Joint Committee on Statutory Instruments Forty-Eighth Report


Memorandum by the Scottish Office


This Memorandum is submitted to the Joint Committee on Statutory Instruments in response to their letter of 4 November 1998 in which they asked for an explanation of the following point arising in connection with the above Statutory Instrument.

    Article 4(2), investing property in the transferee University, displaces any contrary "obligation" and any "condition" contained in an obligation. Explain why this provision is necessary given section 47(3) which states that, in a case where property which is subject to a trust or condition is "transferred by virtue of an Order under subsection (1)", the property remains subject to the trust or condition "after the transfer".

The Department consider that the intention of section 47 is clearly that the Secretary of State should be able to make an effective transfer of property, notwithstanding restrictions on transfer in the title deeds or elsewhere. Subsection (3) does tend to support this view, although it should be noted that trusts or conditions referred to there could deal with many matters, and are not confined to trusts or conditions restricting transfer of property.

On this view Article 4(1) of the Order effectively transfers the property, and Article 4(2) is not strictly necessary, but it does serve the purpose of making the intention absolutely clear, and discouraging anyone from seeking to challenge the transfer on this ground.

Article 4(2) is based on the precedent of section 16(6) of the Further and Higher Education (Scotland) Act 1992, in relation to the general transfer of property from education authorities to further education colleges under that section. It was thought apt to follow this precedent in other transfers under the Act. The Department note, however, that provisions for transfer of property in other statutes generally do not contain such provision, and are no less effective for that.

The Department accordingly accept that Article 4(2) is not absolutely necessary. Its inclusion is, however, consistent not only with section 16(6) but also with previous orders made under section 47, and arguably clarifies for conveyancers that the statutory transfer prevails. Its inclusion in this instrument thus seems defensible.

9th November 1998

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