Higher Education and Research Bill (HC Bill 4)

(b) power to require a person on the premises to provide an explanation
of an item or state where an item may be found,

(c) in relation to documents kept by means of a computer, power to
require them to be produced in a form in which they are legible and
5can be taken away, and

(d) power to require a person on the premises to provide such other
assistance as the authorised person may reasonably require.

(2) Those powers also include—

(a) power to check the operation of a computer or electronic storage
10device, and

(b) power to require a person within sub-paragraph (3) to provide the
authorised person with such reasonable assistance as the authorised
person may require for that purpose.

(3) A person is within this sub-paragraph if the person is—

(a) 15a person by whom or on whose behalf the computer or device is or
has been used, or

(b) a person having charge of, or otherwise concerned with the
operation of, the computer or device.

(4) The power conferred by a search warrant to inspect, copy, seize and retain
20items does not include power to inspect, copy, seize or retain excluded
items.

(5) “Excluded items” means items that are—

(a) items subject to legal privilege (as defined in section 10 of the Police
and Criminal Evidence Act 1984);

(b) 25excluded material (as defined in section 11 of that Act);

(c) special procedure material (as defined in section 14 of that Act).

(6) If an item is seized from premises in the exercise of powers conferred by a
search warrant, the authorised person executing the warrant—

(a) must make reasonable efforts to give a notice to a person who
30appears to be the occupier of the premises or otherwise to be in
charge of the premises (an “affected person”), and

(b) if it is not reasonably practicable to do so, must leave a copy of the
notice in a prominent place on the premises.

(7) A notice under sub-paragraph (6) must—

(a) 35state what has been seized and the reason for its seizure, and

(b) specify which registration condition or funding condition the
authorised person believes has been breached.

(8) An authorised person exercising powers under a search warrant must—

(a) make a record of items seized from premises in the exercise of the
40powers, and

(b) if a person who appears to the authorised person to be an affected
person in relation to the premises asks for a copy of that record,
provide a copy of that record to that person within a reasonable time.

(9) An item which is seized in the exercise of powers under a search warrant
45may be retained as long as is necessary in all the circumstances, including for
use as evidence on a prosecution for an offence.

(10) An item may not be retained for use as evidence on a prosecution for an
offence if a photograph or a copy would be sufficient for that purpose.

(11) Nothing in this paragraph confers power to search a person.

Offence

7 (1) 5A person commits an offence if, without reasonable excuse, the person—

(a) intentionally obstructs the exercise of a power conferred by a search
warrant, or

(b) fails to comply with a requirement reasonably imposed in the
exercise of a power conferred by a search warrant.

(2) 10A person guilty of an offence under this paragraph is liable on summary
conviction to a fine not exceeding level 4 on the standard scale.

Self-incrimination

8 (1) An explanation or information provided by a person in response to a
requirement under paragraph 6(1)(b) or (d) or (2)(b) may be used in
15evidence against the person, subject to sub-paragraphs (2) to (4).

(2) In criminal proceedings against the person—

(a) no evidence relating to the explanation or information may be
adduced by or on behalf of the prosecution, and

(b) no question relating to it may be asked by or on behalf of the
20prosecution.

(3) Sub-paragraph (2) does not apply if the proceedings are for—

(a) an offence under paragraph 7 of this Schedule, or

(b) an offence under section 5 of the Perjury Act 1911 (false statements
made otherwise than on oath).

(4) 25Sub-paragraph (2) does not apply if, in the proceedings—

(a) evidence relating to the explanation or information is adduced by or
on behalf of the person who provided it, or

(b) a question relating to it is asked by or on behalf of that person.

Interpretation

9 (1) 30In this Schedule—

• “authorised person” has the meaning given in paragraph 2;

• “document” means anything in which information of any description is
  recorded;

• “item” includes—

  (a)

  35a document;

  (b)

  a computer or electronic storage device;

• “supported higher education provider” has the meaning given in
  section 56(2).

(2) For the purposes of this Schedule, references to items found on premises
40include—

(a) documents stored on computers or electronic storage devices on the
premises, and

(b) documents stored elsewhere which can be accessed by computers on
the premises.

Section 60

SCHEDULE 6 English higher education information: designated body

5Part 1 Designation

Recommendation

1 (1) The OfS may recommend to the Secretary of State that a body is designated
for the purposes of section 59.

(2) 10The OfS may recommend a body only if it considers that the body is suitable
to be designated under this Schedule.

