions of the Welsh Ministers. Most of these existing statutory functions are repealed in their current form and restated in the Act, with modifications to make them exercisable by the Commission (instead of HEFCW or the Welsh Ministers) and with modifications in other respects in some cases.

6.Part 1 sets out the strategic duties of the Commission, requires strategic planning for tertiary education and research by the Commission and abolishes HEFCW.

7.Provision is made for the Welsh Ministers to have an ‘arms-length’ supervisory role in respect of the Commission. The Welsh Ministers—

  • are required to publish a statement of strategic priorities for tertiary education and research, which is to inform the Commission’s strategic planning;

  • are to appoint the members of the Commission;

  • may confer supplementary functions on the Commission by regulations;

  • may give guidance to which the Commission must have regard when exercising its functions; and

  • may give general directions to the Commission about the exercise of its functions.

8.Duties are also placed on both the Commission and the Welsh Ministers to have regard, when exercising functions under the Act, to the importance of protecting the academic freedom of higher education providers and academic staff at such providers.

9.This Part introduces Schedule 1 which sets out the status of the Commission; makes provision about membership of the Commission including some terms and conditions; imposes a duty on the Commission to have a Research and Innovation Committee, a Quality Committee and a staff member appointment committee. It enables it to establish other committees including joint committees; makes provisions about memberships of the Commission (including workforce and learner representation), audit and accounts, a duty to ensure good value, annual reporting requirements as well as other operational requirements such as delegations, proceedings, register of interests and the exercise of functions.

10.This Part also introduces Schedule 2 which makes provision about the transfer of property and staff to the Commission.

Part 2 – Registration and Regulation of Tertiary Education Providers

11.Part 2 is about the registration and regulation of tertiary education providers and is divided into 4 chapters:

  • Chapter 1 provides for a new system of registration of tertiary education providers (registration under Part 2 is not a legal requirement for the provision of tertiary education in itself; registration is linked to the Commission’s powers under Part 3 to fund tertiary education (see the explanation of Part 3 below));

  • Chapter 2 makes provision for quality assurance of publicly funded tertiary education (registered and unregistered) through monitoring, assessment and inspection;

  • Chapter 3 makes provision for intervention in further education institutions (unrelated to the registration system established by Chapter 1) and procedures for the exercise of all enforcement functions under Part 2;

  • Chapter 4 makes general provision relevant to the Part.

Chapter 1 – Registration of tertiary education providers

12.The Commission must establish and maintain a register of tertiary education providers in Wales and providers may apply to become registered in one or more categories of the register. Categories of registration are to be set in regulations made by the Welsh Ministers. The conditions of registration are a combination of conditions imposed directly by the Act and conditions set and published by the Commission, which must be proportionate to their aims. The Commission is placed under a duty to impose some conditions on all registered providers, and it has duties to set particular kinds of conditions for particular kinds of registered provider. It also is given power to set conditions of its own choosing.

13.The mandatory conditions in the Act for specified categories of provider relate to fee limits for courses and promoting equal opportunity. The categories of registered provider to which these provisions apply are to be specified by the Welsh Ministers by regulations. The Welsh Ministers also have the power by regulations to require the Commission to impose other conditions on registered providers.

14.The Commission is placed under a duty to monitor compliance with the registration conditions, may provide advice and assistance to tertiary education providers and may carry out or arrange reviews of matters relevant to compliance. Enforcement of any failure of a registered provider to comply with conditions of registration is to be by directions given by the Commission.

15.The Chapter also makes procedural provision for de-registration of registered providers and provision for reviews of Commission decisions by an independent panel.

Chapter 2 – Quality assurance and improving quality

16.Chapter 2 gives the Commission the function of publishing quality assurance frameworks for the purpose of guiding policy and practice in the assessment of tertiary education by the Commission, Her Majesty’s Chief Inspector of Education and Training for Wales (“Estyn”) or a body designated by the Commission under Chapter 2 to carry out the Commission’s assessment functions in respect of higher education.

17.In respect of tertiary education provided by registered providers or tertiary education funded or secured by the Commission, the Commission—

  • must monitor, and promote improvement in, the quality,

  • may provide advice or assistance to improve quality, and

  • may carry out or arrange reviews of matters relevant to quality.

18.The Commission has a specific duty to assess, or arrange assessment, of higher education provided by or on behalf of registered providers; and a duty is placed on the governing bodies of registered providers to publish action plans following these assessments. The Commission is given a power to designate a body to perform its higher education assessment functions. Schedule 3, which is introduced by the Chapter, provides for the process for designation of a body, oversight of the body by the Commission and the charging of fees by the designated body.

