Further and Higher Education (Scotland) Act 1992

1992 CHAPTER 37

An Act to make new provision about further and higher education in Scotland; and for connected purposes.

[16th March 1992]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1 This Act extends to Scotland only except as provided by S.63(5).

Part I S Further Education

Chapter I S Duties in relation to further education

1 Duty of Secretary of State to secure provision of further education. S

F1 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this Part of this Act “further education” means any programme of learning, not being school education, provided for persons over school age, being a programme falling, for the time being, within section 6 of this Act.

F1 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 1(1)(2)(4)-(6) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(a); S.S.I. 2005/419, art. 2(1)

Commencement Information

I1 S. 1 wholly in force; s. 1 not in force at Royal Assent see s. 63(2); s. 1(3)(4)(5) in force at 16.5.1992 and s. 1(1)(2)(6) in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4

2 Function of education authorities. S

Section 1 of the 1980 Act (duty of education authorities to secure provision of education) shall be amended as follows—

(a) in subsection (1) for the words “subsection (2)” there shall be substituted the words “ subsections (2) and (2A) ”; and

(b) after subsection (2) there shall be inserted the following subsection—

“(2A) The duty imposed on an education authority by subsection (1) above shall not include the provision of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992, but an education authority shall have power to provide such further education for their area.”

Commencement Information

I2 S. 2 wholly in force at 1.4.1993 see s.63(2) and S.I. 1992/817, art. 3(2), Sch. 4

3 Powers of Secretary of State. S

(1) The Secretary of State F2 ... may, subject to subsection (3) below—

(a) establish new colleges of further education;

(b) merge two or more colleges of further education;

(c) close colleges of further education.

(2) The powers of the Secretary of State in relation to the matters mentioned in paragraphs (a) to (c) of subsection (1) above shall be exercised by order; and an order under subsection (1)(a) above establishing a college of further education or under subsection (1)(b) above merging two or more colleges of further education shall contain provision—

(a) designating the name; and

(b) establishing a body corporate to be known as “the Board of Management of”,

the college so established or, as the case may be, created by merger.

(3) The power conferred by paragraphs (b) and (c) of subsection (1) above shall be exercised only in relation to colleges for which boards of management have been established in pursuance of this Part of this Act.

[F3 (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.]

(5) The Secretary of State may by order amend Schedule 2 to this Act to make different provision to that contained, for the time being, in paragraphs 2 to 18 of that Schedule.

(6) The Secretary of State may by regulations prescribe requirements with which boards of management shall comply in discharging their functions under this Part of this Act.

Textual Amendments

F2 Words in s. 3(1) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(1)(a); S.S.I. 2005/419, art. 2(1)

F3 S. 3(4) substituted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 30, 36(2); S.S.I. 2005/419, art. 2(1)

Commencement Information

I3 S. 3 wholly in force; s. 3 not in force at Royal Assent see s. 63(2); s. 3(5) in force at 16.5.1992 and s. 3(1)-(4)(6) in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4

F4 4 Funding of further education. S

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Textual Amendments

F4 S. 4 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

5 Requirement on Secretary of State to consult. S

(1) Where, in relation to any college of further education, the Secretary of State proposes to exercise any power to which this section applies, he shall consult the education authority for the area in which the college is or, as the case may be, is to be situated and any other person appearing to the Secretary of State to be affected by the proposal.

(2) This section applies to—

(a) the power of the Secretary of State under section 3 of this Act—

(i) to establish a new college of further education;

(ii) to close a college of further education; or

(iii) to merge two or more colleges of further education; and

(b) the power of the Secretary of State under section 44 of this Act to designate an institution for the purposes of Part II of this Act, if the institution is a college of further education in respect of which a board of management has been established in pursuance of this Part of this Act.

Commencement Information

I4 S. 5 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

6 Further education to which section 1 applies. S

(1) A programme of learning falls within this section if it—

(a) prepares a person for a vocational qualification;

(b) prepares a person for—

(i) a [F5 qualification awarded by the Scottish Qualifications Authority]; or

(ii) a General Certificate of Education qualification of England and Wales or Northern Ireland;

(c) provides instruction for persons who are participating in a programme of learning which falls within this section and who have a learning difficulty;

(d) prepares a person for access to higher education;

(e) is designed to assist persons whose first language is not English to achieve any level of competence in English language;

(f) is designed predominantly to prepare a person for participation in any programme of learning which falls within this section.

(2) The Secretary of State may by order, from time to time, amend subsection (1) above by adding or removing any entry relating to a programme of learning or by varying any such entry.

(3) An order shall not be made under subsection (2) above unless the Secretary of State has consulted—

(a) such persons or organisations appearing to him to be representative of boards of management and education authorities; and

(b) such other persons,

as appear to him to be appropriate as to the amendments proposed to be made by the order.

Textual Amendments

F5 Words in s. 6(1)(b)(i) substituted (1.4.1997) by 1996 c. 43, s. 36, Sch. 5, para. 8; S.I. 1997/365, art. 2

Commencement Information

I5 S. 6 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Chapter II S Scottish Further Education Funding Council

F6 7 Scottish Further Education Funding Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Ss. 7-10 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F6 8 Advisory functions of the Funding Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Ss. 7-10 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F6 9 Power of Secretary of State as regards functions of the Funding Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Ss. 7-10 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F6 10 Payment of grants etc., to the Funding Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6 Ss. 7-10 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

Chapter III S Colleges of Further Education

Management of colleges S

11 First transfer of colleges. S

(1) With effect from 1st April 1993 or such other date as the Secretary of State may by order appoint (in this section referred to as “the first transfer date”) each college of further education as may be prescribed shall cease to be under the management of the education authority which, immediately before that date, was responsible for its management, and the college council for each such college shall, with effect from that date, cease to exist.

(2) With effect from the first transfer date there shall be established for each college of further education prescribed by an order made under subsection (1) above a body corporate to be known as “the Board of Management of” that college.

(3) The education authority which, immediately before the first transfer date, was responsible for the management of such a college of further education shall, on that date or as soon as is reasonably practicable thereafter, provide to the board of management of the college all such information held by the authority, or available to it, as relates to the college, its administration, management, fabric, students and staff.

(4) Nothing in subsection (3) above shall require the disclosure of any information in contravention of any provision contained in any enactment (including an enactment contained in a subordinate instrument) restricting or prohibiting the disclosure of such information.

(5) A college of further education shall not be prescribed under subsection (1) above unless it provides at least one full-time programme of further education.

Commencement Information

I6 S. 11 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

12 Boards of management. S

(1) A board of management shall have the duty of—

(a) managing and conducting their college; and

(b) ensuring that their college provides (either by itself or by arrangement with any other person) suitable and efficient further education to students of the college,

and in carrying out their duty under paragraph (b) above, the board shall have regard to the provision [F7 of managing and conducting their college.]

(2) A board of management shall have the power—

(a) to provide or secure the provision of further education (within the meaning of section 1(5)(b) of the 1980 Act);

[F8 (aa) to provide part-time and full-time courses of instruction for persons of school age;]

(b) to charge fees for or in connection with the provision by them of any form of further education [F9 or any course of instruction provided under sub-paragraph (aa)];

(c) to provide to students of the college such assistance of a financial or other nature (including waiving or granting remission of fees) as they may consider appropriate;

(d) for the purpose of the administration and management of the college, to receive any property, rights, liabilities and obligations transferred to the board under or in pursuance of any provision of this Part of this Act;

(e) to provide facilities of any description appearing to the board to be necessary or expedient for the purpose of or in connection with the carrying on of any of the activities mentioned in this subsection or in subsection (1) above (including boarding accommodation and recreational facilities for students and staff and facilities to meet the needs of students who have learning difficulties and disabled staff);

(f) to supply goods and services;

(g) subject to subsection (7)(a) below and section 18 of this Act, to acquire, hold and dispose of land and other property;

(h) to enter into contracts, including in particular—

(i) contracts for the employment of teachers and other staff for the purpose of or in connection with the carrying on of any such activities as are mentioned in this subsection or in subsection (1) above; and

(ii) contracts with respect to the carrying on by the board of any of such activities;

(i) to form or promote, or to join with any other person in forming or promoting, companies (within the meaning of the M1 Companies Act 1985);

(j) subject to subsection (7)(a) below and the said section 18, to borrow such sums as the board think fit for the purpose of carrying on any of the activities they have power to carry on or for meeting any liability or obligation transferred to them under or in pursuance of any provision of this Part of this Act and, in connection with such borrowing, to grant such security or give such guarantee or indemnity as they think fit;

(k) to invest any sums not immediately required by the board for the purpose of their carrying on any of the activities which they have power to carry on or for meeting any liability or obligation transferred to them under or in pursuance of any provision of this Part of this Act;

(l) subject to subsection (7)(a) below and the said section 18, to raise funds, accept gifts of money, land or other property and apply it to, or hold or administer it in trust for, the purpose of carrying on any of the activities which they have power to carry on; and

(m) to do all such other things as are calculated to facilitate or are incidental or conducive to the carrying on of any of the activities which the board have power to carry on.

(3) In carrying out their functions under this section a board of management shall have regard to the requirements of persons F10 ... who have learning difficulties.

(4) A board of management may delegate the performance of any of their functions to their chairman, to any committee appointed by them or to any member of their staff.

(5) A board of management may pay to persons appointed to be members of the board such allowances and expenses as they may determine; and any allowances and expenses to be paid by virtue of this subsection shall be calculated by reference to such criteria as the Secretary of State may determine.

(6) A board of management shall make such reports or returns and give such information to the Secretary of State as he may require for the purposes of the exercise of his powers and the performance of his duties under this Part of this Act.

(7) A board of management shall not, without the prior consent, given in writing, of the Secretary of State —

(a) borrow money from any source, give any guarantee or indemnity or create any trust or security over or in respect of any of their property; or

(b) effect any material change in the character of their college.

(8) The Secretary of State may by order amend the provisions of subsection (2) above by varying, adding to or removing the powers conferred by that subsection.

(9) An order shall not be made under subsection (8) above unless the Secretary of State has consulted such persons or organisations appearing to him to be representative of boards of management and such other persons as appear to him to be appropriate as to the amendments proposed to be made by the order.

(10) Schedule 2 to this Act shall have effect with respect to the constitution and proceedings of and other matters relating to every board of management established in pursuance of any provision of this Part of this Act.

Textual Amendments

F7 Words in s. 12(1) substituted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(1)(b)(i); S.S.I. 2005/419, art. 2(1)

F8 S. 12(2)(aa) inserted (14.11.2003) by Further and Higher Education (Scotland) Act 1992 Amendment Order 2003 (S.S.I. 2003/487), arts. 1, 2(2)

F9 Words in s. 12(2)(b) inserted (14.11.2003) by Further and Higher Education (Scotland) Act 1992 Amendment Order 2003 (S.S.I. 2003/487), arts. 1, 2(3)

F10 Words in s. 12(3) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(1)(b)(ii); S.S.I. 2005/419, art. 2(1)

Commencement Information

I7 S. 12 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch.1

Marginal Citations

M1 1985 c. 6.

13 Subsequent transfers of colleges. S

(1) As regards any college of further education which is under the management of an education authority and in respect of which the management is not transferred from the authority on the first transfer date, the Secretary of State may by order appoint a date with effect from which the college shall cease to be under the management of such education authority.

(2) An order appointing a date under subsection (1) above for the purposes of a college of further education shall establish, with effect from such date as the Secretary of State may prescribe, a body corporate to be known as “the Board of Management of” the college.

(3) An order made under subsection (1) above may provide that such of the provisions of this Part of this Act as appear to the Secretary of State to be necessary or expedient shall, subject to such modifications as appear to him to be appropriate, apply to the transfer of the college.

(4) The provisions referred to in subsection (3) above may include any provision restricting the right of an education authority—

(a) to enter into certain contracts; and

(b) to dispose of or remove or cause to be removed or enter into any agreement or unilateral obligation for the disposal or removal of certain property,

and for the purposes of any modification made under the said subsection (3), any reference in any provision of this Part of this Act to 21st or, as the case may be, 22nd March 1991 shall be construed, respectively, as a reference to the date of or, as the case may be, the date following an announcement by the [F11 Scottish Ministers to the Scottish Parliament that they intend to exercise their] power under this section.

(5) For the purposes of any modification made by virtue of subsection (3) above to section 33 of this Act, the reference in that section to 4th November 1991 shall be construed as a reference to the date of such announcement as is mentioned in subsection (4) above.

(6) An order shall not be made under subsection (1) above as regards a college of further education unless, at the date the order is made, the college is providing at least one full-time programme of further education.

Textual Amendments

F11 Words in s. 13(4) substituted (1.7.1999) by S.I. 1999/1820, arts. 1(3)(c), 4, Sch. 2 Pt. I para. 108(2)

Commencement Information

I8 S. 13 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

14 Transfer of colleges of further education not under local authority management. S

(1) This section applies to any college of further education which—

(a) is not under the management of a board of management or of an education authority;

(b) provides at least one full-time programme of further education; and

(c) is in receipt of grant paid out of money provided by Parliament.

(2) The management of a college of further education to which this section applies may be transferred from the persons responsible for its management or control if, and only if—

(a) those persons have consented to the transfer; and

(b) where the premises of the college are owned by another person or by a trust, such person or, as the case may be, the trustees of the trust have consented to the transfer.