Consultation prior to recommendation

2 (1) Before recommending the designation of a body under this Schedule, the
OfS must consult in accordance with sub-paragraph (3) about whether there
15is a body that is suitable to be designated under this Schedule.

(2) The Secretary of State may direct the OfS to consult in accordance with sub-
paragraph (3) about whether there is a body that is suitable to be designated
under this Schedule.

(3) The OfS consults in accordance with this sub-paragraph if it consults—

(a) 20a number of registered higher education providers that, taken
together, appear to the OfS to comprise a broad range of the different
types of such providers,

(b) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of students on
25higher education courses provided in England by registered higher
education providers,

(c) a number of persons that, taken together, appear to the OfS to
represent, or promote the interests of, a broad range of employers of
graduates, and

(d) 30such other persons as the OfS considers appropriate.

(4) If the OfS consults in accordance with this paragraph, it must—

(a) decide whether to recommend the designation of a body under this
Schedule, and

(b) notify the Secretary of State of its decision.

(5) 35The OfS must publish its decision under sub-paragraph (4).

Designation

3 (1) This paragraph applies where, in accordance with paragraphs 1 and 2, the
OfS recommends the designation of a body (“the recommended body”)
under this Schedule.

(2) The Secretary of State may designate the recommended body only if the
Secretary of State considers that the body is suitable to be designated under
this Schedule.

(3) If the Secretary of State decides to designate the recommended body, the
5Secretary of State must—

(a) notify the body of the designation before the date on which the
designation takes effect (“the effective date”), and

(b) publish notice of the designation before that date.

(4) The notice of the designation must state—

(a) 10the name of the body, and

(b) the effective date.

(5) If the Secretary of State decides not to designate the recommended body, the
Secretary of State must publish the reasons for not doing so.

Bodies suitable to be designated under this Schedule

4 (1) 15A body is suitable to be designated under this Schedule if the body satisfies
conditions A to D.

(2) Condition A is that the body is capable of performing the duty of the
relevant body under section 59(1) in an effective manner.

(3) Condition B is that—

(a) 20the persons who determine the strategic priorities of the body
represent a broad range of registered higher education providers,

(b) the body commands the confidence of registered higher education
providers, and

(c) the body exercises its functions independent of any particular higher
25education provider.

(4) Condition C is that the body consents to being designated under this
Schedule.

(5) Condition D is that the body is a body corporate and is not—

(a) a servant or agent of the Crown, or

(b) 30a body to which the Secretary of State appoints members.

Removal of designation

5 (1) The Secretary of State may by notice remove a designation under this
Schedule.

(2) The notice must—

(a) 35include reasons for the Secretary of State’s decision, and

(b) specify the date on which the designation is removed.

(3) The Secretary of State may only remove the designation if—

(a) the Secretary of State is satisfied that removing the designation
would be appropriate, or

(b) 40the designated body consents to the removal of the designation.

(4) Before removing the designation the Secretary of State must consult—

(a) the OfS,

(b) a number of registered higher education providers that, taken
together, appear to the Secretary of State to comprise a broad range
of the different types of such providers,

(c) a number of persons that, taken together, appear to the Secretary of
5State to represent, or promote the interests of, a broad range of
students on higher education courses provided in England by
registered higher education providers,

(d) a number of persons that, taken together, appear to the Secretary of
State to represent, or promote the interests of, a broad range of
10employers of graduates, and

(e) such other persons as the Secretary of State considers appropriate.

(5) In determining whether a designation under this Schedule should be
removed, the Secretary of State must have regard to any relevant
information that the OfS has provided to the Secretary of State.

(6) 15The Secretary of State must publish a notice under this paragraph.

Part 2 Oversight by the OfS

Application

6 This Part applies if there is a body designated under this Schedule.

20Oversight arrangements

7 The OfS must make arrangements for holding the designated body to
account for the performance of its duty under section 59(1).

Annual report by the designated body

8 (1) As soon as possible after the end of each annual reporting period, the
25designated body must prepare and send to the OfS a report about the
performance of its duty under section 59(1) during the period.

(2) “Annual reporting period”, in relation to a designated body, means—

(a) the period of 12 months beginning with the effective date, and

(b) each successive period of 12 months.

30Triennial report by the OfS

9 (1) As soon as possible after the end of each triennial reporting period, the OfS
must prepare and send to the Secretary of State a triennial report about—

(a) how the designated body has performed its duty under section 59(1)
during the period,

(b) 35whether the designated body should continue to be designated
under Part 1 of this Schedule,

(c) the appropriateness of any fees charged by the designated body
under section 61, and

(d) any other matters that the OfS considers relevant.

