Joint Committee on Statutory Instruments Thirty-Ninth Report


First Memorandum by the Department for Education and Employment


1.  The Department would like to draw the attention of the Committee to article 4(1) of the Articles of Government, contained in Schedule 2 to the Regulations, authorising the Corporation to delegate powers to a committee or to the Chairman of the Corporation or to the Principal.

2.  The Department and the Committee have corresponded in the past on similar clauses (see for example the correspondence referred to in Appendix V of the Committee's Ninth Report of the Session 1995-96 in relation to the City of Sunderland College (Government) Regulations 1995 (S.I. 1995/3204) and in Appendix V of the Committee's First Report of the Session 1996-97, in relation to the City of Bristol College (Government) Regulations 1996 (S.I. 1996/1765)) and the Committee has questioned the vires of equivalent provisions.

3.  The Department remains of the view that the clause is intra vires, for the reasons previously stated, but would be happy to expand on any point if the Committee would find this helpful.

Second Memorandum by the Department for Education and Employment

(S.I. 1998/1332)

1.  This Memorandum responds to the letter from the Commons Clerk of the Joint Committee on Statutory Instruments dated 17 June 1998. The Committee has asked for a further memorandum on the following point.

    Paragraph 5 of Schedule 4 to the 1992 Act authorises an instrument of government or articles of government of a further education corporation to provide for the delegation of functions of the corporation to officers or committees. Since "express enactment shuts the door to further implication" [Whiteman v Sadler [1910] A.C. 514, 527 per Lord Dunedin], elaborate upon the Department's view (in relation to article 4(1) of Schedule 2 to the Regulations) that the Act impliedly authorises the corporation to delegate its functions to the principal. Further, explain why the Department does not agree with the view that if Parliament had intended to authorise delegation to the principal, it would have expressly said so, as it did in sections 125(2)(b) and 152(5)(b) of the Education Reform Act 1988.

2.  A corporation has a separate legal existence to its members. As a legal body, a corporation cannot make decisions and act itself, but can only act through the minds and actions of individuals (be they members, officers or employees). A corporation can thus only exercise its functions through others. Subject to any provisions to the contrary, at common law a corporation carries out corporate acts by a majority of its members at a corporate meeting. Paragraph 9 of Schedule 4 to the 1992 Act provides for the delegation of functions of the corporation to officers or committees and in the Department's view is concerned with the internal management of the corporation — how it should act and become bound as a corporation. It is only concerned with matters which would otherwise have to be done by members of the corporation acting together and is therefore silent on the issue of delegation to employees or agents. There is thus no contravention of the principle referred to above, stated in Whiteman v Sadler.

3.  A statutory corporation can only act in accordance with its express statutory powers together with those that are necessarily incidental to its powers. In the Department's view a further education corporation would have the power to employ (and give functions to) staff including the principal, for example, even without the express reference in paragraph 11 of Schedule 4. Employing staff would be regarded as a necessary incidental of a corporation. There are many decisions that have to be made in the day to day running of any corporation including a further education college. It would not be practical for all these decisions to be made by the corporation in its corporate assembly or by a committee or officers of the corporation. In the Department's view it is therefore implicit that the corporation can delegate functions to servants and agents, including the principal, through whom it must transact its business. Delegation to the principal is thus necessary for the practical functioning of the corporation. The corporation would remain responsible for the functions carried out by the principal pursuant to any such delegation, and would have to supervise them (and reclaim them if necessary).

4.  Section 125(2)(b) of the 1988 Act provides that the functions of the board of governors and academic board of a higher education corporation may be delegated to committees, the chairman of the corporation or the principal. On the basis of the reasoning set out above it is the Department's view that the boards have an implied power to delegate in this manner even without an express provision for delegation, given that it cannot have been the intention that the board of governors should take every decision in relation to the institution. Section 152(5)(b), drafted in similar terms, was repealed by the 1992 Act (see section 93(2) and Schedule 9). Similar provision was made for institutions maintained by local education authorities by section 85 of the 1992 Act. In the Department's view it is pertinent that there is no express provision for delegation by the governing body in section 85. The Department considers that this is because the implied power to delegate to staff is recognised and not because the 1992 Act was intended to limit the powers of these governing bodies.

22nd June 1998

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998
Prepared 13 July 1998