Subordinate Legislation Committee, 07 Mar 2006

Meeting date: Tuesday, March 7, 2006

Official Report 238KB pdf

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Executive Responses

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Charity Test (Specified Bodies) (Scotland) Order 2006 (draft)<br />Further and Higher Education (Scotland) Act 1992 Modification Order 2006 (draft)

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Protection of Charities Assets (Exemption) (Scotland) Order 2006 (draft)

We asked the Executive two questions on the orders. First, we asked when it is intended that section 7 of the Charities and Trustee Investment (Scotland) Act 2005 will be commenced in full, and we have been told that section 7 is due to come into force on 24 April 2006. The coming into force of the orders will therefore coincide with the coming into force of the substantive provision of the act. Are members happy for us to bring that information to the attention of the lead committee and of the Parliament?

Members indicated agreement.

Secondly, we asked why the Executive did not consult more widely on the orders. As you will see from the response, the Executive has indicated that the consultation that was carried out was more extensive than what appeared in the Executive note, so one might ask why that information was not included in the Executive note.

The legal brief also observes that, in relation to the draft Further and Higher Education (Scotland) Act 1992 Modification Order 2006, the Executive has not indicated whether there were any representations or whether any action was taken to address concerns. Not only did the Executive consult more than it admitted to, but it has not reported fully on the extent to which it did consult, which seems quite unsatisfactory. It might be worth asking the Executive to clarify that further point, even though it may be too late.

Unfortunately, we have to report.

We could report that, although we asked the Executive about consultation, we did not get a response on the draft Further and Higher Education (Scotland) Act 1992 Modification Order 2006 and that, at the time of reporting, a definitive response from the Executive on the matter was awaited.

We need to report that to the lead committee and to the Parliament. We should also say something about the Executive note being a little inadequate.

I seek clarification on an issue on which other members might have received information before last week's meeting, but I did not. I have since picked up a letter that was sent to us by the Scottish Trades Union Congress, in which it flags up its concerns about the lack of consultation on the proposed modifications to the Further and Higher Education (Scotland) Act 1992.

I am talking about policy matters, on which the STUC's view is clear. It thinks that ministerial powers of direction are so important in ensuring good governance in colleges that their maintenance is more important than colleges' retention of charitable status, which generates only between 3 per cent and 3.5 per cent of their income. Ensuring good governance is particularly important, given the examples of poor governance that exist in some Scottish colleges.

I had not seen the letter last week. The lead committee should be made aware of the STUC's concerns on an important matter. The letter states:

"The STUC is deeply alarmed and disappointed that the Order was laid in the Scottish Parliament without meaningful consultation with all stakeholders including staff, unions, students and employers."

It is possible that the organisation is revisiting an issue that was debated extensively—people sometimes do that—but I do not think that that is the case on this occasion. The STUC is extremely worried that the proposals are not being discussed fully. In other words, the debate that took place during stage 1 consideration of the Charities and Trustee Investment (Scotland) Bill was a debate about how to preserve the income of further and higher education institutions, whereas ministerial powers of intervention are vital for other reasons.

I will ask the clerk whether we received any other material.

The STUC's point about consultation is not merely academic. A significant number of stakeholders have concerns about the proposed policy change, which at the very least should be discussed. We should flag that up to the lead committee and to the Executive.

Do other members have anything to add?

I want to raise a procedural matter. Although Ken Macintosh is the only member to have a paper copy of the briefing in question with him, I think that all members received it electronically. Given that it has informed our discussions, it might be appropriate for us to treat it as a tabled paper and to add it to the papers for the meeting to help any third party who might wish to follow proceedings. That would be a good exercise in transparency.

We can add the letter to the various documents for the meeting.

We will draw those matters, including the point about the Executive note, to the attention of the lead committee and the Parliament and we will include in the papers the material that Ken Macintosh has brought to our attention. Is that agreed?

Members indicated agreement.

The point has also been made that the lack of adequate consultation could make the orders ultra vires. We will mention that in the report, too.