(2) 40In preparing a triennial report, the OfS must have regard to any views
provided to the OfS by a person listed in sub-paragraph (3) about—

(a) the matters listed in sub-paragraph (1)(a) to (c), and

(b) what other matters, if any, should be dealt with in the report.

(3) Those persons are—

(a) registered higher education providers,

(b) 5persons representing, or promoting the interests of, students on
higher education courses provided in England by registered higher
education providers,

(c) persons representing, or promoting the interests of, employers of
graduates, and

(d) 10such other persons as the OfS considers appropriate.

(4) “Triennial reporting period”, in relation to a designated body, means—

(a) the period of 3 years beginning with the effective date, and

(b) each successive period of 3 years.

Duty of the OfS to inform the Secretary of State about significant concerns

10 15The OfS must inform the Secretary of State if it has significant concerns
about—

(a) how the designated body is performing its duty under section 59(1),
or

(b) the continued suitability of the designated body to be designated
20under this Schedule.

Part 3 Interpretation

11 (1) In this Schedule—

• “designated body” means a body for the time being designated under
  25this Schedule;

• “the effective date”, in relation to a designated body, has the meaning
  given in paragraph 3;

• “graduate” has the same meaning as in section 59.

(2) References in this Schedule to a body that is suitable to be designated under
30this Schedule are to be read in accordance with paragraph 4.

Section 65

SCHEDULE 7 Costs recovery: procedure, appeals and recovery

Introduction

1 This Schedule applies in relation to the imposition by the OfS of a
35requirement to pay costs on the governing body of a provider under section
65.

Procedure

2 (1) The notice which the OfS gives the governing body under section 65(1) must
specify—

(a) the amount required to be paid, and

(b) 5the period within which payment is required to be made (which
must not be less than 28 days).

(2) The notice must also contain information as to—

(a) how payment may be made,

(b) rights of appeal,

(c) 10the period within which an appeal may be made, and

(d) the consequences of non-payment.

(3) The governing body may require the OfS to provide a detailed breakdown
of the amount specified in the notice.

(4) The requirement to pay the costs is suspended at any time when an appeal
15could be brought in respect of the requirement to pay the costs or such an
appeal is pending.

(5)
But that does not prevent the requirement to pay the costs taking effect if the
governing body notifies the OfS that it does not intend to appeal.

Appeals

3 (1) 20The governing body of a provider may appeal to the First-tier Tribunal
against—

(a) a decision under section 65 to require it to pay costs;

(b) a decision as to the amount of those costs.

(2) An appeal under this paragraph may be made on the grounds—

(a) 25that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable.

(3) On an appeal under this paragraph the Tribunal may—

(a) withdraw the requirement to pay the costs;

(b) 30confirm that requirement;

(c) vary that requirement;

(d) remit the decision whether to confirm the requirement to pay the
costs, or any matter relating to that decision, to the OfS.

Interest and recovery

4 (1) 35This paragraph applies if all or part of an amount of costs that a governing
body is required to pay under section 65 is unpaid by the time when it is
required to be paid.

(2) The unpaid amount of the costs for the time being—

(a) carries interest at the rate for the time being specified in section 17 of
40the Judgments Act 1838, and

(b) does not also carry interest as a judgment debt under that section.

(3) The total amount of interest imposed under sub-paragraph (2) must not
exceed the amount of the costs.

(4) The OfS may recover from the governing body, as a civil debt due to it, the
unpaid amount of the costs and any unpaid interest.

(5) 5Any sums received by the OfS by way of a requirement to pay costs under section
65 or interest under this paragraph must be paid into the Consolidated Fund.

Section 82

SCHEDULE 8 Higher education corporations in England

Education Reform Act 1988

1 10The Education Reform Act 1988 is amended as follows.

2 In section 122 (orders incorporating higher education institutions
maintained by local authorities)—

(a) in the heading, after “local authorities” insert “in Wales”, and

(b) in subsection (1), after “local authority” insert “in Wales”.

3 15Before section 122A insert—

“122ZA Orders for further education corporations in England to become
higher education corporations

(1) The Secretary of State may by order provide for a further education
corporation in England to become a higher education corporation.

(2) 20The first members of the higher education corporation are to be
appointed by the governing body of the further education
corporation.

