Official Report 552KB pdf
The purpose of this item is for the committee to consider the delegated powers provisions in the Higher Education Governance (Scotland) Bill at stage 1 and to agree the questions that it wishes to raise with the Scottish Government on those powers in written correspondence. We will have an opportunity to consider the Government’s response at a future meeting in order to inform a draft report.
Section 1 provides that the chairing member of the governing body of a higher education institution—HEI—is to be appointed in accordance with a process set out in regulations made by the Scottish ministers. The appointment of chairing members is a key policy in the bill and is understood to be a matter of considerable controversy among HEI stakeholders.
Does the committee therefore agree to ask the Scottish Government: to explain why it is considered appropriate for the basic framework for the appointment of chairing members to be postponed to secondary legislation; and to consider whether the basic framework for the appointment of chairing members could be set out on the face of the bill and therefore be made subject to full parliamentary consultation and debate, with the detail of the process to be set out in regulations?
Members indicated agreement.
Section 2 provides that the Scottish ministers may by regulations make provision for remuneration and allowances to be payable by an HEI to the chairing member of the governing body of the institution. The principle of remuneration for chairing members is a new concept for HEIs and has met with some opposition among stakeholders.
Does the committee therefore agree to ask the Scottish Government: to explain why it is considered appropriate for the principle and basic framework of remuneration for chairing members to be postponed to secondary legislation; and to consider whether the principle and basic framework of remuneration for chairing members could be set out on the face of the bill and therefore be made subject to full parliamentary consultation and debate, with the detail to be set out in regulations?
Members indicated agreement.
Section 8 gives a power to the Scottish ministers to modify section 4 of the bill, which sets out the requirements for the composition of the governing body of an HEI. The proposed requirements as to the composition of governing bodies as set out in the bill have met with opposition among HEIs.
Does the committee therefore agree to ask the Scottish Government to consider whether a requirement could be included on the face of the bill for the Scottish ministers to consult affected HEIs before making regulations under section 8 to modify such requirements, in similar terms to the existing requirement for consultation before exercising the powers in sections 1 and 2 of the bill?
Members indicated agreement.
Section 13 gives a power to the Scottish ministers to modify sections 9 and 10 of the bill, which set out the requirements for the size and composition of the academic board of an HEI. The proposed requirements as to the size and composition of the academic board of an HEI as set out in the bill have met with opposition among HEIs.
Does the committee therefore agree to ask the Scottish Government to consider whether a requirement could be included on the face of the bill for the Scottish ministers to consult affected HEIs before making regulations under section 13 to modify such requirements, in similar terms to the existing requirement for consultation before exercising the powers in sections 1 and 2 of the bill?
Members indicated agreement.
Section 15(1) sets out the definition of an HEI for the purposes of part 1 of the bill. HEI has the same meaning as in the Further and Higher Education (Scotland) Act 2005: a university or an institution providing higher education designated by the secretary of state. However, a university or designated institution falls within the definition only if it is also listed in schedule 2—“Fundable bodies”—to that act. That schedule lists the bodies that may receive funding from the Scottish Further and Higher Education Funding Council. The Open University is specifically excluded from the definition.
Section 15(2) provides that the Scottish ministers may by regulations modify the definition set out in section 15(1) so as to include or exclude a particular institution. Given that the definition of “higher education institution” determines which institutions are subject to the Government’s requirements as set out in the bill, changes to the definition to include or exclude a particular institution could have a sizeable impact on the institution.
Does the committee therefore agree to ask the Scottish Government for clarification as to why a power to include a higher education institution in the definition is required, since it appears that the definition in the bill will already catch all universities and designated institutions, other than the Open University, that may receive funding from the Scottish Further and Higher Education Funding Council by virtue of being included in schedule 2 to the Further and Higher Education (Scotland) Act 2005?
Does the committee also agree to ask the Scottish Government: for examples of when a power to include a higher education institution in the definition might be used; why the negative procedure is considered appropriate in this case, given the potential impact on a higher education institution of a modification of the definition so as to include it; and to consider whether a requirement could be included on the face of the bill for ministers to consult affected HEIs before making any regulations under section 15, again given the potential impact on affected institutions, in similar terms to the existing requirement for consultation before exercising the powers in sections 1 and 2 of the bill?
Members indicated agreement.