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Further and Higher Education <br />(Scotland) Bill: Stage 1
As members will know, the Further and Higher Education (Scotland) Bill will dissolve the Scottish Further Education Funding Council and the Scottish Higher Education Funding Council and will bring into operation the combined Scottish further and higher education funding council, which will be referred to as the council.
No.
We move now to section 5(7), which relates to fundable further and higher education and concerns the types of programmes and courses for which there could be an alteration to the definition. The legal adviser has highlighted a few issues, the main one being the use of the word "modify", which is rather a wide provision. Do members consider that the affirmative procedure would be more appropriate for this power? I am looking for views.
The Enterprise and Culture Committee has had quite a lot of discussion on the bill. Although the terms of this provision did not give the committee any difficulty, I take the legal adviser's point. It is a wide use of the Henry VIII power and I think that we should say, in the first instance, that we wish it to be subject to the affirmative procedure. The Enterprise and Culture Committee considered a number of provisions for which the negative procedure has been specified and considered that that would be appropriate. In this instance, given the legal advice that we have had this morning on the wide interpretation of "modify" and the possibilities that that gives, we should insist that, at the very least, the affirmative procedure must be used.
I have difficulty with sections 5(1) to 5(6), because they draw together in one place and under one proposed secondary power both the specific qualifications. Section 5(1)(b), for example, refers to
If Murray Tosh also agrees with the points that have been made, I suggest that we write back to the Executive raising those points. Stewart Stevenson's point is additional to what we have in the legal brief, but we can ask for clarification. Is that agreed?
We now move on to section 7(1), on further provision for fundable bodies. This section tries to introduce a provision whereby there can be updating, mergers and so on. The legal brief suggests that we might again want to consider whether the affirmative procedure would be more appropriate than the negative procedure. I am open to members' views.
At the Enterprise and Culture Committee, the Deputy First Minister and Minister for Enterprise and Lifelong Learning suggested that he would be amenable to such a power being subject to the affirmative procedure. That committee felt that the affirmative procedure was appropriate.
Do members agree that we should suggest that?
No issues have been raised on section 7(2)(i). If members have no further points, it has been suggested that we ask the Executive for clarification on the drafting of section 7(4), because there is considerable overlap between that power and the power in section 7(2)(i). Is that agreed?
We now come to the power to issue guidance. Members will remember that when we have discussed guidance before—I am sure that Murray Tosh will remember this—we thought that it was useful, particularly the first time that guidance was issued, for it to be laid before Parliament. In the case of the guidance relating to the bill, that is not being suggested, but it is a little unclear exactly what the nature of the guidance will be, so we might want to ask for clarification on that point. Is that agreed?
We now come to section 8(6), and section 8(7) is obviously linked. I have read the extract from the Official Report of the lead committee's discussion, and it has obviously been concerned about the issue. Christine May is a member of that committee, so she brings a bit of expertise. The question that arises in relation to these subsections is whether it would be possible to bring in top-up fees through the legislation. The Enterprise and Culture Committee sought reassurances from the Executive on that issue.
As you said, there was considerable debate at the Enterprise and Culture Committee and the minister was questioned closely on top-up fees, as were a number of witnesses who raised the issue as part of their evidence. The assurance that the committee had from the minister was that the provisions were largely to ensure that, for those courses for which there were already variable fees, the benefit of that higher support for students could be recovered from the funding body, which might not always be the Scottish body.
If we are dealing with the matter as a delegated power, we would like that power to be stronger and to come under the affirmative procedure.
It helps to have Christine May's impression from the Enterprise and Culture Committee that the minister is receptive to the affirmative procedure being used. As is the case with the sections of the bill that we have already discussed, the important thing is not necessarily the modesty of any specific change that ministers might wish to make subsequently; we must examine the width of the power that ministers are giving themselves and the wording of the proposal. If ministers lump powers together and give themselves sweeping powers, they must be prepared to put even relatively modest orders before the Parliament through the affirmative procedure. They might find that tedious and onerous, but it is a matter of drafting and of ensuring that the Executive does not introduce such wide proposals subsequently.
In view of the sensitivity of the issue, I think that it would be convenient for us to suggest to the minister that he confirm that the provisions do not provide him with the total powers that would be necessary to introduce top-up fees.
Okay. If that is agreed, we will move on to section 8(7), where a bigger concern is highlighted. If section 8(7) is read with section 8(6), it gives wide powers to the minister to specify fee levels. It has been suggested that we might even want to consider the super-affirmative procedure. What is the committee's view on that?
The officials of the Minister for Parliamentary Business suggested that the Executive was open to the principle of the super-affirmative procedure, if we could find appropriate instances in which to use it. Perhaps this is an appropriate instance to refer to the Executive. The policy area is admittedly controversial and difficult, so the Executive might like to pilot its use of the super-affirmative procedure here.
It has also been suggested that we get clarification on the effect of section 8(7) on setting fees. The legal advisers feel that it is not entirely clear. We will ask about that and we will pursue the point about the super-affirmative procedure.
Section 24(1) deals with requirements as to the new council's functions. There are no particular concerns about that section. Is that agreed?
No issues of substance have been identified on section 26(1)(b).
We turn now to paragraph 6(1)(c) of schedule 3. It amends section 44 of the Further and Higher Education (Scotland) Act 1992, which is on the designation of institutions. No issues have been identified.
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