(3) Where such consent as is mentioned in subsection (2) above is obtained, the Secretary of State may by order made under this subsection transfer the management of the college with effect from such date as may be specified in the order to a body corporate established under the order to be known as “the Board of Management of” the college.

(4) Where any college in respect of which an order is made under subsection (3) above is subject to a trust deed the Secretary of State may, with the consent of—

(a) the trustees; and

(b) where any other person is empowered, by whatever means, to modify the trust deed, such person,

by order made under this subsection amend such trust deed to make such provisions as appear to him necessary or expedient for the purposes of such transfer.

(5) An order made under subsection (3) above may provide that so much of sections 15, 19(2) and 34 of and Schedule 5 to this Act as appear to the Secretary of State to be necessary or expedient shall, subject to such modifications as appear to him to be appropriate, apply to the transfer of the college.

Commencement Information

I9 S. 14 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

Staff S

15 Transfer of staff. S

(1) Subject to subsection (3) below, this section applies to any person (in this section referred to as a “qualifying person”) who, immediately before the first transfer date, is employed by an education authority if—

(a) it is a condition of his contract of employment that he is employed to work exclusively at a college of further education under the management of the education authority, being a college which is prescribed under section 11 of this Act; or

(b) it is not such a condition of his contract of employment but he is assigned by the education authority so to work; or

(c) it is a condition of his contract of employment that he is employed to work both at the college and elsewhere or that he is assigned so to work by the authority; but that he is subject, for the purposes of this section, to a designation by the Secretary of State.

(2) A designation mentioned in subsection (1)(c) above is a designation under a direction made by the Secretary of State that a person or class or description of persons to whom a condition mentioned in that subsection applies or, as the case may be, who are assigned as so mentioned, shall be a qualifying person or, as the case may be, a class or description of qualifying persons, in relation to a particular college of further education.

(3) Where the Secretary of State proposes to make a direction in terms of subsection (2) above he shall consult—

(a) in the case of a direction designating a person, that person; and

(b) in the case of a direction designating a class or description of persons, such persons as appear to the Secretary of State to be representative of the class or description of persons,

as to the proposed designation.

(4) A person is not a qualifying person if—

(a) his contract of employment terminates on the day immediately before the first transfer date;

(b) prior to the first transfer date he is appointed or assigned by the education authority to work exclusively at some place other than the college and the appointment or assignation is to take effect on that date;

(c) the education authority, with effect from the first transfer date, withdraws him from work at the college; or

(d) he is employed in connection with the provision of meals, unless the meals are provided solely for consumption by persons at the college.

(5) The contract of employment between a qualifying person and the education authority shall have effect from the first transfer date as if originally made between him and the board of management of the college at which he is employed or assigned to work or in relation to which he is designated as a qualifying person in pursuance of subsection (2) above.

(6) Without prejudice to subsection (5) above—

(a) all the education authority’s rights, powers, duties and liabilities under or in connection with a contract to which that subsection applies shall by virtue of this paragraph be transferred to the board of management of the college on the first transfer date; and

(b) anything done before that date by or in relation to the education authority in respect of that contract or the qualifying person shall be deemed from that date to have been done by or in relation to the board of management.

(7) Subsections (5) and (6) above are without prejudice to any right of a qualifying person to terminate his contract of employment if the terms and conditions of his employment are changed substantially to his detriment; but such change shall not be taken to have occurred by reason only of the fact that his employer is changed by virtue of this section.

(8) Where a person—

(a) has, prior to the first transfer date, entered into a contract of employment with an education authority which is to come into effect on or after that date; and

(b) would, if the contract had come into effect before that date, have been a qualifying person,

he shall be treated for the purposes of this section as if he were a qualifying person.

(9) In this section references to the terms and conditions of a person’s contract of employment with an education authority shall be construed as including references to any rights (whether accrued or contingent) under any pension or superannuation scheme of which he was a member by virtue of his employment with the authority.

Commencement Information

I10 S. 15 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Property S

16 Transfer of property etc. to boards of management. S

(1) Except as the Secretary of State otherwise directs, on the first transfer date there shall be transferred to and vest in the board of management of each college of further education specified in an order made under section 11 of this Act all property, rights, liabilities and obligations mentioned in subsection (2) below.

(2) The property, rights, liabilities and obligations referred to in subsection (1) above are—

(a) all land or other property (including corporeal and incorporeal moveable property) which—

(i) immediately before the first transfer date was owned by an education authority; and

(ii) at any time during the relevant period was used, held or obtained by them for or in connection with the purposes of the college;

(b) all moveable property (whether corporeal or incorporeal) which, immediately before the first transfer date, was owned by the college council for the college;

(c) all rights, liabilities and obligations of the authority which, immediately before the first transfer date, subsisted in respect of the college;

(d) all rights, liabilities and obligations of the college council for the college which subsisted immediately before that date,

but excluding such property, rights, liabilities and obligations as are mentioned in subsection (5) below.

(3) Subject to subsection (7) below, the land and other property referred to in subsection (2)(a) above includes any land or other property which, at any time during the relevant period—

(a) was used, held or obtained for or in connection with the purposes of more than one college of further education; or

(b) was used, held or obtained partly for or in connection with the purposes of one or more such colleges and partly for or in connection with other purposes,

to the extent that it was so used, held or obtained for or in connection with the purposes of any such college.

(4) Subject to subsection (7) below, the rights, liabilities and obligations referred to in subsection (2)(c) above include any rights, liabilities or obligations which, immediately before the first transfer date—

(a) subsisted in relation to more than one college of further education; or

(b) subsisted partly in relation to one or more such colleges and partly in relation to some other purpose,

to the extent that they subsisted in relation to any such college.

(5) Subsection (1) above shall not apply to—

(a) any right, liability or obligation deriving from a contract of employment relating to a person to whom section 15 of this Act does not apply;

(b) any obligation or liability of an education authority in respect of compensation for premature retirement of any person formerly employed by them;

(c) any liability of such an authority in respect of the principal of, or any interest on, any loan obtained by them for the purposes of a college of further education referred to in that subsection where—

(i) the loan was obtained before 1st April 1991; or

(ii) the loan was obtained, without the consent of the Secretary of State given under this Part of this Act, during the period commencing on 1st April 1991 and ending on the day immediately before the first transfer date;

(d) any liability of such an authority arising under—

(i) delict;

(ii) any enactment (including an enactment contained in a subordinate instrument); or

(iii) any rule of strict liability,

arising out of an act or omission where the cause of action accrued before the first transfer date;

(e) any property which to any extent has, with the prior consent, given in writing, of the Secretary of State and the college council, ceased to be used or held for or in connection with the purposes of the college, to the extent that it has ceased to be so used or held; and

(f) any property, right, liability or obligation in respect of which an agreement or determination is required under section 17 of this Act.

(6) The vesting of property, rights, liabilities and obligations under this section shall have effect notwithstanding—

(a) anything to the contrary in; or

(b) any condition relating to the transfer of such property, rights, liabilities or obligations contained in,

any enactment (including an enactment contained in a subordinate instrument whether passed or made before or after the coming into force of this section), rule of law or obligation.

(7) Schedule 3 to this Act shall have effect as regards—

(a) the transfer of property effected by this section; and

(b) the apportionment of such property between colleges of further education or, as the case may be, between education authorities and such colleges.

(8) Schedule 4 to this Act shall have effect as regards commissioners for further education assets.

(9) In this section “the relevant period” is the period commencing on the 22nd March 1991 and ending immediately before the first transfer date.

Commencement Information

I11 S. 16 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

17 Surpluses and deficits. S

(1) Not later than such date as the Secretary of State may direct, the education authority and the board of management shall, in respect of each college of further education prescribed by an order made under section 11 of this Act, arrive at a written agreement as to—

(a) the amount of any surplus or deficit in the accounts of the college council for the college as at the day immediately before the first transfer date; and

(b) which of the education authority or board of management any such surplus or deficit or any proportion of such surplus or deficit is to be transferred to and vest in,

and, where the agreement provides for the amount of any surplus or deficit, or any proportion of such surplus or deficit to be transferred and vest as mentioned in paragraph (b) above, such amount together with interest on that amount from the day mentioned in paragraph (a) above, shall be transferred and vest as at the date so directed.

(2) Before making a direction under subsection (1) above as to the date by which an education authority and a board of management are to arrive at a written agreement, the Secretary of State shall consult the education authority and the board of management.

(3) An agreement made under subsection (1) above shall be conclusive evidence of the matters contained therein.

(4) Where it appears to an education authority or a board of management that it is unlikely that they will be able to arrive at a written agreement as mentioned in subsection (1) above the authority or the board may refer the matter to the Secretary of State who shall appoint a commissioner for further education assets.

(5) Where the education authority and the board of management have failed to arrive at an agreement as mentioned in subsection (1) above and neither of them has applied to the Secretary of State under subsection (4) above, the Secretary of State may appoint a commissioner as if a reference had been made to him under the said subsection (4).

(6) Where the failure of an education authority and a board of management to arrive at a written agreement is referred to a commissioner for further education assets under subsection (4) or (5) above, the commissioner shall, after consulting the authority and the board, determine the matter and issue a written determination to them; and a determination under this subsection—

(a) may include any provision which could have been included in an agreement made under subsection (1) above; and

(b) shall have effect for all purposes as if it were an agreement made under that subsection.

(7) No application for the rectification of an agreement made under subsection (1) above or a determination under subsection (6) above may be made to the court under section 8 of the M2 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by—

(a) in the case of such an agreement, the education authority or board of management who were a party to it; and

(b) in the case of such a determination, the commissioner or an education authority or board of management who are affected by the determination,

without the prior consent, given in writing, of the Secretary of State.

(8) The education authority and the board of management who are parties to a dispute referred to a commissioner for further education assets under subsection (4) or (5) above shall provide the commissioner with such information and records of accounts as he may require for the purpose of enabling him to make a determination under that subsection.

Commencement Information

I12 S. 17 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

Marginal Citations

M2 1985 c. 73.

18 Disposal of certain property. S

(1) Subject to subsection (4) below, the board of management of a college of further education shall not dispose of any property to which this section applies without the prior consent, given in writing, of the Secretary of State.

(2) Property to which this section applies is—

(a) property transferred to the board under or in pursuance of any of the provisions of this Part of this Act;

(b) property acquired by the board wholly or partly with assets which represent or in any way derive from any part of the proceeds of or any consideration for the disposal of property so transferred; and

(c) property acquired, improved or maintained wholly or partly, directly or indirectly, out of funds provided under or in pursuance of this Part of this Act by the Secretary of State or from the proceeds of or any consideration for the disposal of any property so acquired, improved or maintained.

(3) The consent of the Secretary of State may be given in respect of a particular disposal of property or of disposals of any class or description and may be given subject to such conditions as the Secretary of State may determine.

(4) The consent of the Secretary of State is not required for the disposal of land which is or forms part of property to which this section applies where the disposal is in consequence of the compulsory acquisition of such land by any authority in pursuance of any power of compulsory acquisition under any enactment; but the board of management shall inform the Secretary of State of any such compulsory acquisition.

(5) Where any property to which this section applies is disposed of, the board of management shall pay to [F12 such educational charity as the Scottish Ministers may direct,] such portion of the proceeds or value of the consideration for the disposal, after deduction of such expenses as appear to the Secretary of State to have been reasonably incurred in the disposal, as the Secretary of State may, after consultation with the board, determine.

[F13 (6) In this section, “educational charity” means a body entered in the Scottish Charity Register which has the advancement of education as one of its charitable purposes.]

Textual Amendments

F12 Words in s. 18(5) substituted (9.3.2009) by Further and Higher Education (Scotland) Act 1992 Modification Order 2009 (S.S.I. 2009/28), arts. 1, 2(a)

F13 S. 18(6) inserted (9.3.2009) by Further and Higher Education (Scotland) Act 1992 Modification Order 2009 (S.S.I. 2009/28), arts. 1, 2(b)

Commencement Information

I13 S. 18 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Educational endowments and trusts S

19 Educational endowments. S

(1) Where, immediately before the first transfer date in relation to any college of further education prescribed by the Secretary of State under section 11 of this Act, an educational endowment is to any extent vested in an education authority or an officer of such an authority solely for the purposes of benefiting—

(a) the college; or

(b) students of the college,

such endowment shall, on that date, to that extent and for those purposes, be transferred to and vest in the board of management of the college.

(2) Where, immediately before the first transfer date, an educational endowment is vested in an education authority or one of their officers —

(a) for the benefit of all colleges of further education in the area of the authority; or

(b) for the benefit of any group of such colleges; or

(c) for the benefit of students of such colleges,

and any such college is a college prescribed as mentioned in subsection (1) above, the authority or, as the case may be, their officer shall continue to apply such endowment for the benefit of such college or, as the case may be, students of such college as if it had not been so prescribed.

(3) The Secretary of State may by order make such modifications as he thinks fit—

(a) to the purposes to which any relevant educational endowment may be applied; and

(b) to any conditions or provisions regarding such application,

provided that following any such modifications the purposes to which the endowment may be applied shall continue to be charitable purposes [F14 (within the meaning of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10) ].

(4) Before making any modifications under subsection (3) above to the purposes to which a relevant educational endowment may be applied, the Secretary of State shall, so far as it appears to him practicable to do so, consult—

(a) the board of management; and

(b) where any other person is empowered, by whatever means, to modify the purposes to which the endowment may be applied, that person.

