Joint Committee on Statutory Instruments Sixth Report



APPENDIX V

Memorandum by the Scottish Office

SCOTTISH FURTHER EDUCATION FUNDING COUNCIL (ESTABLISHMENT) (SCOTLAND) ORDER 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 Instrument.

    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 1992 Act") give the Secretary of State power to include in the Order made under section 7 of the 1992 Act ("the Order") 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 7.

January 1999


 
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