Post-16 Education (Scotland) Bill: Stage 1
The purpose of this item is for the committee to consider the delegated powers in the Post-16 Education (Scotland) Bill. In considering the bill, the committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill. It is suggested that those questions be raised in written correspondence. On the basis of the responses that are received, the committee would expect to consider a draft report at its meeting on 5 February.
Section 4 enables the Scottish ministers to make an order that prescribes the upper limit on tuition fees that are chargeable to students from the rest of the United Kingdom in respect of higher education courses. Given the reliance that is placed on the fact that fees will not exceed those that are chargeable elsewhere in the United Kingdom, does the committee agree to ask the Scottish Government to explain what level of parliamentary scrutiny applies when higher education fees are set by the relevant rule-making authorities in each part of the UK; and, further to that, why—given that in Scotland, under section 9 of the Further and Higher Education (Scotland) Act 2005, the setting of fees for higher education courses is subject to a form of super-affirmative procedure—the negative procedure is considered to be appropriate when the maximum fees that are payable by students from the rest of the UK are set?
Members indicated agreement.
Section 7 of the bill substitutes the existing section 24 of the Further and Higher Education (Scotland) Act 1992 with a new section 24. At present, section 24 enables the Scottish ministers to remove members of a college’s board of management for mismanagement of the affairs of the board. The replacement section 24 specifies additional circumstances in which the ministers may remove board members.
Does the committee agree to ask the Scottish Government to explain why it is considered necessary to expand on the original powers to remove board members in section 24 of the 1992 act to the extent that is set out in the substituted section; the basis for reaching that conclusion; and the basis for concluding that the negative procedure continues to be the appropriate level of parliamentary scrutiny, given the substantial expansion of the powers in question and the resulting impact on the independence of boards of management and their members?
Members indicated agreement.
I agree. As I understand it, what is proposed is quite a radical extension of the existing powers. I emphasise the point that we need a very strong justification for the increased scope of the powers.
I agree with that sentiment. The independence of boards is important, particularly as colleges amalgamate and the number of colleges in Scotland overall is reduced. I am keen to find out why the Government needs the proposed additional powers.
Section 12 will insert new section 23N into the 2005 act. It appears to be closely modelled on the replacement section 24 of the 1992 act, which we just agreed to ask the Scottish Government for further explanation of, and it is applicable to the regional boards. Any variations appear merely to reflect the differing functions of the colleges and the regional boards.
Does the committee agree to await any explanation that is offered by the Scottish ministers in response to the previous question before forming a view on the power?
Members indicated agreement.
The bill will insert into the 2005 act a new schedule 2A, which specifies the regional strategic bodies. Section 8(1) will insert section 7B, which will give the Scottish ministers powers to modify the schedule. Section 13 will insert into the 2005 act a new section 23O, which makes supplemental provision about the establishment and abolition of regional boards.
Does the committee agree to ask the Scottish Government to clarify the level of parliamentary procedure that is intended to apply to the power, given that the effect of section 34 of the 2005 act is to make it subject to the negative procedure, when the delegated powers memorandum indicates that the affirmative procedure is applicable; to explain whether, standing the analogy with the procedure that is applicable to orders under section 7(1) of that act, it is intended that the appropriate procedure is the one that is applicable to section 7(1) as it stands, or section 7(1) as prospectively amended by paragraph 6(20) of the schedule to the bill; and to say what steps it proposes to take to ensure that the bill adequately reflects its policy intentions in respect of the parliamentary procedure that is applicable to the power?
Members indicated agreement.
I agree. We need clarification about the circumstances in which affirmative and negative procedures will be used. It is far from impossible that I might have missed the point, but the circumstances in which one procedure or the other will be applied, who will decide that and whether the Parliament will be able to scrutinise such matters are not immediately clear to me.
The plan is that, through these questions, we will invite the Government to provide some explanation.
Schedule 2B to the 2005 act, which is inserted by section 11(2) of the bill, provides for regional boards’ constitution, functions and administrative arrangements. Paragraph 18(1) of the schedule confers on the Scottish ministers a power to modify the schedule—with the exception of paragraph 2, which relates to the status of boards—
“by varying, adding to or removing any of its provisions relating to a regional board’s constitution, functions or administrative arrangements.”
Does the committee agree to ask the Scottish Government whether it is in a position to explain why the negative procedure is appropriate, given that the power modifies primary legislation and that the committee does not consider the reference to the procedure applicable under the Further and Higher Education (Scotland) Act 1992 to be conclusive, especially as no powers in the 1992 act appear to be subject to affirmative procedure and as it is now more than 20 years since the act was considered by the UK Parliament and the approach to the delegation of powers appears to have altered since then?
As these powers to amend primary legislation through the negative procedure are very wide, the Scottish Government needs to justify its approach. The approach might have been normal in 1992, but we are a new Parliament with new procedures and therefore need better justification than we have received.
The question reflects what is now our principled position that affirmative procedure should be used for amendments to the text of primary legislation.
Absolutely.
Let us see what explanation the Government gives us.
Unlike all the powers that have been previously discussed, section 15 is an integral part of the bill, rather than an amendment to the 1992 or 2005 act. It enables the Scottish ministers to make subordinate legislation requiring any person
“to provide information the person holds about a young person to Skills Development Scotland Co. Limited for the purposes of enabling or assisting”
Skills Development Scotland
“to monitor that young person’s involvement in education or training ... to provide advice or support as regards that young person’s education or training”
or
“to exercise any of its other functions in relation to that young person.”
Does the committee agree to ask the Scottish Government why, given the stated position in the delegated powers memorandum that ministers will wish to impose the duties under this section on
“persons who are providing education and training to young persons”,
it is necessary to frame them more widely to allow it to impose them on any person; and whether, given the breadth of the power and the possibility of its being used at some point in the future in a manner other than that which is apparently intended, it would not be more appropriate to ensure that such an order is subject to greater parliamentary scrutiny by way of the affirmative procedure?
Members indicated agreement.
Section 15(5) is intended to enable the Scottish ministers to modify section 15 to replace references to Skills Development Scotland with references to any other person. It appears that it is also intended to allow them to update section 15 to reflect changes in name, for example, where the person referred to remains the same, but has changed their name. Does the committee agree to ask the Scottish Government why it considers that the power in section 15(5) may be used to effect a change of name, given that a change of name does not involve any change in legal personality and so there is no “other person” to substitute for references to “Skills Development Scotland Co. Limited”; whether the power in section 15(5) is intended to be exercisable more than once and, if so, whether that means that the power is capable of modifying the reference to “Skills Development Scotland Co. Limited” within the power itself; and whether, if that is indeed the intended effect, that is sufficiently clear from the drafting?
Members indicated agreement.
Section 15(7) contains a bespoke ancillary powers provision in addition to the standalone power in section 17 and enables the Scottish ministers, in making an order under section 15(1) or 15(5), to include
“such supplementary, incidental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider appropriate.”
Does the committee agree to ask the Scottish Government why it is considered necessary to seek bespoke ancillary powers provision for the purposes of section 15, when it appears to the committee that adequate provision for ancillary powers has already been made in section 17 and that those powers could also be exercised in an instrument made under section 15?
It seems a bit of an excessive belt-and-braces approach if the power has already been put in.
Let us ask the question and see what reply we get.
Members will be happy to note that that brings us to the end of agenda item 4.