(5) For the purposes of subsections (3) and (4) above, a “relevant educational endowment” is an educational endowment which is transferred to and vested in the board of management of a college of further education as mentioned in subsection (1) above.

Textual Amendments

F14 Words in s. 19(3) substituted (24.4.2006) by Charities and Trustee Investment (Scotland) Act 2005 (asp 10), s. 107(2), Sch. 4 para. 9; S.S.I. 2006/189, art. 2(2), Sch. Pt. 2

Commencement Information

I14 S. 19 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

20 Variation of trust deeds. S

(1) Without prejudice to section 19(3) of this Act, the Secretary of State may by order make such modifications as he thinks fit of any trust deed relating to any land or other property held by any person for the purposes of any college of further education prescribed under section 11 of this Act.

(2) Before making any modifications under subsection (1) above of any trust deed the Secretary of State shall, so far as it appears to him practicable to do so, consult—

(a) the board of management of the college; and

(b) where any other person is empowered, by whatever means, to modify the trust deed, that person.

Commencement Information

I15 S. 20 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

Miscellaneous S

F15 21 Directions by Secretary of State. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 S. 21 repealed (24.4.2006) by Further and Higher Education (Scotland) Act 1992 Modification Order 2006 (S.S.I. 2006/216), arts. 1, 2

F16 22 College development plans. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F16 S. 22 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F17 23 Duty of boards of management as regards recorded children. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17 S. 23 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1) and expressed to be repealed (14.11.2005) by Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), s. 35(1), Sch. 3 para. 7(a); S.S.I. 2005/564, art. 2

24 Mismanagement by boards. S

(1) If it appears to the Secretary of State that the affairs of the board of management of any college of further education have been or are being mismanaged, he may by order—

(a) remove all of the members of the board or any of them (other than the principal of the college); and

(b) as regards those members not appointed in pursuance of sub-paragraphs (b), (c) and (d) of paragraph 3(2) of Schedule 2 to this Act, appoint new members to the board in place of those so removed.

(2) Where the Secretary of State exercises the power conferred by subsection (1) above to remove members of the board, he shall give notice in writing to any members and to the board of such removal.

(3) In making any appointment under this section the Secretary of State shall comply with the requirements of paragraphs 2, 3, 6 and 7 of Schedule 2 to this Act as to the appointment of members of boards of management; and any reference in those paragraphs to the board of management doing or being required to do anything shall, for the purposes of this section, be construed as a reference to the Secretary of State doing or being required to do that thing.

(4) An appointment made under this section shall have effect as if made under paragraph 3 of the said Schedule 2.

(5) A person appointed under this section shall hold office until the expiry of the period of office of the person he was appointed to replace.

Commencement Information

I16 S. 24 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

25 Closure of colleges and dissolution of boards of management. S

(1) Where the Secretary of State determines, after such consultation as is required by section 5 of this Act, to make an order—

(a) closing a college of further education; or

(b) designating a college such as is mentioned in paragraph (b) of subsection (2) of that section as a designated institution within the meaning of Part II of this Act,

the order shall contain provision winding-up the board of management of the college, and the provisions of this section shall have effect.

[F18 (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.]

(2) An order made for the purposes mentioned in subsection (1) above may include provision—

F19 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) for the payment by the Secretary of State of any expenses incurred in the closure or winding-up;

(c) imposing such duties or conferring such additional powers in relation to the closure or winding-up as the Secretary of State may consider appropriate;

(d) for the exercise of any of the board’s functions by any member of the board specified by the Secretary of State in the order;

(e) for the appointment of a person to administer the closure or winding-up, and any person so appointed shall have such powers and duties as appear to the Secretary of State necessary or expedient for such purposes and as are specified in the order;

(f) of such incidental, supplementary, transitional or ancillary nature as appears to the Secretary of State to be necessary or expedient for the purposes of the closure or winding-up.

F20 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) When the winding-up of the board of management of a college of further education under this section is completed, the Secretary of State shall by order dissolve the board of management of that college.

(6) In this section, references to the closure of a college include references to the college being merged with one or more other colleges; and different provision may be made under this section as regards different colleges to be merged with one another.

(7) An order [F22 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) ] has consented to the transfer and vesting.

[F23 (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. ]

Textual Amendments

F18 S. 25(1A)(1B) inserted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(1)(a), 36(2); S.S.I. 2005/419, art. 2(1)

F19 S. 25(2)(a) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(1)(b), 36(2); S.S.I. 2005/419, art. 2(1)

F20 S. 25(3) repealed (24.4.2006) by Further and Higher Education (Scotland) Act 1992 Modification Order 2006 (S.S.I. 2006/216), arts. 1, 2

F21 S. 25(4) repealed (24.4.2006) by Further and Higher Education (Scotland) Act 1992 Modification Order 2006 (S.S.I. 2006/216), arts. 1, 2

F22 Words in s. 25(7) substituted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(1)(c), 36(2); S.S.I. 2005/419, art. 2(1)

F23 S. 25(8)(9) added (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(1)(d), 36(2); S.S.I. 2005/419, art. 2(1)

Commencement Information

I17 S. 25 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

26 Abolition of college councils. S

(1) This section applies to any college of further education within the meaning of the 1989 Act, not being a college which is prescribed under section 11 of this Act.

(2) With effect from the first transfer date—

(a) the college council for every college of further education to which this section applies shall cease to exist;

(b) any functions delegated to such college council by virtue of a delegation scheme under section 56 of the 1989 Act shall revert to the education authority in whose area the college is situated; and

(c) any property, rights, liabilities and obligations of such college council shall, by virtue of this section, transfer to and vest in such education authority.

Commencement Information

I18 S. 26 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

27 Information as to provision of further education. S

(1) The Secretary of State may by regulations require the board of management of a college of further education to publish such information as may be prescribed as to—

(a) the educational provision made or proposed to be made for students of the college (including students with learning difficulties);

(b) the educational achievements of such students while students of the college (including the results of examinations, tests and other assessments);

(c) the careers of such students after leaving the college; and

(d) the facilities provided or proposed to be provided for students of the college who have learning difficulties and disabled staff of the college.

(2) For the purposes of subsection (1)(c) above, a person’s career includes any education, training, employment or occupation; and the regulations may in particular require the published information to show—

(a) the numbers of students not undertaking any career; and

(b) the persons providing students with education, training or employment.

(3) The information shall be published in such form and manner and at such times as may be prescribed.

(4) The published information shall not disclose the name of any student to whom it relates without the prior consent, given in writing, of such student.

Commencement Information

I19 S. 27 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Chapter IV S Transitory and transitional provisions

Property and contracts S

28 Control of disposal of certain land etc. S

(1) This section applies to any land which, at any time during the period beginning on 22nd March 1991 and ending on the first transfer date, was owned, held, used or obtained by an education authority wholly or partly for or in connection with the purposes of a college of further education which, at any time during that period—

(a) was under the management of the education authority (whether or not any functions had been delegated to a college council in pursuance of a delegation scheme under section 56 of the 1989 Act); and

(b) was providing at least one full-time programme of further education.

(2) Subject to subsections (3) and (5) below, an education authority shall not dispose of or enter into any agreement or unilateral obligation for the disposal of any land to which this section applies without the prior consent, given in writing, of the Secretary of State.

(3) The consent of the Secretary of State is not required for the disposal of any land in pursuance of any requirement of an order of any court, anything in any enactment (including an enactment contained in a subordinate instrument) or any rule of law.

(4) Any consent for the purposes of this section may be given—

(a) either in respect of a particular disposal or in respect of disposals of any class or description; and

(b) either unconditionally or subject to conditions.

(5) Nothing in this section shall affect anything required to be done by an education authority in pursuance of an obligation entered into by them before 22nd March 1991 and, if the obligation is a unilateral obligation, notified by them to the beneficiary before that date.

(6) This section shall have effect notwithstanding anything in section 74 of the M3 Local Government (Scotland) Act 1973 or in any other enactment (including an enactment contained in a subordinate instrument) relating to the disposal of land held by a local authority.

Commencement Information

I20 S. 28 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M3 1973 c. 65.

29 Control of disposal and removal of other property. S

(1) This section applies to all property to which section 28 of this Act does not apply which, at any time during the period beginning on 22nd March 1991 and ending on the first transfer date, was owned, held, used or obtained by an education authority wholly or partly for or in connection with the purposes of a college such as is mentioned in that section.

(2) Subject to subsections (3) and (5) below, an education authority shall not, without the prior consent, given in writing, of the Secretary of State—

(a) dispose of or enter into any agreement or unilateral obligation for the disposal of; or

(b) remove or cause to be removed or enter into any agreement or unilateral obligation for the removal from any premises owned, held, used or obtained by them wholly or partly for or in connection with the purposes of such a college of,

any property to which this section applies.

(3) The consent of the Secretary of State is not required for the disposal or removal of any property in pursuance of any requirement of an order of any court, anything in any enactment (including an enactment contained in a subordinate instrument) or any rule of law.

(4) Any consent for the purposes of this section may be given—

(a) either in respect of a particular disposal or in respect of disposals of any class or description; and

(b) either unconditionally or subject to conditions.

(5) Nothing in this section shall affect anything required to be done by an education authority in pursuance of an obligation entered into by them before 22nd March 1991 and, if the obligation is a unilateral obligation, notified by them to the beneficiary before that date.

Commencement Information

I21 S. 29 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

30 Restriction on education authority entering into certain contracts. S

(1) This section applies to any contract which—

(a) is entered into by an education authority after 21st March 1991 and before the first transfer date; and

(b) would, if the college were prescribed under section 11 of this Act, be binding on the board of management of the college of further education with effect from the first transfer date.

(2) Notwithstanding any other provision of this Part of this Act, an education authority shall not enter into a contract to which this section applies without the prior consent, given in writing, of the college council for the college.

(3) Without prejudice to section 28 or 29 of this Act, an education authority shall not enter into a contract to which this section applies in respect of which the consideration or, where the consideration is not expressed as an amount of money, the value of the consideration exceeds £50,000 without the prior consent, given in writing, of the Secretary of State.

(4) For the purposes of subsection (3) above, the consideration or value of the consideration in respect of a contract of employment exceeds £50,000 if, in respect of any period of 12 months, the aggregate amount of the remuneration payable to and value of other benefits receivable by the employee exceeds £50,000.

(5) Any consent for the purposes of this section may be given in respect of a particular contract or in respect of contracts of any class or description; and such consent may be given unconditionally or subject to conditions.

(6) Where any contract entered into by an education authority whether on, before or after 21st March 1991 is varied after that date and the effect of such variation is as mentioned in paragraph (b) of subsection (1) above, the contract shall be treated, for the purposes of this section, as if it were a contract entered into after that date.

Commencement Information

I22 S. 30 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Enforcement of sections 28 to 30 S

31 Disposals and contracts without consent. S

(1) This section and section 32 of this Act shall have effect in the case of any disposal or removal made by an education authority or any agreement or unilateral obligation for such disposal or removal entered into in contravention of section 28 or 29 of this Act or any contract entered into by them in contravention of section 30 of this Act.

(2) Where any land to which section 28 of this Act applies is disposed of by an education authority in contravention of that section, the board of management may, with the consent of the Secretary of State, compulsorily acquire the land.

(3) In any case where an education authority—

(a) has agreed to a disposal of land in contravention of section 28 of this Act; or

(b) has agreed to a disposal of other property or to the removal of any such property in contravention of section 29 of this Act; or

(c) has entered into a contract in contravention of section 30 of this Act; or

(d) has entered into a unilateral obligation to dispose of or remove any property in contravention of the said section 28 or 29,

and the agreement, contract or other obligation, has not been implemented, or has been implemented only in part, then to the extent that it has not been so implemented, the board of management may repudiate the agreement, contract or obligation in accordance with subsection (4) below.

(4) A repudiation under subsection (3) above shall be effected by the board of management serving notice in writing of the repudiation on the education authority and—

(a) in the case of an agreement or contract, on the parties to the agreement or contract and any other person who is a beneficiary under the agreement or contract;

(b) in the case of a unilateral obligation, on any beneficiary under the obligation.

(5) A repudiation under subsection (3) above shall have effect as if made by the education authority.

(6) The M4 Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to the compulsory acquisition of land under this section as if this section had been in force immediately before the commencement of that Act and, in relation to such acquisition, the board of management shall be treated as if they were a local authority within the meaning of that Act.

(7) For the purposes of a compulsory acquisition of land under this section, the board of management shall be treated as a public authority for the purposes of [F24 section 195 of the Town and Country Planning (Scotland) Act 1997] (general vesting declarations on compulsory acquisition).

(8) For the purposes of this section and section 32 of this Act, references to the board of management shall be construed as references to—

(a) in the case of land disposed of in contravention of section 28 of this Act, the board of management of the college of further education for or in connection with the purposes of which the land was owned, held, used or obtained;

(b) in the case of other property disposed of or removed in contravention of section 29 of this Act, the board of management of the college of further education for or in connection with the purposes of which the property was owned, held, used or obtained; and

(c) in the case of a contract entered into in contravention of section 30 of this Act, the board of management of the college of further education which would, by virtue of section 16 of this Act, be bound by the contract,

and any reference in this subsection to the disposal of land or to the disposal or removal of other property shall include a reference to an agreement or unilateral obligation for such disposal or removal.

