Higher education corporations
Section 137: Instruments of government of higher education corporations in Wales
420.Section 137 amends section 124A of the Education Reform Act 1988 (“
421.The Privy Council has certain functions, under section 124A(2) and (3) of the 1988 Act to prescribe, make or modify the instruments of government of higher education corporations.
422.Instruments of government must comply (among other things) with Schedule 7A to the 1988 Act. Schedule 7A sets out statutory requirements for the content of instruments of government of higher education corporations made by the Privy Council.
423.Under section 124A(9) of the 1988 Act, the Welsh Ministers(2) are able to amend or repeal any of paragraphs 3 to 5 and 11 of Schedule 7A by order. These paragraphs relate to membership of the higher education corporation and in particular the size, constitution and appointment of members of the corporation.
424.Subsection (2) of section 137 of the Act makes provision for the Welsh Ministers’ existing order-making powers under section 124A(9) of the 1988 Act to be extended. The extended power allows the Welsh Ministers to amend or repeal the whole of Schedule 7A to the 1988 Act with the exception of paragraph 1. Paragraph 1 enables a higher education corporation’s instrument of government to empower the corporation to change its name with the consent of the Privy Council. The additional paragraphs of Schedule 7A covered by the extended power relate to tenure of office for members, officers and committees of the corporation, allowances paid to the members and the seal of the corporation.
425.Subsection (3) inserts a new subsection (9A) into section 124A of the 1988 Act which requires the Welsh Ministers to consult with the Commission and any other persons they think appropriate before exercising the extended order-making powers. It also inserts a new subsection (9B) which makes provision for such an order made by the Welsh Ministers to make consequential amendments or repeals to certain specified provisions in the 1988 Act if those are necessary as a result of any amendments or repeals made under the order-making power to Schedule 7A.
Section 138: Articles of government of higher education corporations in Wales
426.Section 125 of the 1988 Act requires an institution conducted by a higher education corporation to have articles of government, approved by the Privy Council, relating to the conduct of the institution. Section 126 of that Act also makes provision relating to the content of the articles of government together with its amendment and revocation.
427.Subsection (2) of section 138 of the Act inserts new subsections (8) and (9) into section 125 of the 1988 Act enabling the Welsh Ministers, by order, to amend or repeal section 125(2) to (4) of the 1988 Act, which relate to certain content of articles of government of higher education corporations.
428.Among other things, section 125(2) to (4) of the 1988 Act make provision for the articles to determine the distribution of functions between the board of governors, the principal of the institution and the academic board and regulate the constitution and functions of committees of the corporation. Those provisions also require the articles to make provision in respect of the procedures for meetings of the board of governors, the academic board, the corporation’s committees and for the appointment of members of the corporation. In addition, they enable the articles to make provision authorising the board of governors to make rules or bye-laws for the government and conduct of the institution.
429.The new subsection (9) will place the Welsh Ministers under a duty to consult with the Commission and any other persons they think appropriate before exercising the new order-making powers.
430.Subsection (3) amends section 232 of the 1988 Act.
431.The amendment to section 232 of the 1988 Act (orders and regulations) is to ensure that subsection (1) of that section (which requires orders and regulations under the 1988 Act to be made by statutory instrument) catches the new powers of the Welsh Ministers to make orders conferred by sections 137 and 138 of the Act.
432.Subsections (4ZA), (4ZB) and (4ZC), which will be inserted into section 232 of the 1988 Act by section 138(3)(b) of the Act, make provision relating to the Senedd procedure attached to the order and regulation making powers of the Welsh Ministers under the 1998 Act, as inserted by this Act.
Section 139: Dissolution of higher education corporations in Wales
433.This section amends section 128 of the 1988 Act which relates to the dissolution of higher education corporations.
434.Section 128(2) as amended contains a power for the Welsh Ministers by order to provide for the dissolution of a higher education corporation in Wales and the transfer of its property, rights and liabilities to any one or more of the following—
any person appearing to the Welsh Ministers to be wholly or mainly engaged in the provision of educational facilities or services of any description;
any body corporate established for purposes which include the provision of such facilities or services;
the Commission;
the Welsh Ministers.
435.The Welsh Ministers may only make an order under section 128(2) of the 1988 Act if the higher education corporation to be dissolved has requested an order be made, or has consented to an order being made. An order may be made without the consent of the higher education corporation, if the Welsh Ministers consider that consent has been unreasonably withheld or unreasonably delayed.
436.Section 128(4) of the 1988 Act, as amended by section 139(4) of the Act, requires the Welsh Ministers to consult the higher education corporation to be dissolved and the Commission before making an order under subsection (1).
437.Section 139 of the Act makes amendments to section 128 of the 1988 Act in consequence of the creation of the Commission, replacing references to HEFCW with references to the Commission.
438.Subsection (3) makes new provision about the power under section 128(1)(b) to make provision by order for the transfer of the property, rights and liabilities of the higher education corporation being dissolved. A new subsection (1A) is inserted into section 128 which provides that orders—
may make provision about the effect of a transfer on any right of pre-emption, right of return or other similar right that may apply in respect of such property or rights (including provision about the calculation and payment of any just compensation);
have effect in relation to property, rights or liabilities to which they apply in spite of any provision (of whatever nature) of any enactment or any rule of law, which would otherwise prevent, penalise or restrict the transfer of the property, rights or liabilities.
439.Subsection (6) inserts new subsection (7) into section 128 of the 1988 Act requiring the Welsh Ministers to publish and keep under review a statement setting out the circumstances in which they propose to exercise the power under this section to make an order. The Welsh Ministers must consult such persons as they consider appropriate before publishing the statement, or revised statement, and lay a copy before the Senedd as soon as possible after it is published.
The function was originally vested in the Secretary of State but by virtue of article 2 of and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) that function was transferred in relation to Wales to the National Assembly for Wales (established under the Government of Wales Act 1998). By virtue of section 162 of and paragraph 30 of Schedule 11 to the Government of Wales Act 2006 functions of the National Assembly for Wales were transferred to the Welsh Ministers.