(3) On such date as may be specified in the order—

(a) the corporation ceases to be a further education corporation
25and becomes a higher education corporation, and

(b) any member of the further education corporation who is not
re-appointed by the governing body as a member of the
higher education corporation ceases to hold office.””

4 In section 122A (orders transferring further education corporations to higher
30education sector)—

(a) in the heading, after “further education corporations” insert “in
Wales”, and

(b) in subsection (1), after “further education corporation” insert “in
Wales”.

5 35In section 123 (provisions supplementary to sections 121 and 122)—

(a) in the heading, for “and 122” substitute “to 122A”,

(b) in subsection (1), after “by virtue of section” insert “122ZA or”, and

(c) in subsections (3) and (4), after “higher education corporation” insert
“in Wales”.

6 Before section 124 insert—

“123A Principal powers of a higher education corporation in England

(1) A higher education corporation in England has power—

(a) to provide higher education;

(b) 5to provide further education;

(c) to provide secondary education suitable to the requirements
of persons who have attained the age of 14 years;

(d) to provide education which is secondary education by virtue
of section 2(2B) of the Education Act 1996 (definition of
10secondary education);

(e) to participate in the provision of secondary education at a
school; and

(f) to carry out research and to publish the results of the research
or any other material arising out of or connected with it in
15such manner as the corporation think fit.

(2) A higher education corporation in England may not provide
education of a kind specified in subsection (1)(c) or (d) unless they
have consulted such local authorities as they consider appropriate.

123B Supplementary powers of a higher education corporation in England

(1) 20A higher education corporation in England has power to do
anything which appears to the corporation to be necessary or
expedient for the purpose of, or in connection with, the exercise of
any of their principal powers.

(2) The corporation’s “principal powers” are the powers conferred by
25section 123A(1).””

7 In section 124 (powers of a higher education corporation)—

(a) in the heading, after “higher education corporation” insert “in
Wales”, and

(b) in subsections (1), (1A) and (2), after “higher education corporation”
30insert “in Wales”.

8 Before section 124A insert—

“124ZA Instrument of government of higher education corporations in
England

(1) For each higher education corporation in England there is to be an
35instrument providing for the constitution of the corporation (to be
known as the instrument of government).

(2) A higher education corporation in England may vary, replace or
revoke the instrument of government.

(3) The corporation must not make changes to the instrument of
40government that (but for section 125A) would result in the
corporation ceasing to be a charity.

124ZB Proceedings etc. of higher education corporations in England

(1) The validity of any proceedings of a higher education corporation in
England, or of a committee of such a corporation, is not affected by—

(a) a vacancy among the members, or

(b) a defect in the appointment or nomination of a member.

(2) Every document purporting to be—

(a) an instrument made or issued by or on behalf of a higher
5education corporation in England, and

(b) duly executed under the seal of the corporation, or signed or
executed by a person authorised by the corporation to act in
that behalf,

is to be received in evidence and treated, without further proof, as
10being so made or issued unless the contrary is shown.

(3) The members for the time being of a higher education corporation in
England are to be known as the board of governors of the institution
conducted by the corporation.””

9 In section 124A (constitution and conduct of higher education
15corporations)—

(a) in the heading, for “corporations” substitute “higher education
corporations in Wales”, and

(b) in subsections (1), (2), (3)(a) (in each place), (4), (6), (7) and (8), after
“higher education corporation” insert “in Wales”.

10 20In section 124B(2)(b) (accounts), at the beginning insert “in the case of a
higher education corporation in Wales,”.

11 In section 124C (initial and transitional arrangements)—

(a) in the heading, at the end insert “: Wales”,

(b) in subsection (1), after “a corporation” insert “in Wales”, and

(c) 25in subsection (3), after “higher education corporation” insert “in
Wales”.

12 Before section 125 insert—

“124E Articles of government: higher education corporations in England

(1) An institution conducted by a higher education corporation in
30England is to be conducted in accordance with articles of
government made by the corporation.

(2) The articles of government may make provision with respect to the
powers of the corporation under section 123B.

(3) A higher education corporation in England may vary, replace or
35revoke the articles of government.

(4) The corporation must not make changes to the articles of
government that (but for section 125A) would result in the
corporation ceasing to be a charity.””

13 In section 125 (articles of government)—

(a) 40in the heading, at the end insert “: higher education corporations in
Wales”,

(b) in subsection (1), after “higher education corporation” insert “in
Wales”, and

(c) in subsection (6)—

(i) 45after “higher education corporations” insert “in Wales”, and