Textual Amendments

F24 Words in s. 31(7) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 52

Commencement Information

I23 S. 31 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M4 1947 c. 42.

32 Recovery of loss and damages. S

(1) Where an education authority has, in relation to any college of further education, done or permitted anything to be done in contravention of anything in sections 28 to 30 of this Act, the board of management of the college shall be entitled to recover from the education authority the amount of any loss or damage, as determined in accordance with this section, incurred by the board in consequence of—

(a) the doing of that thing; and

(b) any action taken by the board in pursuance of section 31 of this Act,

and the board of management may raise proceedings for the recovery of the amount of such loss or damage.

(2) The loss or damage referred to in subsection (1) above includes—

(a) where any land is compulsorily acquired in pursuance of subsection (2) of the said section 31, the amount of compensation paid in respect of such compulsory acquisition;

(b) in the case of any land which is not so acquired, the amount of the value of the land assessed as at the first transfer date;

(c) in the case of an agreement, contract or unilateral obligation which has been repudiated in pursuance of subsection (3) of the said section 31, the amount of any loss suffered by the board of management in consequence of the repudiation;

(d) in the case of an agreement, contract or unilateral obligation which has not been so repudiated, the amount of any loss sustained by the board of management in consequence of the implementation of the contract;

(e) in any case, any other loss or any expenses incurred by the board of management in consequence of the disposal or removal of property or an agreement, contract or unilateral obligation having been made or entered into,

together with interest on such amount or expenses from, in the case of loss or damage referred to in paragraph (b) above, the first transfer date and in any other case, such date after that date when the loss or damage occurred.

Commencement Information

I24 S. 32 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

33 Avoidance of certain contractual terms. S

(1) This section applies to any contract made during the period commencing on 4th November 1991 and ending on the day before the first transfer date (or made before but varied during that period) between an education authority and a person to whom this section applies, not being a contract made in contemplation of the employee’s pending dismissal by the authority by reason of redundancy.

(2) This section applies to a person if—

(a) it is a condition of his contract of employment that he is employed to work exclusively at a college of further education under the management of the authority (whether or not any functions have been delegated to the college council for the college in pursuance of a delegation scheme under section 56 of the 1989 Act), being a college which at any time during the period beginning with 4th November 1991 and ending on the date the contract was made or, as the case may be, varied was providing at least one full-time programme of further education; or

(b) it is not such a condition of his contract of employment, but the terms of his contract are such that the authority is entitled to assign him to work at a college such as is mentioned in paragraph (a) above during the period mentioned in subsection (1) above.

(3) In so far as any contract to which this section applies provides that the employee—

(a) shall not be dismissed by reason of redundancy; or

(b) if he is so dismissed, shall be paid a sum in excess of the sum which the employer is liable to pay to him under section 81 of the M5 Employment Protection (Consolidation) Act 1978,

the contract shall be void and of no effect.

Commencement Information

I25 S. 33 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M5 1978 c. 44.

Transitional S

34 Transitional provisions as regards college councils. S

(1) This section shall apply to the college council of every college of further education prescribed by order made under section 11 of this Act.

(2) During the transitional period a college council to which this section applies shall, subject to subsection (4) below, have such of the powers to be conferred by this Part of this Act on the board of management of the college—

(a) as are necessary or expedient to enable the college council to do anything they are required or enabled to do by this Part of this Act in connection with the transfer of the management of the college from the education authority to the board of management; and

(b) as will facilitate or enable the effective carrying on by the board of management of their functions after the first transfer date.

(3) In this section and in Schedules 5 and 6 to this Act, “the transitional period” in relation to the college council for a college of further education is the period beginning with such date as the Secretary of State may by order prescribe for the college and ending on the first transfer date.

(4) Subject to paragraph 1 of Schedule 5 to this Act, nothing in this section shall authorise a college council to enter into a contract of employment with any person.

(5) This section is without prejudice to Part II of the 1989 Act or any regulations made thereunder; but nothing in that Part or such regulations shall affect the exercise by any college council of any power or duty conferred on them by this Part of this Act.

(6) Nothing in section 58 of the 1989 Act (which makes provision as to the status of college councils, immunity from personal liability for members of college councils and the relationship for certain purposes of college councils to education authorities) shall apply to anything done or omitted to have been done by a college council or by any member of a college council under or in pursuance of this section.

(7) Schedule 5 to this Act, which makes provision for the transitional period as regards every college council to which this section applies, shall have effect.

(8) With effect from the date prescribed in pursuance of subsection (3) above, for the purposes of the determination of the composition of every college council to which this section applies—

(a) sections 54(4) and (5) and 55(2)(a), (b) and (c) of the 1989 Act and regulations 5, 6, 7 and 8 of the M6 College Council (Scotland) (No. 2) Regulations 1990 (provisions as to the composition of college councils) shall cease to have effect; and

(b) Schedule 6 to this Act, which contains provision as to the composition of college councils during the transitional period, shall have effect.

Commencement Information

I26 S. 34 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M6 S.I. 1990/1637.

Chapter V S General

35 Service of documents etc. S

(1) Any notice or document required or authorised to be given to or served on any person under or by virtue of this Part of this Act may be given or served—

(a) by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address; or

(b) if the person is a body corporate, by serving it in accordance with paragraph (a) above on the secretary of that body; or

(c) if the person is a firm, by serving it in accordance with paragraph (a) above on a partner or a person having the control or management of the firm.

(2) For the purposes of this section and of section 7 of the M7 Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—

(a) in the case of service on a body corporate or its secretary, it shall be the address of the registered or principal office of the body;

(b) in the case of service on a firm or a partner or a person having the control or management of a firm it shall be the address of the principal office of the firm,

and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a firm carrying on business outside the United Kingdom is its principal office within the United Kingdom.

(3) If the name or address of any owner or occupier of land on whom any notice or document is to be given or served under or by virtue of this Part of this Act cannot, after reasonable inquiry, be ascertained, the notice or document may be given or served—

(a) by addressing it to him as “the owner” or, as the case may be, “the occupier” of the land (which shall be described on the notice or document); and

(b) by leaving it either in the hands of a person who is or appears to be resident or employed on the land or conspicuously affixed to some building or object on or near the land.

(4) This section shall not apply to any notice or document in relation to the service of which provision is made by rules of court.

(5) In this section “secretary”, in relation to a local authority within the meaning of the M8 Local Government (Scotland) Act 1973, means the proper officer within the meaning of that Act.

Commencement Information

I27 S. 35 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M7 1978 c. 30.

M8 1973 c. 65.

36 Interpretation of Part I. S

(1) In this Part of this Act and in Part I of Schedule 8 to this Act, unless the context otherwise requires—

• “the 1989 Act” means the M9 Self-Governing Schools etc. (Scotland) Act 1989;

• “board of management” means a body corporate established in pursuance of section 3(2), 11(2), 13(2) or 14(3) of this Act, and references to “board” shall be construed accordingly;

• “college of further education” means an educational establishment by which further education is provided;

• “dispose” includes sell, transfer, grant, vary, create or extinguish any real right in, over or in respect of land; and “disposal” shall be construed accordingly;

• “the first transfer date” has the meaning given by section 11 of this Act;

• “further education” has the meaning given by section 1 of this Act;

• “interest in land” means any estate in land or any right in or over land, including any right to occupy or to use land or to restrict the occupation or use of land; and

• “land” includes, without prejudice to the meaning given to it by Schedule 1 to the Interpretation Act 1978, an interest in land within the meaning of this section.

(2) Any reference in this Part of this Act to a person who has a learning difficulty shall be construed in accordance with section 1(4) of this Act.

(3) Subject to subsection (1) above, expressions used in this Part of this Act and in the 1980 Act or the 1989 Act (or in both of those Acts) shall, unless the context otherwise requires, have the same meaning in this Part of this Act as in that Act.

Commencement Information

I28 S. 36 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M9 1989 c. 39.

Part II S Higher education

The funding council S

F25 37 Scottish Higher Education Funding Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F25 S. 37 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

38 Meaning of higher education. S

(1) In this Part of this Act “higher education” is education provided by means of any of the courses falling, for the time being, within this section.

(2) A course falls within this section if it is—

(a) a course at a higher level in preparation for a higher diploma or certificate;

(b) a first degree course;

(c) a course for the education and training of teachers;

(d) a course of post-graduate studies (including a higher degree course);

(e) a course at a higher level in preparation for a qualification from a professional body;

(f) a course at a higher level not falling within any of paragraphs (a) to (e) above.

(3) For the purposes of paragraphs (a), (e) and (f) of subsection (2) above a course shall be regarded as providing education at higher level if its standard is higher than the standard of courses in preparation for examinations for—

(a) the Scottish Certificate of Education at higher grade;

(b) the Certificate of Sixth Year Studies;

(c) the General Certificate of Education of England and Wales or Northern Ireland at advanced level; or

(d) the [F26 Scottish Qualifications Authority] national certificate.

(4) For the purposes of paragraph (d) of subsection (2) above, post-graduate studies includes a course following the award of a higher diploma or certificate.

(5) The Secretary of State may by order, from time to time, following consultation with the Council, amend

[F27 (a)] subsection (2) above by adding or removing any entry relating to a course or by varying any such entry [F28 ; and

(b) subsection (3) above.]

Textual Amendments

F26 Words in s. 38(3)(d) substituted (1.4.1997) by 1996 c. 43, s. 36, Sch. 5 para. 9(a); S.I. 1997/365, art.2

F27 Words in s. 38(5) inserted (1.4.1997) by 1996 c. 43, s. 36, Sch. 5 para. 9(b)(i); S.I. 1997/365, art. 2

F28 Word "and" and sub-para. (b) inserted (1.4.1997) in s. 38(5) by 1996 c. 43, s. 36, Sch. 5 para. 9(b)(ii); S.I. 1997/365, art. 2

Modifications etc. (not altering text)

C1 S. 38: Power to modify conferred (3.5.2001) by 2001 asp 6, ss. 1(6), 5(2)

Commencement Information

I29 S. 38 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

F29 39 Assessment of quality of education provided by institutions. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 39-43 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

Funds S

F29 40 Administration of funds. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 39-43 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F29 41 Administration of funds: supplementary. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 39-43 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F29 42 Grants. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 39-43 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

Further functions S

F29 43 Further functions. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 39-43 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

Designated institutions S

44 Designation of institutions. S

(1) The Secretary of State may[F30 , for the purposes of this Part of this Act, by order designate any institution providing higher education (whether or not it also provides education of any other kind or carries on any other activities). ]

(2) In this Part of this Act “designated institution” means an institution in relation to which a designation under this section has effect.

(3) An order made under this section may make such amendments of the provisions of any subordinate legislation as appear to the Secretary of State to be necessary or expedient in consequence of such order being made.

Textual Amendments

F30 Words in s. 44(1) substituted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(1)(c); S.S.I. 2005/419, art. 2(1)

Commencement Information

I30 S. 44 wholly in force; s. 44 not in force at Royal Assent see s. 63(2); s. 44 in force at 25.4.1992 for specified purpose only and fully in force at 16.5.1992 by S.I. 1992/817, art. 3(1)(a)(2), Sch. 1

45 Power of Privy Council in relation to designated institutions. S

(1) The Privy Council may by order make such provision as regards designated institutions as is mentioned in this section.

(2) An order of the Privy Council made under this section may—

(a) make provision with regard to the constitution of the governing body of any designated institution;

(b) prescribe the general functions to be discharged by the governing body, and confer on the governing body such powers as they may consider necessary or expedient for the efficient discharge of those functions; and

(c) without prejudice to Part VI of the 1980 Act, revoke, amend or re-enact any provision of any endowment relating to any designated institution,

and where an order under this section makes provision with regard to the constitution of the governing body of an institution as mentioned in paragraph (a) above if neither the institution nor the governing body is, immediately before the order is made, a body corporate, the governing body of the institution shall, by virtue of this subsection, be a body corporate.

(3) Without prejudice to the generality of subsection (2) above, an order made under this section may—

(a) prescribe the administrative and other arrangements to be adopted by the governing body for the purpose of discharging its functions and in particular provide for the delegation of such of its functions as may be prescribed in the order to persons or bodies of persons to be appointed in such manner as may be so prescribed;

(b) provide for the appointment, remuneration, discipline and dismissal by the governing body of administrative, teaching and other staff, and for the payment by the governing body of pensions, allowances or gratuities to or in respect of members of such staff on their death or retirement;

(c) prescribe the procedure to be followed in cases of alleged breaches of discipline by students in attendance at any such institution;

(d) provide for the constitution of bodies representative of students in attendance at such institutions and confer on any such bodies such functions as may be prescribed in the order; and

(e) provide for any of the purposes specified in paragraphs (a) to (e) of section 105(1) of the 1980 Act.

(4) An order made under this section may authorise the governing body to make rules regulating its own procedures and the conduct of the designated institution.

(5) An order made under this section may amend, vary, repeal or revoke the provisions of—

(a) any regulations made under section 77 of the 1980 Act relating to a designated institution as regards which the order is made; and

(b) any enactment (including an enactment contained in a subordinate instrument), any scheme, articles of association, trust deed or other instrument relating to the institution,

to the extent that any such provision appears to the Privy Council to be inconsistent with the order.

(6) An order made under this section may contain such incidental, supplementary and consequential provision as appears to the Privy Council to be necessary or expedient.

(7) This section shall apply to a designated institution notwithstanding that its name includes, by virtue of section 49 of this Act, the word “university”.

