Joint Committee on Statutory Instruments Sixteenth Report


APPENDIX 3

Memorandum from the Department for Education and Skills

DERBY COLLEGE (GOVERNMENT) REGULATIONS 2001 (S.I. 2001/3810)

1. The Committee has requested 25 copies of these Regulations in connection with a request for a memorandum. These copies are enclosed.

2. The Committee will see that at Clause 1 of the Instrument of Government a mistake has been corrected. The Department would like to explain the reason for this correction.

3. After the Regulations were laid before Parliament it was noticed that there was a clerical error in Schedule 1 to the Regulations. In Clause 1(a) of the Instrument of Government instead of saying that "the Corporation means the education corporation known as Derby College" it stated that "the Corporation means the education corporation known as Sussex Downs College." Regulation 2 of the Regulations provides that the Instrument of Government set out in Schedule 1 is for the Derby College and not for the Sussex Downs College so the clear intention was that "the Corporation" in the instrument of government should be Derby College. The reference to the Sussex Downs College was obviously a clerical error and therefore it was decided to correct the Regulations before they were sent for printing to reflect the true intention of the regulations. The correction does not in the Department's view change the substance or legal effect of the regulations.

21 December 2001

Further Memorandum from the Department for Education and Skills

1. The Committee requested the submission of a memorandum to the following points:

"Clause 8(8) of the Instrument of Government (as set out in Schedule 1) provides that a person is disqualified from holding or continuing to hold office, as a member if, within 5 years before his appointment would otherwise have taken effect, or since his appointment, he has been convicted in the United Kingdom, the Channel Islands and the Isle of Man of any offence and has had passed on him a sentence of imprisonment for a period of not less than 3 months without the option of a fine. Article 5(10) of the Articles of Government (as set out in Schedule 2) provides that the Principle may delegate any of his functions other than the management of budget and resources to the holder of any other senior post.

In relation to two earlier instruments (S.I. 2000/2799 and 3213), the Committee, in its 10th Report (Session 2001-02), reported (a) a provision corresponding to clause 8(8) on the ground that it makes an unexpectedly limited exercise of the enabling power, and (b) a provision corresponding to article 5(10) for doubtful vires. Does the Department wish to add anything to its earlier submissions as appended to that Report? In relation to the first provision, the Department's attention is drawn to the fact that, in various education action zone Orders, the disqualification extends to a conviction in the United Kingdom or elsewhere: see for example, article 8 of S.I. 1998/3054 to 3066."

Clause 8(8) of the Instruments of Government

2. In relation to two earlier instruments the Sussex Downs College (Government) Regulations 2001 and the Brooke House Sixth Form College (Government) Regulations 2001, the Committee in its 10th Report (Session 2001-02), reported a provision corresponding to clause 8(8) on the ground that it makes unexpectedly limited exercise of the enabling power. Clause 8(8) disqualifies a person from holding, or continuing to hold office as a member, if within 5 years before his appointment would otherwise have taken effect, or since his appointment, he has been convicted in the United Kingdom, the Channel Islands or the Isle of Man of any offence and has been passed on him a sentence of imprisonment (whether suspended or not) for a period of not less than 3 months without option of a fine. The Department's attention was drawn to the fact that, in various education action zone Orders the disqualification extends to a conviction in the United Kingdom or elsewhere.

3. We would like to thank the Committee for drawing the Department's attention to the education action zone Orders mentioned and agree that the provisions contained in those Orders provide a useful precedent as to how the enabling power can be used. The Department will adopt a provision on these lines in future instruments of government of further education corporations.

Article 5(10) of the Articles of Government

4. In its 10th Report (Session 2001-02) commenting on the Sussex Downs College (Government) Regulations 2001 and the Brooke House Sixth Form College (Government) Regulations 2001 the Committee took the view that "it is not persuaded that that section [section 20(2)(b) of the Further and Higher Education Act 1992] authorises provision enabling the Principal to confer largely unlimited powers on senior officers or to divest himself of his responsibility for the proper discharge of almost all of his functions in article 3(2), which the Committee notes are the kind of functions for which a chief executive would expect to take personal responsibility, or to sub delegate any functions delegated to him by the Corporation."

5. The Department agrees that it would be inappropriate for the Principal to delegate every single one of his functions (other than those mentioned in article 5(10)) but it is not appropriate for the Articles of Government to say which functions cannot be delegated or to seek to quantify the number of functions which cannot be delegated. Article 5(1)(c) provides that the Corporation may delegate powers to the Principal. If the Principal delegated all his functions other than those in Article 5(10) the Department would expect the Corporation to take action to stop this. If the Corporation is not happy with the way in which the Principal has exercised any power that has been delegated to him it can request that he discharges that power himself or ultimately it can revoke its delegation.

6. In addition to the power to revoke the powers delegated to the Principal the Corporation may also decide to take disciplinary action. The Corporation is responsible for disciplinary issues concerning the holders of senior posts. If the Corporation thinks that the delegation of every single one of his powers is mismanagement it may decide to take disciplinary action.

7. The Corporation is also responsible for ensuring the proper conduct of the college and if it does not take any action to stop the Principal from delegating every one of his functions the Department may decide that the Corporation is mismanaging the institution's affairs. Section 57 of the Further and Higher education provides that if the Secretary of State is satisfied that an institution's affairs have been or are being mismanaged by the Corporation she may: remove all or any of the members of the Corporation; appoint new members of the Corporation; or give such directions as she thinks expedient as to the exercise of their powers and the performance of their duties. The Department believes that the Corporation's power to revoke any powers that it has delegated to the Principal and its disciplinary powers are sufficient safeguards to prevent the Principal from delegating all of his functions other than those in article 5(10). If the Corporation does not take appropriate action the Secretary of State may decide to intervene.

7 January 2002


 
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