Memorandum by the Scottish
1998 (S.I. 1998/2887)
This Memorandum is submitted to the
Joint Committee on Statutory Instruments in response to their
letter of 13 January 1999 in which they asked for an explanation
of the following point arising in connection with the above Statutory
Explain what authorises
the power given by Article 15 to the Scottish Further Education
Funding Council to delegate its functions (contrast the specific
provision to that effect in paragraph 9 of Schedule 7 to the 1992
Act in the case of the Scottish Higher Education Funding Council).
The provisions of paragraph 10 of Schedule
1 to the Further and Higher Education (Scotland) Act 1992 ("the
give the Secretary of State power to include in the Order made
under section 7 of the 1992 Act ("the
such additional provisions relating to the membership, staff and
proceedings of the Funding Council (including any committee of
them) as the Secretary of State may consider necessary or expedient.
To enable the Council to function effectively, it is considered
that the reference to "proceedings"
requires to be reasonably widely interpreted to cover not only
conduct of meetings but also matters of organisation and conduct
of business such as the establishment of committees and the delegation
of functions within the organisation to committees or office-bearers.
(It is notable that paragraph 10 assumes the existence of committees
but does not expressly provide for the establishment or conferring
of functions on them.)
It is normal for organisations of this
nature to be given power to delegate functions to committees or
to suitable office-bearers and it would be very difficult for
them to conduct their business effectively otherwise. There is
no reason to think that Parliament intended to deprive the Funding
Council of this facility.
Delegation of functions outside the
organisation is a different matter and plainly could not be authorised.
The Committee have commented that paragraph
9 of Schedule 7 to the Act makes specific provision for this matter
in relation to the Scottish Higher Education Funding Council.
The Department submits that too much should not be made of this,
since in Schedule 7 everything is spelt out in the primary legislation,
while in Schedule 1 much detail is left to be determined by order.
Also, in interpreting enabling words in Schedule 1, it cannot
be assumed that what they are intended to cover is necessarily
limited to the material appearing under similar headings in Schedule