Commencement Information

I31 S. 45 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

46 Establishment of new institutions by the Secretary of State. S

The Secretary of State may by order establish institutions for the provision of any form of higher education.

Commencement Information

I32 S. 46 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

47 Closure of institutions. S

(1) Notwithstanding anything in any enactment (including an enactment contained in a subordinate instrument), the Secretary of State may by order close any designated institution and wind-up the governing body of such institution.

[F31 (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.]

(2) An order under subsection (1) above may include provision—

F32 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) for the transfer of the staff of the institution to such other institution in Scotland as the Secretary of State may prescribe, being an institution providing any form of higher education;

(c) for the payment by the Secretary of State of any expenses incurred in the closure and winding-up;

(d) imposing on the governing body of the institution such additional powers and duties in relation to the closure and winding-up as the Secretary of State considers appropriate;

(e) for the appointment of a person to administer the closure and winding-up, and a person so appointed shall have such powers and duties as appear to the Secretary of State necessary or expedient for such purposes and as are specified in the order;

(f) of such incidental, supplementary, transitional or ancillary nature as appears to the Secretary of State to be necessary or expedient for the purposes of the closure and winding-up.

(3) Any property transferred by virtue of an order under subsection (1) above shall remain subject to any trust or condition (whether contained in a scheme made or approved under Part VI of the 1980 Act or otherwise) to which it was subject immediately before such transfer.

(4) An order under this section may amend, vary, repeal or revoke the provisions of—

(a) any regulations made under section 77 of the 1980 Act relating to a designated institution as regards which the order has been made; and

(b) any enactment (including an enactment contained in a subordinate instrument), any scheme, articles of association, trust deed or other instrument relating to the institution,

to the extent that any such provision appears to the Secretary of State to be inconsistent with the order.

(5) An order under subsection (1) above shall not be made unless the Secretary of State has consulted—

(a) the Council; and

(b) the governing body of the institution proposed to be closed.

(6) When the winding-up of the governing body of an institution under this section is completed the Secretary of State shall by order dissolve the governing body of that institution.

(7) In this section references to the closure of a designated institution include references to the institution being merged with one or more other designated institutions; and different provision may be made under this section as regards different institutions to be merged with one another.

[F33 (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. ]

Textual Amendments

F31 S. 47(1A) inserted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(2)(a), 36(2); S.S.I. 2005/419, art. 2(1)

F32 S. 47(2)(a) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(2)(b), 36(2); S.S.I. 2005/419, art. 2(1)

F33 S. 47(8)-(10) added (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), ss. 29(2)(c), 36(2); S.S.I. 2005/419, art. 2(1)

Commencement Information

I33 S. 47 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

48 Power to award degrees etc. S

(1) The Privy Council may by order specify any institution within the higher education sector as competent to grant such awards and distinctions in pursuance of this section as they may specify.

(2) An institution for the time being specified in such an order may grant a degree, diploma, certificate or other academic award or distinction to any person who—

(a) completes, on or after the date specified in the order, an appropriate course of study or programme of supervised research; and

(b) passes an appropriate examination or demonstrates by such other means as the institution may determine the attainment of such standards as the institution may determine.

(3) An institution specified in such an order may—

(a) grant honorary degrees; and

(b) grant degrees to members of the academic and other staff of the institution.

(4) Any power conferred on an institution by this section to grant awards and distinctions includes power—

(a) to do so jointly with another institution (whether or not such institution is specified in an order under subsection (1) above);

(b) to authorise other institutions to do so on behalf of the institution; and

(c) to deprive any person of any award or distinction granted to him by or on behalf of the institution in pursuance of this section (or, in the case of an award granted to him by the institution and another institution jointly, to do so jointly with the other institution).

(5) It shall be for the institution to determine in accordance with any relevant provisions of the instruments relating to or regulating the institution—

(a) the courses of study or programmes of research, and the examinations or other means of demonstrating attainment of standards, which are appropriate for the grant of any award or distinction and the other terms and conditions on which any grant may be made in pursuance of this section by or on behalf of the institution; and

(b) the terms and conditions on which the institution may deprive any person of any award or distinction granted to him by or on behalf of the institution in pursuance of this section.

(6) A determination made under subsection (5)(b) above shall, as regards an award or distinction granted jointly with another institution, be made jointly with that other institution.

Commencement Information

I34 S. 48 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

49 Change of name by institutions. S

(1) Subject to subsection (2) below, the governing body of a designated institution may, with the consent of the Privy Council, change the name of the institution or of its governing body.

(2) Where, as regards a designated institution, there is in any enactment (including an enactment contained in a subordinate instrument) or any other document having legal effect any express prohibition or restriction on the power of the governing body to change the name of the institution or governing body, nothing in subsection (1) above shall empower a governing body to change the name of an institution or its governing body without complying with any requirement of such enactment or other document as to such change of name.

(3) Where any power is exercised under this section to change the name of a designated institution or of its governing body, the Privy Council shall have regard to the need to avoid any name which would be capable of causing confusion with the name of any other institution in the higher education sector.

(4) This section is without prejudice to any other power to change the name of a designated institution or its governing body.

(5) Nothing in this section or in any other power to change the name of a designated institution or of its governing body shall authorise the inclusion of the word “university” in the name of the institution or its governing body unless the consent of the Privy Council is given to such inclusion.

Commencement Information

I35 S. 49 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

General S

F34 50 Duty to give information to the Council. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F34 S. 50 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F35 51 Efficiency studies. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F35 S. 51 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

52 Exercise of powers of Privy Council. S

(1) Any power vested in the Privy Council by this Part of this Act may be exercised by any two or more of the lords and others of the Council.

(2) Any act of the Privy Council under this Part of this Act shall be sufficiently signified by an instrument signed by the clerk of the Council, and an order or act signified by an instrument purporting to be signed by the clerk of the Council shall be deemed to have been duly made or done by the Privy Council, and an instrument so signed shall be received in evidence in all courts and proceedings without proof of the authority or signature of the clerk of the Council or other proof.

Commencement Information

I36 S. 52 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

F36 53 Inspection of accounts. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F36 S. 53 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

F37 54 Directions. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F37 S. 54 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

55 Amendment of section 7 of the Teaching Council (Scotland) Act 1965. S

(1) The M10 Teaching Council (Scotland) Act 1965 shall be amended as follows.

(2) In section 7 (regulation of admission to courses of training for teachers and conditions for registration of teachers), for subsections (1) and (2) there shall be substituted the following subsections—

“(1) Subject to the following provisions of this section, the Secretary of State may make regulations as to—

(a) the provision of education and training for teachers in relevant institutions;

(b) the admission of students to courses of education and training for teachers;

(c) matters connected with the recommendation of students by the governing bodies of such institutions to the Council for registration; and

(d) so far as it relates to the matters mentioned in paragraphs (b) and (c) above, the fitness of persons to become teachers.

(2) Regulations under subsection (1) above may contain provision—

(a) as to the content, nature and duration of courses of education and training for teachers provided by relevant institutions and as to requirements for the assessment of students participating in such courses;

(b) as to the functions of the governing bodies, the principals and members of staff of relevant institutions;

(c) after consultation with the Council, conferring on the Council such functions as the Secretary of State considers appropriate; and

(d) as to such matters as are to be determined or approved by the Secretary of State or by such persons as may be prescribed,

and such regulations may make different provision for different institutions or classes of institution and for different circumstances.”

(3) In section 17 (interpretation) after subsection (3) there shall be inserted—

“(3A) In this Act—

(a) “relevant institution” means an institution within the higher education sector which provides courses for the education and training of teachers; and

(b) references to institutions within the higher education sector shall be construed as in Part II of the Further and Higher Education (Scotland) Act 1992.”

Commencement Information

I37 S. 55 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M10 1965 c. 19.

56 Interpretation of Part II. S

(1) In this Part of this Act—

• “designated institution” has the meaning given by section 44(2) of this Act;

• “governing body”, in relation to an institution, means—

  (a)

  in the case of an institution conducted by a body corporate, that body;

  (b)

  in the case of a university not falling within paragraph (a) above, the executive governing body which has responsibility for the management and administration of its revenue and property and the conduct of its affairs;

  (c)

  in the case of any other institution not falling within paragraph (a) or (b) above for which the Secretary of State by regulations or the Privy Council by order has constituted a governing body, that governing body; and

  (d)

  in any other case, any board of governors of the institution or any person responsible for the management of the institution, whether or not formally constituted as a governing body or board of governors; and

• “higher education” has the meaning given by section 38 of this Act.

(2) In this Part of this Act, references to institutions within the higher education sector are to—

(a) universities; and

(b) designated institutions.

(3) Any reference in any enactment (including an enactment contained in a subordinate instrument) passed or made before the passing of this Act to a college of education shall be construed as a reference to a designated institution which provides courses for the education and training of teachers.

Modifications etc. (not altering text)

C2 S. 56(2) applied (1.4.1993) by 1973 c. 50, s. 8(4)(b) (as substituted (1.4.1993) by 1993 c. 19, s. 45; S.I. 1993/2503, art. 2(3), Sch. 3).

Commencement Information

I38 S.56 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Part III S Miscellaneous

57 Finance. S

There shall be defrayed out of money provided by Parliament—

(a) any expenses of the Secretary of State incurred under this Act; and

(b) any increase attributable to this Act in the sums so payable under any other enactment.

Commencement Information

I39 S. 57 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

58 Stamp duty. S

Stamp duty shall not be chargeable in respect of any agreement made or any transfer effected under or by virtue of any of the provisions of this Act.

Commencement Information

I40 S. 58 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

[F38 58A. Stamp duty land tax S

(1) For the purposes of stamp duty land tax, any land transaction effected under or by virtue of any of the provisions of this Act is exempt from charge.

(2) Relief under this section must be claimed in a land transaction return or an amendment of such a return.

(3) In this section——

• “land transaction” has the meaning given by section 43(1) of the Finance Act 2003;

• “land transaction return” has the meaning given by section 76(1) of that Act.]

Textual Amendments

F38 S. 58A inserted (1.12.2003) by The Stamp Duty Land Tax (Consequential Amendment of Enactments) Regulations 2003 (S.I. 2003/2867), reg. 1, Sch. para. 19

F39 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S

Textual Amendments

F39 S. 59 repealed (1.3.2000) by 1998 c. 29, s. 74(2), Sch. 16 Pt. I; S.I. 2000/183, art. 2

F40 59A Joint exercise of certain functions. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F40 S. 59A repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(b); S.S.I. 2005/419, art. 2(1)

60 Regulations and orders. S

(1) Any power under this Act of the Secretary of State to make regulations or orders or of the Privy Council to make orders shall, subject to subsection (2) below, be exercisable by statutory instrument subject, other than an order made under section 63(2) of this Act, to annulment in pursuance of a resolution of either House of Parliament.

(2) Subsection (1) above shall not apply to an order made under section 14(4), 19(3) or 20(1) or of paragraph 18(4) of Schedule 2 to this Act.

(3) Regulations and orders made under this Act may make different provision as to different cases or circumstances; and such regulations or orders may contain such incidental, supplementary or transitional provision as the Secretary of State or, as the case may be, the Privy Council, think fit.

Commencement Information

I41 S. 60 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

61 Interpretation. S

In this Act, unless the context otherwise requires—

• “the 1980 Act” means the M11 Education (Scotland) Act 1980

• [F41 “the Council" means the Scottish Further and Higher Education Funding Council;] and

• “ prescribed ” means prescribed by order or by regulations made by the Secretary of State.

Textual Amendments

F41 Words in s. 61 inserted (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6) , s. 36(2) , Sch. 3 para. 6(1)(d) ; S.S.I. 2005/419 , art. 2(1)

Commencement Information

I42 S. 61 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817 , art. 3(2) , Sch. 1

Marginal Citations

M11 1980 c. 44 .

62 Transitional provisions, miscellaneous amendments and repeals. S

(1) The transitional, consequential and saving provisions contained in Schedule 8 to this Act shall have effect.

(2) The enactments specified in Schedule 9 to this Act shall have effect subject to the amendments specified in that Schedule.

(3) The enactments specified in Schedule 10 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

Commencement Information

I43 S. 62 partly in force; s. 62 not in force at Royal Assent see s. 63(2); s. 62 partly in force at 16.5.1992, 1.6.1992 and 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 2, 4

63 Short title, commencement and extent. S

(1) This Act may be cited as the Further and Higher Education (Scotland) Act 1992.

(2) This Act shall come into force on such date as the Secretary of State may by order made by statutory instrument appoint; and different days may be so appointed for different provisions or for different purposes.

(3) An order under subsection (2) above may make such transitional and saving provisions as appear to the Secretary of State necessary or expedient in connection with the provision brought into force by the order.

(4) Subject to subsection (5) below, this Act extends to Scotland only.

(5) The amendment by this Act of an enactment which extends to England and Wales or Northern Ireland extends also to England and Wales or, as the case may be, Northern Ireland.

Subordinate Legislation Made

P1 S. 63(2) power partly exercised (16.3.1992): different dates appointed for specified provisions by S.I. 1992/817; power fully exercised (21.11.1998) by S.I. 1998/2886, art.2

Commencement Information

I44 S. 63 wholly in force at 25.4.1992 see s. 63(2) and S.I. 1992/817, art. 3(1)(b)

SCHEDULES

Section 7.