19.Chapter 2 restates the functions of Estyn in respect of the inspection of post-16 education and training and the duties of persons responsible for providing education inspected, with modifications to take account of the new statutory context established by the Act. The existing provisions in sections 75 to 80 and 83 to 88 of the Learning and Skills Act 2000 are repealed.

Chapter 3 – Further enforcement and procedural provisions

20.Chapter 3 restates, with modifications, the existing power of the Welsh Ministers to intervene in the conduct of further education institutions in Wales where their governing bodies fail to comply with duties, act unreasonably or perform inadequately. It provides the Commission with a power to refer cases to the Welsh Ministers where it considers there are grounds for intervention. The existing power of the Welsh Ministers in section 57 of the Further and Higher Education Act 1992 is repealed.

21.Provision is made for the Commission to give directions requiring the co-operation of certain tertiary education providers that are not registered providers, in so far as their activities are caught by Part 2. A power of entry and inspection is given to persons authorised by the Commission for the purpose of exercising Commission functions under Part 2.

22.The Chapter specifies requirements for warning notices to be given before the Commission gives directions in respect of failure to comply with conditions, notices of rejection of proposed fee limit statements (or of variations or replacements) or directions requiring the co-operation of certain providers that are not registered providers. The governing body of a provider given a warning notice is to have the right to apply for a review of the Commission’s proposed decision; and the review is to be conducted by a person, or panel of persons, appointed by the Welsh Ministers.

23.The Commission is placed under a duty to monitor and report on the financial sustainability of registered providers, and institutions in the further education sector that are funded by the Commission. And the Commission is placed under a duty to publish a statement on how it proposes to exercise its intervention functions under Part 2.

Part 3 – Securing and Funding Tertiary Education and Research

24.This Part provides for the funding of the Commission by the Welsh Ministers, the powers of the Commission to fund tertiary education and research, apprenticeships and the Commission’s duties to secure the provision of facilities for further education and training. The funding powers of the Commission in respect of higher education replace the existing funding powers of HEFCW in the Further and Higher Education Act 1992, which are repealed. And the duties to secure further education and training replace the existing functions of the Welsh Ministers in sections 31 to 33 of the Learning and Skills Act 2000, which are repealed.

25.Funding of higher education by the Commission must be in respect of providers and courses specified in regulations made by the Welsh Ministers. Specification of providers is by reference to category of registration under Part 2. The Welsh Ministers may also fund a limited range of higher education courses themselves.

26.Funding of research and innovation by the Commission must also be in respect of tertiary education providers registered in categories specified by the Welsh Ministers in regulations.

Part 4 – Apprenticeships

27.Part 4 provides for approved Welsh apprenticeships. These are apprenticeships that take place wholly or mainly in Wales in accordance with apprenticeships frameworks published by the Commission (which may be prepared by the Commission or other persons). The Welsh Ministers may specify requirements in relation to approved Welsh apprenticeships, including the content and preparation of apprenticeship frameworks.

Part 5 – Learner Protection, Complaints Procedures and Learner Engagement

28.Part 5 provides for learner protection plans, which are documents setting out a tertiary education provider’s arrangements for protecting the interests of students undertaking courses in the event that the course ceases to be provided and for supporting students who wish to transfer to different courses.

29.The Part requires the Commission to take steps to ensure that tertiary education providers have procedures in place for investigating complaints by students and extends the meaning of “qualifying institution” for the purposes of student complaints schemes under the Higher Education Act 2004.

30.The Part also requires the Commission to prepare and publish a Learner Engagement Code about the involvement of persons receiving tertiary education in decisions made by the providers of the tertiary education.

Part 6 – Information, Advice and Guidance

31.Part 6 provides powers and duties to give information, advice and guidance. This includes:

  • a duty on the Commission to give advice and information on the request of the Welsh Ministers and the power to do so;

  • a power for the Welsh Ministers to give information to the Commission;

  • a duty for certain tertiary education providers and other bodies to give information on request to the Commission;

  • power for various public bodies to share information with the Commission;

  • a duty to share information relating to applications for admission to higher education courses.

32.This Part also provides a power to the Commission to give advice and issue guidance to any person about the provision of tertiary education or any matter connected to the Commission’s functions. And it gives the Commission and the Welsh Ministers power to carry out or fund research into education and training in Wales or connected matters.

Part 7 Miscellaneous and General

33.This Part makes provision in respect of instruments and articles of government of higher education corporations in Wales and the dissolution of such corporations. It introduces a duty on Welsh Ministers to consult the Commission about careers services; contains provisions on subordinate legislation procedures; provides powers for the Welsh Ministers to make transitional, consequential etc. provisions; and makes provision in respect of commencement, interpretation, coming into force etc.

34.This Part introduces Schedule 4 which sets out minor and consequential amendments to primary legislation affected by the Act’s provisions.

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Explanatory Notes

Text created by the Welsh Government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of Senedd Cymru.


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