Official Report 117KB pdf
Further and Higher Education (Scotland) Bill: Stage 1
I welcome members to the 35th meeting this year of the Subordinate Legislation Committee. I have received no apologies for today's meeting. We move swiftly on to delegated powers scrutiny and the Executive's responses to our questions on the Further and Higher Education (Scotland) Bill. We did not receive those responses until last Tuesday evening, so we are dealing with them this week. Ruth Cooper, the clerk, will quickly transmit our responses to the lead committee, which I think meets this afternoon.
I will attend this afternoon's meeting of the Enterprise and Culture Committee. If this committee agrees, I will update that committee on the basis of the note that I believe our clerk will send to the clerk to the Enterprise and Culture Committee.
That would be very useful. Is that agreed?
The first power on which we need to make a decision is under section 5(7) of the bill. It relates to programmes of learning, and allows ministers to modify the descriptions of programmes under the two headings of "fundable further education" and "fundable higher education". The Executive points out that section 5(8) states:
I support that view. Under the next section that we are to consider, the Executive has conceded the same point. It is entirely reasonable that the same logic should apply in the case of section 5. I think that we should report to the lead committee as such.
Is that agreed?
I see no reason why the affirmative procedure should not be used. It is baffling that the Executive did not agree to that. We should push that point.
Yes. The legal brief also highlights a point about the Further and Higher Education (Scotland) Act 1992. We are a bit worried about the fact that the Executive keeps referring to it. We were wondering how much scrutiny was made of that.
Section 7(4) is also on further provision in relation to fundable bodies. This is more technical. If members are content with the response that we have received, then I think that we will leave the matter where it is.
Section 7(5) is on the power to issue guidance. We were concerned whether guidance under the bill should be laid before the Parliament. Our question was one of clarification. We have now received that. What are members' feelings on the issue?
Although there is no explicit requirement on the proposed new funding council to pay heed to the guidance, I think that the council would be very foolish if it did not do so, and that it might at the very least find itself the subject of ministerial comment. I suggest that we should be content with the response that we have received.
Is it agreed that we leave the matter there?
Section 8(6) is on the funding of the new funding council. This is the matter that the lead committee was most concerned about. We raised the issue of using the affirmative procedure in this case. The Executive has said that, at stage 2, it will modify the procedure to be used. I think that we should be happy with the Executive's response, which we welcome.
Section 8(7) is also on the funding of the new council. The provision gives ministers the power to specify fee levels. We were fairly concerned about the power. Members will recall that we suggested that the affirmative procedure should become the super-affirmative procedure in this case. We know that there have not been many occasions on which the super-affirmative procedure has been used, and we very much want to consider how it might be used in the future under our review of subordinate legislation. The Executive clearly does not want to use it at this stage. It is considering a possible amendment to make a statutory requirement for consultation. We could fall back on that and say that that is okay. However, we would want to ensure that such consultation was taken notice of. We might want to frame that in our response to the Executive. We might also want to say that we still think that the super-affirmative procedure should be considered for the future.
I spoke earlier about the new funding council needing to take heed of guidance. In this instance, it is not reasonable to assume that ministers will take heed of a consultation just because one has been carried out. It would be appropriate for such a requirement to be written into the legislation. I note the Executive's point about the use of the super-affirmative procedure. Perhaps we ought to postpone any further confrontation on the matter until we have done our review and clarified our thoughts a little more. I see no harm, however, in mentioning again our view that the super-affirmative procedure can be a useful tool.
I ask Ruth Cooper to frame that for us in our response. I think that we are all agreed on our position.
We come now to section 22(4)(j), which is on consultation and collaboration. We raised a point about careless drafting, which has been accepted. Are we okay on that?
We will draw the matter to the attention of the lead committee.
I thank members very much for their consideration of the bill, which we had to finish today.
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Executive Responses