F42 SCHEDULE 1 S The Scottish Further Education Funding Council

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F42 Sch. 1 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(c); S.S.I. 2005/419, art. 2(1)

Section 12.

F43 SCHEDULE 2 S Constitution and proceedings of boards of management

Textual Amendments

F43 Sch. 2 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Status S

F44 1 S A board of management (in this Schedule referred to as “the board”) 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.

Textual Amendments

F44 Sch. 2 para. 1 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Membership S

F45 2 S The board shall consist of not less than ten nor more than sixteen persons.

Textual Amendments

F45 Sch. 2 para. 2 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F46 3 (1) Subject to paragraph 4 below, this paragraph shall have effect as regards the membership of the board. S

(2) The board shall include—

(a) the person who is, for the time being, the principal of the college;

(b) a person appointed by being elected by the teaching staff of the college from among their own number;

(c) a person appointed by being elected by the non-teaching staff of the college from among their own number;

(d) a person appointed by being nominated by the students’ association of the college from among students of the college.

(3) Not less than one half of the total number of members of the board shall be appointed by the board from among persons, not being members of the staff or full-time students of the college, appearing to them to have experience of, and to have shown capacity in, industrial, commercial or employment matters or the practice of any profession; and one such person shall be a person nominated by the local enterprise company for the area in which the college is located.

(4) The remaining members shall be appointed by the board from among persons appearing to them to have, or to represent persons who have, an interest in the work of the college, having regard to the interests of the education authority for the area in which the college is situated in relation to the provision of any form of further education in their area.

(5) In this paragraph, “local enterprise company” means any person with whom an agreement (not being one which has terminated) has been made in pursuance of section 19 of the M12 Enterprise and New Towns (Scotland) Act 1990 by Scottish Enterprise or Highlands and Islands Enterprise for the discharge by that person of any of the functions of Scottish Enterprise or, as the case may be, Highlands and Islands Enterprise.

(6) Any election to be held in pursuance of this paragraph shall be conducted in accordance with rules made by the board after consultation with such persons as appear to the board to be representative of each category of persons entitled to elect a person under this paragraph; and rules made in accordance with this sub-paragraph may be substituted or varied by further such rules.

Textual Amendments

F46 Sch. 2 para. 3 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Marginal Citations

M12 1990 c. 35.

F47 4 (1) This paragraph shall have effect as regards the membership of the board with effect from the first transfer date. S

(2) The persons who are, immediately before the first transfer date, the members of the college council for a college of further education by virtue of Schedule 6 to this Act shall become, on that date, the first members of the board of management of the college.

(3) Where a person becomes a member of the board in pursuance of sub-paragraph (2) above, he shall be taken to have become a member of the board in pursuance of the provision of paragraph 3 above in accordance with which, by virtue of paragraph 1 of Schedule 6 to this Act, he became a member of the college council.

(4) Where the number of persons who become the first members of the board in pursuance of sub-paragraph (2) above is less than sixteen, the board may appoint, in accordance with and having regard to the requirements of paragraph 3 above, such additional members as appears to them to be appropriate; provided that the total number of members of the board shall not at any time exceed sixteen.

(5) As soon as is practicable after the first transfer date and any appointment made under sub-paragraph (4) above, the members of the board shall determine by agreement among them, or failing agreement by ballot, that the persons who occupy the positions on the board mentioned in sub-paragraph (6) below shall hold office for a period of two years.

(6) The positions referred to in sub-paragraph (5) above are seven positions (other than the positions held by the principal and the person appointed by being nominated by the students’ association of the college), whether or not at the time the board makes its determination any or all of such positions are occupied, identified in such manner as the board may so determine.

Textual Amendments

F47 Sch. 2 para. 4 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Qualifications and tenure of office S

5 (1) Subject to this paragraph and paragraphs 6 to 10 below, a member of the board shall hold and vacate office in accordance with the terms of his appointment, and, on such appointment ceasing, shall be eligible for re-appointment. S

(2) Subject to paragraph 4(5) above, a member of the board, other than the person who is, for the time being, the principal of the college and the person appointed by being nominated by the students’ association of the college, shall hold office for a period of four years.

(3) The person who is, for the time being, the principal of the college shall remain a member of the board while he is the principal; and nothing in paragraphs 6 to 9 below shall apply to the principal in his capacity as a member of the board.

(4) A person who is appointed by being nominated by the students’ association of the college shall hold office until 31st August following his appointment.

(5) A member of the board, other than the principal of the college, may resign his office at any time by giving notice in writing to such person as the board may appoint for the purpose.

Commencement Information

I45 Sch. 2 para. 5 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F48 6 (1) A person shall not be eligible for appointment as a member of the board— S

(a) 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 until his term of office otherwise expires in accordance with this Schedule; or

(b) where the total number of years of any previous terms of office (whether or not consecutive) served as a member of that board exceeds eight.

(2) For the purposes of sub-paragraph (1)(b) above, in calculating the number of years served no account shall be taken of any term of office served as a member of a college council.

Textual Amendments

F48 Sch. 2 para. 6 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F49 7 (1) A person is not eligible for appointment as a member of the board if— S

(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;

(c) he is incapacitated by mental illness; or

(d) he has been removed from office by the Secretary of State under section 24 of this Act.

(2) Where a person is disqualified under sub-paragraph (1)(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 M13 Bankruptcy (Scotland) Act 1985.

(3) 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.

(4) 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.

Textual Amendments

F49 Sch. 2 para. 7 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Marginal Citations

M13 1985 c. 66.

F50 8 S If at any time the board are satisfied that any of their members—

(a) has been convicted as mentioned in sub-paragraph (a) of paragraph 7(1) above or has become a person to whom either of sub-paragraphs (b) and (c) of paragraph 7(1) above applies;

(b) has been absent, without the permission of the board, from all meetings of the board or any committee of theirs to which he has been appointed for a period longer than six consecutive months; or

(c) having been appointed in pursuance of paragraph 3(3) above, becomes a full-time student of the college or a member of the staff of the college,

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

Textual Amendments

F50 Sch. 2 para. 8 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F51 9 S If at any time the board are satisfied that any of their members—

F52 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 8 above, has become unable or unfit to discharge his functions as a member of the board [F53 except where such inability or unfitness relates to a contravention or alleged contravention of a member’s code as defined in section 3(8) of the Ethical Standards in Public Life etc. (Scotland) Act 2000,],

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

Textual Amendments

F51 Sch. 2 para. 9 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F52 Sch. 2 para. 9(a) omitted (1.5.2003) by virtue of Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003 (S.S.I. 2003/199), arts. 1, 2, Sch.

F53 Words in Sch. 2 para. 9(c) inserted (1.5.2003) by Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003 (S.S.I. 2003/199), arts. 1, 2, Sch.

F54 10 (1) Any casual vacancy among the members of the board may be filled by their appointing a person to fill the vacancy in like manner to that by which the person to be replaced was appointed. S

(2) Notwithstanding paragraph 5 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.

Textual Amendments

F54 Sch. 2 para. 10 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Proceedings S

F55 11 (1) Subject to paragraphs 12 [F56 and 13] below, the board may regulate their own proceedings and those of any committee appointed by them. S

(2) The validity of any proceedings of the board or of any committee appointed by them shall not be affected by any defect in the appointment of any member of the board or any member of such committee or by a vacancy amongst the members of the board.

(3) Subject to sub-paragraph (5) below, the board shall make available for inspection at the college at all reasonable times by anyone who wishes to inspect them copies of the documents to which this sub-paragraph applies.

(4) The documents to which sub-paragraph (3) above applies are—

(a) the agenda for any meeting of the board or of any committee of theirs;

(b) the draft minutes of any such meeting as approved by the chairman of the meeting;

(c) the minutes of such meeting as agreed by the board or, as the case may be, committee; and

(d) any report or other document considered by such meeting.

(5) Sub-paragraph (3) above shall not apply to any document or part thereof which relates to—

(a) an employee, former employee or applicant for employment in relation to the college;

(b) a person who is, has been, or is likely to be a student of the college;

(c) any information the disclosure of which is prohibited by anything in any enactment (including this Act and an enactment contained in a subordinate instrument) or rule of law;

(d) anything which it appears to the board should be treated as confidential because of its commercial nature or otherwise.

Textual Amendments

F55 Sch. 2 para. 11 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), sch. 1.

F56 Words in Sch. 2 para. 11(1) substituted (1.5.2003) by Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003 (S.S.I. 2003/199), arts. 1, 2, Sch.

Chairman S

F57 12 (1) The board shall appoint one of their members, not being a person who is— S

(a) a student of the college;

(b) an employee of the board;

(c) the principal for the time being of the college; or

(d) a member (whether elected or appointed) or an employee of a local authority,

to be chairman.

(2) The board shall determine the period of appointment of the chairman and may remove him from office as chairman.

(3) Where the chairman ceases to be a member of the board, he shall cease to be chairman.

Textual Amendments

F57 Sch. 2 para. 12 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Committees S

F58 13 (1) The board may establish committees for any purpose and any such committee may appoint sub-committees. S

(2) Such committees may include persons who are not members of the board; but such persons shall not be entitled to vote at meetings of a committee.

(3) The principal of the college shall be entitled to attend and speak at any meeting of a committee of the board; but he shall be entitled to vote at such meeting only if he is a member of such committee.

(4) The board may pay to the members of such committees (whether or not they are also members of the board) such allowances and expenses as they may determine; and any allowances and expenses to be paid by virtue of this sub-paragraph shall be calculated by reference to such criteria as the Secretary of State may determine.

(5) Any reference in this Schedule to a committee of the board shall include a reference to any sub-committee appointed by such committee.

Textual Amendments

F58 Sch. 2 para. 13 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Conflict of interest S

F59 14 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F59 Sch. 2 para. 14 omitted (1.5.2003) by virtue of Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003 (S.S.I. 2003/199), arts. 1, 2, Sch.

Confidentiality of information S

F60 15 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F60 Sch. 2 para. 15 omitted (1.5.2003) by virtue of Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003 (S.S.I. 2003/199), arts. 1, 2, Sch.

Staff S

F61 16 S Subject to section 15 of this Act, the board may appoint on such terms and conditions as they may determine such employees as they think fit.

Textual Amendments

F61 Sch. 2 para. 16 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F62 17 (1) The board may, in the case of such of its employees or former employees as they may, subject to sub-paragraph (2) below, determine— S

(a) pay such pensions, allowances or gratuities to or in respect of those employees;

(b) make such payments towards provision of such pensions, allowances or gratuities; or

(c) make such arrangements for the provision and maintenance of such schemes (whether contributory or not) for the payment of such pensions, allowances or gratuities,

as they think fit.

(2) Sub-paragraph (1) above shall not apply to any person who becomes an employee of the board under or by virtue of any provision of this Act (other than paragraph 16 above) unless that person, by notice given in writing, informs the board that he wishes it so to apply.

(3) The reference in sub-paragraph (1) above to pensions, allowances or gratuities in respect of employees of the board includes a reference to pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of office or employment.

Textual Amendments

F62 Sch. 2 para. 17 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Accounts S

F63 18 (1) It shall be the duty of the board to keep proper accounts and other records. S

(2) The accounts shall be prepared F64 . . . in respect of each financial year in such manner as the [F65 Scottish Ministers] may direct and the accounts shall be submitted to the [F66 Scottish Ministers by such time as they may direct].

[F67 (2A) The Scottish Ministers shall send the accounts to the Auditor General for Scotland for auditing.]

(3) The financial year of the board shall be from 1st April to 31st March.

(4) The Secretary of State may by order provide that the board shall have a different financial year, and an order under this sub-paragraph may make such consequential provision as appears to the Secretary of State to be necessary or expedient.

Textual Amendments

F63 Sch. 2 para. 18 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

F64 Words in Sch. 2 para. 18(2) repealed (1.4.2000) by 2000 asp 1, s. 26(1), Sch. 4 para. 11(3)(a)(i); S.S.I. 2000/10, art. 2(3)

F65 Words in Sch. 2 para. 18(2) substituted (1.4.2000) by 2000 asp 1, s. 26(1), Sch. 4 para. 11(3)(a)(ii); S.S.I. 2000/10, art. 2(3)

F66 Words in Sch. 2 para. 18(2) substituted (1.4.2000) by 2000 asp 1, s. 26(1), Sch. 4 para. 11(3)(a)(iii); S.S.I. 2000/10, art. 2(3)

F67 Sch. 2 para. 18(2A) inserted (1.4.2000) by 2000 asp 1, s. 26(1), Sch. 4 para. 11(3)(b); S.S.I. 2000/10, art. 2(3)

F68 19 S The accounts of the board shall be open to the inspection of the Comptroller and Auditor General, but—

(a) the power conferred by this paragraph; and

(b) the powers under sections 6 and 8 of the M14 National Audit Act 1983 (examinations into the economy, efficiency and effectiveness of certain bodies and access to documents and information) conferred on the Comptroller and Auditor General by virtue of section 6(3)(c) of that Act,

shall be exercisable only in, or in relation to accounts or other documents which relate to, any financial year in which expenditure is incurred by the board in respect of which grants, loans or other payments are made to them under this Part of this Act.

Textual Amendments

F68 Sch. 2 para. 19 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Marginal Citations

M14 1983 c. 44.

Execution of documents S

F69 20 (1) For any purpose other than those mentioned in sub-paragraph (2) below, a document is validly executed by the board if it is signed on their behalf by a member of the board or by their secretary (or any person performing the duties of secretary to the board) or by any person authorised to sign the document on their behalf. S

(2) For the purposes of any enactment or rule of law relating to the authentication of documents, a document is validly executed by the board 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 board 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.

Textual Amendments

F69 Sch. 2 para. 20 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Provision of services S

F70 21 S The M15 Local Authorities (Goods and Services) Act 1970 (supply of goods and services by local authorities to certain public bodies) shall have effect as if the board were a public body within the meaning of that Act.

Textual Amendments

F70 Sch. 2 para. 21 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1.

Marginal Citations

M15 1970 c. 39.

Section 16.

SCHEDULE 3 S Transfer and apportionment of property

Commencement Information

I46 Sch. 3 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Identification of land, other property, rights, liabilities and obligations S

1 (1) In respect of each college of further education prescribed under section 11 of this Act, the education authority and the college council shall, not later than the first transfer date, so far as practicable, arrive at such written agreements and execute such other instruments as are necessary or expedient— S

(a) to identify or define the land, other property, rights, liabilities and obligations to be transferred to and vest in the board of management for the college under section 16 of this Act; or

(b) for making any arrangements such as are mentioned in paragraph 2(2) below as will afford to the authority and the board as against each other such rights and safeguards as they may require for the proper discharge of their respective functions.

(2) Any such agreement shall contain provision so far as is expedient to enable the creation, variation or extinction of interests in land or [F71 title conditions] and for the granting of indemnities.

(3) The education authority shall supply the college council of such a college with such information, including all documents relating to interests in land and [F72 title conditions], as the college council may require for the purposes of this Schedule.

(4) Where no such agreement is arrived at before the first transfer date, the Secretary of State may prescribe a different date by which such an agreement is to be arrived at, and an agreement arrived at in pursuance of this sub-paragraph shall be between the education authority and the board of management for the college and, for the purposes of an agreement arrived at in pursuance of this sub-paragraph, references in this Schedule to the college council shall be construed as references to the board of management.

[F73 (5) In this Schedule, “ title conditions ” has the meaning given by section 122(1) of the Title Conditions (Scotland) Act 2003 (asp 9). ]

Textual Amendments

F71 Words in Sch. 3 para. 1(2) substituted (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), Sch. 14 para. 10(a)(i) (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

F72 Words in Sch. 3 para. 1(3) substituted (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), Sch. 14 para. 10(a)(i) (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

F73 Sch. 3 para. 1(5) substituted (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), Sch. 14 para. 10(a)(ii) (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

Commencement Information

I47 Sch. 3 para. 1 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

2 (1) The land, other property, rights, liabilities and obligations mentioned in section 16(3) or (4) of this Act shall, where their nature permits, be divided or apportioned among the education authority and the board of management of any college for the purposes of which the land or property was held, used or obtained or, as the case may be, in relation to which the rights, liabilities or obligations subsisted in such proportions as may be appropriate. S

(2) Any land or right in relation to land, other property, right, liability or obligation the nature of which does not permit its division or apportionment shall be transferred to the board of management of such a college or retained by the education authority according to—

(a) in the case of land or a right in relation to land, which of the education authority or the board of management of any such college appears, as at the first transfer date, to be likely to experience the greatest practical difficulty through not having possession of that land or, as the case may be, not being able to exercise the right, or where none of them appears likely to experience such difficulty to a greater extent than any other, which of them appears on that date to be likely to make use of the land or right to the greatest extent; or

(b) in the case of any other property or of any right, liability or obligation, which of them appears on the first transfer date to be likely to make use of the property or right or, as the case may be, to be affected by the liability or obligation to the greatest extent,

subject (in either case) to such arrangements for the protection of any party to which the land or other property or right, liability or obligation has not been transferred as may be agreed between the education authority and the college council for any such college or determined by the commissioner for further education assets under paragraph 4 below.

(3) Where any land or any right relating to land falls to be divided or apportioned under sub-paragraph (1) above any rent payable by or to any party in respect of that land and any rates F74 ... or other outgoings running with the land or right shall be correspondingly divided or apportioned.

Textual Amendments

F74 Words in Sch. 3 para. 2(3) repealed (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), Sch. 15 (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

Commencement Information

I48 Sch. 3 para. 2 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Status of agreements etc. under paragraph 1 S

3 (1) An agreement made under paragraph 1 above or any other instrument executed in pursuance of that paragraph shall be conclusive evidence of the matters contained therein. S

(2) No application for the rectification of such an agreement or instrument may be made to the court under section 8 of the M16 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by an education authority or a college council who were a party to such an agreement or instrument without the prior consent, given in writing, of the Secretary of State.

Commencement Information

I49 Sch. 3 para. 3 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Marginal Citations

M16 1985 c. 73.

Resolution of disputes S

4 (1) Where it appears to an education authority or a college council that it is unlikely, in the case of any matter in respect of which an agreement is required to be arrived at under paragraph 1 above, that an agreement will be arrived at, the authority or college council may refer the matter to the Secretary of State. S

(2) Where a matter is so referred, the Secretary of State shall appoint a commissioner for further education assets (in this Schedule referred to as “the commissioner”) who shall, after consulting the education authority and any person whom he considers to have an interest in becoming vested in any property, right, liability or obligation to which such an agreement is intended to relate, determine the matter.

(3) The commissioner shall issue a written determination to the education authority and any college council required to arrive at such an agreement and may include in such determination any provision which could have been included in an agreement or other instrument made under or in pursuance of paragraph 1 above.

(4) A determination made under this paragraph shall have effect for all purposes as if it were an agreement made under paragraph 1 above.

(5) No application for the rectification of a determination under this paragraph may be made to the court under section 8 of the M17 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (rectification of defectively expressed documents) by the commissioner or by an education authority or a college council who are affected by the determination without the prior consent, given in writing, of the Secretary of State.

(6) The education authority shall provide the commissioner with such information, including all documents relating to interests in land or [F75 title conditions], as he may require for the purpose of the exercise of his functions under this paragraph.

Textual Amendments

F75 Words in Sch. 3 para. 4(6) substituted (28.11.2004) by Title Conditions (Scotland) Act 2003 (asp 9), ss. 122(1), 129(2), Sch. 14 para. 10(b) (with ss. 119, 121) (see S.S.I. 2003/456, art. 2)

Commencement Information

I50 Sch. 3 para. 4 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Marginal Citations

M17 1985 c. 73.

Right to production of documents of title S

5 (1) Where any land or other property is, or rights, liabilities or obligations are, transferred to and vest in the board of management of any college under section 16 of this Act, the education authority shall deliver to the board of management all documents of title relating solely to such land or other property and all documents relating solely to such rights, liabilities or obligations. S

(2) Without prejudice to sub-paragraph (1) above, the board of management of any college to whom any land or other property has, or rights, liabilities or obligations have, been transferred in accordance with section 16 of this Act shall be entitled at any time to require any person having possession of any document of title or other document relating to such land, other property, rights, liabilities or obligations to produce to them such documents.

(3) No charge may be made in respect of anything done in pursuance of this paragraph.

Commencement Information

I51 Sch. 3 para. 5 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Third parties affected by vesting S

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. S

(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.

Commencement Information

I52 Sch. 3 para. 6 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

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

7 S 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.

Commencement Information

I53 Sch. 3 para. 7 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Section 16.

SCHEDULE 4 S Commissioners for further education assets

Commencement Information

I54 Sch. 4 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Appointment and tenure S

1 S 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.

Commencement Information

I55 Sch. 4 para. 1 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

2 S 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.

Commencement Information

I56 Sch. 4 para. 2 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

3 S 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.

Commencement Information

I57 Sch. 4 para. 3 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

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

Commencement Information

I58 Sch. 4 para. 4 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

5 S 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.

Commencement Information

I59 Sch. 4 para. 5 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Functions S

6 S 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.

Commencement Information

I60 Sch. 4 para. 6 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

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

Commencement Information

I61 Sch. 4 para. 7 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

8 S The commissioner shall not delegate any of his functions.

Commencement Information

I62 Sch. 4 para. 8 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Status S

9 S 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.

Commencement Information

I63 Sch. 4 para. 9 wholly in force at 1.9.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 3

Section 34.

SCHEDULE 5 S Transitional provisions for college councils

Commencement Information

I64 Sch. 5 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Contracts of employment S

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

(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.

Commencement Information

I65 Sch. 5 para. 1 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Information S

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. S

(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.

Commencement Information

I66 Sch. 5 para. 2 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Payment of grants by Secretary of State S

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. S

(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.

Commencement Information

I67 Sch. 5 para. 3 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Directions S

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. S

(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.

Commencement Information

I68 Sch. 5 para. 4 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Allowances S

5 S 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.

Commencement Information

I69 Sch. 5 para. 5 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

College development plans S

6 S Regulation 13(1)(a) of The M18 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.

Commencement Information

I70 Sch. 5 para. 6 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M18 S.I. 1990/1637.

Accounts S

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

(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.

Commencement Information

I71 Sch. 5 para. 7 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Continuity of exercise of functions S

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. S

(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.

Commencement Information

I72 Sch. 5 para. 8 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Establishment of students’ associations S

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. S

(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.

Commencement Information

I73 Sch. 5 para. 9 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Status S

10 S 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.

Commencement Information

I74 Sch. 5 para. 10 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Section 34.

SCHEDULE 6 S Transitional composition of college councils

Commencement Information

I75 Sch. 6 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Membership of college councils S

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. S

(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.

Commencement Information

I76 Sch. 6 para. 1 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Terms of appointment S

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. S

(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.

Commencement Information

I77 Sch. 6 para. 2 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Eligibility for appointment S

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. S

(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

(c) he is incapacitated by mental illness.

(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 M19 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.

Commencement Information

I78 Sch. 6 para. 3 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M19 1985 c. 66.

Disqualification from appointment S

4 S 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.

Commencement Information

I79 Sch. 6 para. 4 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

5 S 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 M20 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.

Commencement Information

I80 Sch. 6 para. 5 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M20 S.I. 1990/1637.

Casual vacancy S

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. S

(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.

Commencement Information

I81 Sch. 6 para. 6 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Section 37.

F76 SCHEDULE 7 S The Scottish Higher Education Funding Council

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F76 Sch. 7 repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(c); S.S.I. 2005/419, art. 2(1)

Section 62.

SCHEDULE 8 S Transitional, consequential and saving provisions

Commencement Information

I82 Sch. 8 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Part I S Provisions relating to Part I of this Act

Supply of services S

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

(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

(c) the arrangement is to subsist for any period after that date,

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 M21 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.

Commencement Information

I83 Sch. 8 para. 1 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Marginal Citations

M21 1988 c. 9.

Appointment of staff by education authority S

2 S 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.

Commencement Information

I84 Sch. 8 para. 2 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

General S

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. S

(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.

Commencement Information

I85 Sch. 8 para. 3 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Part II S Provisions relating to Part II of this Act

Saving for regulations under section 77 of the 1980 Act S

4 (1) Subject to sub-paragraph (2) below, the repeal by section 62(3) of and Schedule 10 to this Act of section 77 of the 1980 Act shall not affect any regulations made under that section. S

(2) This paragraph is without prejudice to the power of—

(a) the Privy Council under section 45 of this Act; and

(b) the Secretary of State under section 47 of this Act,

to amend, vary or revoke the provisions of any such regulations.

Commencement Information

I86 Sch. 8 para. 4 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Section 62.

SCHEDULE 9 U.K. Miscellaneous and consequential amendments

Teaching Council (Scotland) Act 1965 (c. 19) S

1 (1) The Teaching Council (Scotland) Act 1965 shall be amended as follows. S

(2) In the following table, the expressions specified in column 3 shall be substituted for the expressions specified in column 2 where they occur in the provisions specified in column 1.

Provision	Existing expression	Expression to be substituted
Sections 5 and 6.	“college of education”	“ relevant institution ”
Section 5 and Schedule 1, paragraphs 1, 2 and 6.	“colleges of education”	“ relevant institutions ”
Section 5 and Schedule 1, paragraph 1.	“col leges”	“ institutions ”
Section 5.	“col lege”	“ institution ”

(3) In subsection (2) of section 2 (standards for entry to the teaching profession)—

(a) for the word “conditions” there shall be substituted the word “ matters ”; and

(b) for the words “section 7” there shall be substituted the words “ section 7(1)(b) to (d) ”.

(4) In subsection (1) of section 5 (duty of the teaching council in relation to colleges of education)—

(a) in paragraph (a) for the words “nature of the instruction given” there shall be substituted the words “ education and training of teachers ”; and

(b) in paragraph (b) for the words from “section 81 of the Act of 1962” to the end of the subsection there shall be substituted the words “ section 7 of this Act. ”

(5) In Schedule 1—

(a) in paragraph 1(1)(b)(v), after the words “ the central institutions” there shall be inserted the words “ and such institutions in the higher education sector (other than universities) as are not relevant institutions ”;

(b) in paragraph 1(3) for the words from “and to the central institutions” to the words “falls to be made;” there shall be substituted the words “ , the central institutions and institutions in the higher education sector shall be construed, in relation to any appointment, as references to the universities of Scotland or, as the case may be, such institutions established at the time the appointment falls to be made; ”;

(c) in paragraph 1(3)(b)(ii)—

(i) at the beginning there shall be inserted the words “ a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992, ”; and

(ii) after the word “attending” there shall be inserted the words “ designated institutions, ”; and

(d) after paragraph 6 there shall be inserted the following paragraph—

“6A In Part I of this Schedule, any reference to the principal of a relevant institution shall be construed, as regards a relevant institution which does not have as its sole or main activity the provision of courses for the education and training of teachers, as a reference to the person responsible to the principal of the institution for administering such courses.”

Commencement Information

I87 Sch. 9 para. 1 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Veterinary Surgeons Act 1966 (c. 36) U.K.

2 U.K. In Schedule 3 to the Veterinary Surgeons Act 1966 (exemptions from restrictions on practice of veterinary surgery), in the definition of “recognised institution” for the purposes of paragraph 5, in paragraph (b) of the definition—

(a) for sub-paragraph (i) there shall be substituted—

“(i) any educational establishment (not being a school) within the meaning of section 135(1) of the Education (Scotland) Act 1980 for the provision of any form of further education for the management of which establishment an education authority is responsible;

(iA) any college of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 which is managed by a board of management established under that Act;”;

(b) after sub-paragraph (ii) the word “or” shall be omitted; and

(c) after sub-paragraph (iii) there shall be inserted the words “or

(iv) a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992;”.

Commencement Information

I88 Sch. 9 para. 2 wholly in force; Sch. 9 para. 2 not in force at Royal Assent see s. 63(2); Sch 9 para. 2 in force at 16.5.1992 for the purposes of paras. (b) and (c) and in force at 1.4.1993 so far as not already in force by S.I. 1992/817, art. 3(2), Schs. 1, 4

Chronically Sick and Disabled Persons Act 1970 (c. 44) E+W+S

3 E+W+S In subsection (2) of section 8 of the Chronically Sick and Disabled Persons Act 1970 (access to, and facilities at, university and school buildings) for paragraph (c) there shall be substituted the following paragraph—

“(c) educational establishments within the meaning of section 135(1)

of the Education (Scotland) Act 1980.”

Commencement Information

I89 Sch. 9 para. 3 wholly in force at 16.5.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 1

Sex Discrimination Act 1975 (c. 65) E+W+S

4 (1) The Sex Discrimination Act 1975 shall be amended as follows. E+W+S

(2) In section 22 (prohibition of discrimination in relation to certain educational establishments), in the Table—

(a) after paragraph 7A there shall be inserted the following paragraph—

“7B. College of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 under the management of a board of management.

Board of management.”;

(b) after paragraph 7B inserted by sub-paragraph (a) above there shall be inserted the following paragraph—

“7C. Designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992.

Governing body.”

F77 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In sub-paragraph (c)(i) of subsection (6) of section 25 (bodies with a general duty to provide education without discrimination) for the words “7 or 7A” there shall be substituted the words “ 7, 7A, 7B or 7C ”.

(5) In section 82(1) (interpretation) after the definition of “board of management” there shall be inserted the following definition—

““Board of management” in relation to a college of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992, has the same meaning as in that Part;”.

(6) In paragraph 6 of Schedule 2 (applications by certain bodies for transitional exemption orders) for the words “7 or 7A” there shall be substituted the words “ 7, 7A, 7B or 7C ”.

Textual Amendments

F77 Sch. 9 para. 4(3) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(d); S.S.I. 2005/419, art. 2(1)

Commencement Information

I90 Sch. 9 para. 4 wholly in force; Sch. 9 para. 4 not in force at Royal Assent see s. 63(2); Sch. 9 para. 4(1)(2)(4)(5)(6) fully in force at 16.5.1992 and para. 4(3) in force at 1.6.1992 so far as relating to the Scottish Higher Education Funding Council by S.I. 1992/817, art. 3(2), Schs. 1, 2; Sch. 9 para. 4(3) in force at 21.11.1998 so far as not already in force by S.I. 1998/2886, art. 2

Race Relations Act 1976 (c. 74) E+W+S

5 (1) The Race Relations Act 1976 shall be amended as follows. E+W+S

(2) In section 17 (prohibition of discrimination in relation to certain educational establishments), in the Table—

(a) after paragraph 7A there shall be inserted the following paragraph—

“7B. College of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 under the management of a board of management.

Board of management.”;

(b) after paragraph 7B inserted by sub-paragraph (a) above there shall be inserted the following paragraph—

“7C. Designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992.

Governing body.”

F78 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F79 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In section 78(1) (interpretation) after the definition of “board of management” there shall be inserted the following definition—

““board of management” in relation to a college of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992, has the same meaning as in that Part;”.

Textual Amendments

F78 Sch. 9 para. 5(3) repealed (3.10.2005) by Further and Higher Education (Scotland) Act 2005 (asp 6), s. 36(2), Sch. 3 para. 6(2)(d); S.S.I. 2005/419, art. 2(1)

F79 Sch. 9 para. 5(4) repealed (2.4.2001) by 2000 c. 34, s. 9(2), Sch. 3 (with s. 10(5)); S.I. 2001/566, art. 2(1)

Commencement Information

I91 Sch. 9 para. 5 wholly in force; Sch. 9 para. 5 not in force at Royal Assent see s. 63(2); Sch. 9 para. 5(1)(2)(4)(5) fully in force at 16.5.1992 and para. 5(3) in force at 1.6.1992 so far as relating to the Scottish Higher Education Funding Council by S.I. 1992/817, art. 3(2), Schs. 1, 2; Sch. 9 para. 5(3) in force at 21.11.1998 so far as not already in force by S.I. 1998/2886, art. 2

Employment Protection (Consolidation) Act 1978 (c. 44) E+W+S

F80 6 E+W+S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F80 Sch. 9 para. 6 repealed (22.8.1996) by 1996 c. 18, ss. 242, 243, Sch. 3 Pt. I

Education (Scotland) Act 1980 (c. 44) S

7 (1) The Education (Scotland) Act 1980 shall be amended as follows. S

(2) After section 14 there shall be inserted the following section—

“14ZA Meaning of pupil in sections 12 to 14.

In sections 12 to 14 of this Act and in section 52 of this Act as it relates to the said section 13, any reference to a pupil shall include a reference to a student attending a college of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992.”

(3) In section 17 (provision, maintenance and equipment of certain accommodation)—

(a) in each of subsections (1) and (3) there shall be inserted at the beginning the words “ Subject to subsection (6) below, ”; and

(b) after subsection (5) there shall be inserted the following subsection—

“(6) Subsections (1) and (3) above shall have effect as regards further education only to the extent that the education authority is under a duty to do anything under the said sections 1 to 6.”

F81 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In section 66 (inspection of educational establishments) after the words “other educational establishment” there shall be inserted the words “ (other than a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992) ”.

(6) In section 68 (power to require submission to medical examination)—

(a) after the word “pupil” where it first occurs there shall be inserted the words “ or other person enrolled at an educational establishment ”; and

(b) after the word “pupil” where it fourth and fifth occurs there shall be inserted the words “ or other person ”.

(7) In subsection (1) of section 135 (interpretation) in the definition of “educational establishment”, in paragraph (ii) after the word “ includes ” there shall be inserted the words “ a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992, ”.

Textual Amendments

F81 Sch. 9 para. 7(4) repealed (14.11.2005) by Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), s. 35(1), Sch. 3 para. 7(b); S.S.I. 2005/564, art. 2

Commencement Information

I92 Sch. 9 para. 7 wholly in force; Sch. 9 para. 7 not in force at Royal Assent se s. 63(2); para. 7(1)(7) in force at 16.5.1992 and para. 7(2)-(6) in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4

Education (Fees and Awards) Act 1983 (c. 40) E+W+S

8 (1) Section 1 of the Education (Fees and Awards) Act 1983 (different fees for students not connected with the United Kingdom) shall be amended as follows. E+W+S

(2) In subsection (3), after paragraph (ca) inserted by the Further and Higher Education Act 1992 there shall be inserted the following paragraph—

“(cb) any designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992; and”.

(3) In paragraph (d) of that subsection—

(a) after the word “Scotland” there shall be inserted “ (i) ”; and

(b) at the end of the paragraph there shall be inserted “; or

(ii) which is a college of further education for which there is a board of management established under Part I of the Further and Higher Education (Scotland) Act 1992.”

Commencement Information

I93 Sch. 9 para. 8 wholly in force; Sch. 9 para. 8 not in force at Royal Assent see s. 63(2); para. 8(1)(2) in force at 16.5.1992 and para. 8(3) in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4

Mental Health (Scotland) Act 1984 (c. 36) S

F82 9 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F82 Sch. 9 para. 9 repealed (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), Sch. 5 Pt. 1; S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)

Education Reform Act 1988 (c. 40) E+W+S

10 E+W+S In section 235 of the Education Reform Act 1988 (general interpretation) after subsection (5) there shall be inserted the following subsection—

“(5A) Any reference in any provision of this Act which extends to Scotland to a higher education funding council shall, in the application of that provision to Scotland, be construed as a reference to the Scottish Higher Education Funding Council.”

Commencement Information

I94 Sch. 9 para. 10 wholly in force at 1.6.1992 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 2

Self-Governing Schools etc. (Scotland) Act 1989 (c. 39) S

11 S In section 70 of the Self-Governing Schools etc. (Scotland) Act 1989 (power of Secretary of State to require regular appraisal of teachers) in subsection (1) for paragraph (d) there shall be substituted the following—

“(d) the boards of management of colleges of further education within the meaning of Part I of the Further and Higher Education (Scotland) Act 1992,”.

Commencement Information

I95 Sch. 9 para. 11 wholly in force at 1.4.1993 see s. 63(2) and S.I. 1992/817, art. 3(2), Sch. 4

Education (Student Loans) Act 1990 (c. 6) U.K.

12 (1) The Education (Student Loans) Act 1990 shall be amended as follows. U.K.

(2) In section 1 (loans for students), in subsection (3) for paragraph (b) there shall be substituted the following paragraph—

“(b) educational establishments within the meaning of section 135(1) of the Education (Scotland) Act 1980 for the provision of any form of further education for the management of which establishment an education authority is responsible, colleges of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 managed by boards of management established under Part I of that Act and designated institutions within the meaning of Part II of that Act of 1992”.

(3) In paragraph 2(2) of Schedule 2 (certificates to be issued by governing bodies) for the words from “a college of further education” there shall be substituted the following sub-paragraphs—

“(a) an educational establishment (not being a school) within the meaning of section 135(1) of the Education (Scotland) Act 1980 for the provision of any form of further education for the management of which establishment an education authority is responsible, the education authority;

(b) a college of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 which is managed by a board of management established under Part I of that Act, the board of management.”

Commencement Information

I96 Sch. 9 para. 12 wholly in force; Sch. 9 para. 12 not in force at Royal Assent see s. 63(2); para. 12(1)(2) in force at 16.5.1992 and para. 12(3) in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4

Environmental Protection Act 1990 (c. 43) E+W+S

13 E+W+S In section 98 of the Environmental Protection Act 1990 (definitions) in subsection (3)—

(a) for paragraph (c) there shall be substituted the following paragraph—

“(c) any educational establishment (not being a school) within the meaning of section 135(1) of the Education (Scotland) Act 1980 for the provision of any form of further education for the management of which establishment an education authority is responsible;

(cc) any college of further education within the meaning of section 36(1) of the Further and Higher Education (Scotland) Act 1992 managed by a board of management established under Part I of that Act;”;

(b) for paragraph (d) there shall be substituted the following paragraph—

“(d) a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992;”; and

(c) in paragraph (f) for the words “1980 Act” there shall be substituted the words “ Education (Scotland) Act 1980 (“the 1980 Act”) ”.

Commencement Information

I97 Sch. 9 para. 13 wholly in force; para. 13 in force at 16.5.1992 for the purposes of para. 13(b)(c) and in force at 1.4.1993 so far as not already in force by S.I. 1992/817, art. 3(2), Schs. 1, 4

Section 62.

SCHEDULE 10 U.K. Repeals

Extent Information

E2 Sch.10 extends to England and Wales and to Scotland or Northern Ireland also if amended enactment so extends. see S.62(3).

Commencement Information

I98 Sch. 10 wholly in force; Sch. 10 not in force at Royal Assent see s. 63(2); the entries in Sch. 10 relating to the Employment Protection (Consolidation) Act 1978 and the Education (Scotland) Act 1980 in force at 16.5.1992 and the entries relating to the School Boards (Scotland) Act 1988 and the Self-Governing Schools etc. (Scotland) Act 1989 in force at 1.4.1993 by S.I. 1992/817, art. 3(2), Schs. 1, 4.

Chapter	Short t itle	Extent of repeal
1978 c. 44.	The Employment Protection (Consolidation) Act 1978.	In section 29, in paragraph (e) of subsection (1) the words “or college”.
1980 c. 44.	The Education (Scotland) Act 1980.	In section 3, in subsection (1) the words “and compulsory further education” and in subsection (6)(a) the word “voluntary”.In section 7, subsections (1), (2), (3), (7) and (8).In section 135(1), the definition of “college of education” and in paragraph (ii) of the definition of “educational establishment” the words “a college of education”.
1988 c. 47.	The School Boards (Scotland) Act 1988.	In section 8, paragraph (b) of subsection (4). In section 22, in subsection (2) the definition of “college council”
1989 c. 39.	The Self-Governing Schools etc. (Scotland) Act 1989.	Sections 54 to 66. In section 80, in subsection (1) the definition of “college of further education”