The Colleges of Education (Northern Ireland) Order 2005

The Colleges of Education (Northern Ireland) Order 2005 Made Coming into operation in accordance with Article 1(2) and (3) At the Court at Buckingham Palace, the 19th day of July 2005 Present, The Queen's Most Excellent Majesty in Council Whereas a draft of this Order in Council has been approved by resolution of each House of Parliament: Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:— This Order may be cited as the Colleges of Education (Northern Ireland) Order 2005. This Part, Part II (together with Schedules 1 and 2) and Article 13 come into operation one week after the date on which this Order is made. Part III and Article 14 (together with Schedules 3 and 4) come into operation on the transfer date. The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly. In this Order— “the college” means the college of education heretofore maintained in pursuance of arrangements made under Article 66(1) of the 1986 Order and known as Stranmillis University College: a College of The Queen's University of Belfast; “the Department” means the Department for Employment and Learning; “facilities” includes land, goods and services; “the governing body” means the body established under Article 3; “the transfer date” means 1st October 2005 or such later date as the Department may by order appoint; “the 1986 Order” means the Education and Libraries (Northern Ireland) Order 1986 (NI 3). References in this Order to a person having a “learning difficulty” are to be construed in accordance with Article 2(5) and (6) of the Further Education (Northern Ireland) Order 1997 (NI 15). Any direction, consent or determination given by the Department under this Order shall be in writing. With effect from the transfer date— the college shall cease to be managed in accordance with arrangements under Article 66(1) of the 1986 Order; there shall be established under this Order for the college a body corporate to be known as the governing body of the college; and the college shall be under the management of the governing body. Schedule 1 (which provides for the transfer of certain property, rights, liabilities and staff to the governing body established under this Order and makes other provision consequential on, related to, or for the purpose of facilitating, the transfer effected by paragraph (1)) shall have effect. There shall be— an instrument providing for the constitution of the governing body (to be known as the instrument of government); and an instrument in accordance with which the governing body and the college are to be conducted (to be known as the articles of government). Schedule 2 (which makes general provision concerning the governing body) shall have effect. The instrument of government and articles of government of the college— shall comply with the requirements of Schedule 2; and may make any provision authorised to be made by that Schedule and such other provision as may be necessary or desirable. The initial instrument of government and articles of government of the college shall be made by order of the Department after consultation with such persons as appear to it to be appropriate. The Department may— if the governing body submits a draft of an instrument of government or articles of government to have effect in place of the existing instrument or articles, by order make a new instrument of government or articles of government in terms of the draft or in such terms as it thinks fit; if that body submits draft amendments of the existing instrument of government or articles of government, by order amend the existing instrument or articles in terms of the draft or in such terms as it thinks fit. The Department shall not— make a new instrument of government or articles of government otherwise than in terms of a draft submitted under paragraph (2)(a), or amend an existing instrument of government or articles of government otherwise than in terms of a draft submitted under paragraph (2)(b), unless it has consulted the governing body. The Department may direct the governing body to submit— a draft under paragraph (2)(a) making such provision as is specified in the direction; or a draft under paragraph (2)(b) making such amendments as are so specified. Before giving any direction under paragraph (4) to the governing body the Department shall consult that body. In this Article— references to the initial instrument of government and articles of government of the college are to the instrument and articles which are to have effect as from the transfer date; references to the existing instrument of government or articles of government of the college are references to the instrument of government or articles of government for the time being having effect in relation to the college under this Article. It shall be the duty of the governing body— to secure the efficient and effective management of the college; and to ensure that the college provides, or secures the provision of, suitable and efficient education to students of the college. In carrying out its duty under paragraph (1), the governing body shall have regard to the requirements of persons who have learning difficulties. The governing body shall have the power— to provide or secure the provision of education (and in particular education relevant to the initial or further training of teachers) and to secure the carrying on of research related to such education; to charge fees for or in connection with the provision under sub-paragraph (a) of any form of education or the securing of any research; to provide to students of the college such assistance of a financial or other nature (including waiving or granting remission of fees) as it may consider appropriate; to manage the college, and for that purpose to receive any property, rights and liabilities transferred to it under this Order; to provide, or secure the provision of, facilities of any description appearing to it to be necessary or expedient for the purpose of or in connection with the carrying on of any activities it has power to carry on (including residential accommodation and recreational facilities for students and staff of the college and facilities to meet the needs of students who have learning difficulties and disabled students and staff); to provide meals and refreshments for students and staff of the college; to supply goods and services in connection with the provision of education by it and make charges for such goods and services; to acquire, hold and dispose of land and other property; to enter into contracts, including in particular— contracts for the employment of teachers and other staff for the purpose of or in connection with the carrying on of any activities it has power to carry on; contracts with respect to the carrying on by it of any such activities; and contracts to secure the provision by others of facilities in connection with the carrying on by it of any such activities, including externally financed development agreements as defined in Article 8(4)(c). to form or promote, or to join with any other person in forming or promoting, companies under the Companies Act 2006; to enter into collaborative arrangements with other educational institutions or bodies and community groups on such terms as it thinks fit and to exercise its decision-making in relation to such arrangements through any joint body established for the purposes of the arrangements; to borrow such sums as it thinks fit for the purpose of carrying on any activities it has power to carry on or meeting any liability transferred to it under this Order and, in connection with such borrowing, to grant such security as it thinks fit; to give such guarantee or indemnity in relation to the obligations of a company to which sub-paragraph (j) applies or any other person on such terms and conditions (including the giving of security in respect of its obligations under such guarantee or indemnity) as it thinks fit; to invest any sums not immediately required by it for the purpose of carrying on any activities it has power to carry on or meeting any liability transferred to it under this Order; to raise funds, accept gifts of money, land or other property and apply it to, or hold or administer it in trust for, the purpose of carrying on any activities it has power to carry on; and to do all such other things as are calculated to facilitate or are incidental or conducive to the carrying on of any activities it has power to carry on. For the purposes of paragraph (1)(g), goods and services are supplied in connection with the provision of education by the governing body if— they result from the provision of education or anything done by the governing body under this Order for the purpose of or in connection with the provision of education, they result from the use of, or are provided by making available, the facilities of the governing body or the expertise of persons employed by it in the fields in which they are so employed, or they result from ideas of a person employed by the governing body, or of one of its students, arising out of the provision of education by it. The Department may by order amend the provisions of paragraph (1) by varying, adding to or removing the powers for the time being conferred by that paragraph. Before making any order under paragraph (3), the Department shall consult— the governing body; and any other persons with whom consultation appears to the Department to be appropriate. The exercise by the governing body of any power conferred by this Article is subject to Article 8; and an order under paragraph (3) may make such consequential amendments to Article 8 as appear to the Department to be necessary or expedient. The powers of the governing body under Article 7(1)(b) (charging of fees for education or research) shall not be exercised otherwise than in accordance with— the statutory provisions for the time being regulating the charging of such fees; and any other arrangements approved or determined by the Department. The powers of the governing body under— Article 7(1)(j) (formation of companies); Article 7(1)(k) (collaborative arrangements), Article 7(1)(n) (investment); shall be exercised in accordance with any arrangements approved or determined by the Department. The powers of the governing body under Article 7(1)(f) (provision of meals and refreshments) shall be so exercised as to give effect to arrangements approved or determined by the Department for the remission in whole or in part of charges which would otherwise be made in respect of meals or refreshments provided to students of the college. The governing body shall not, without the prior consent of the Department— borrow money from any source, give any guarantee or indemnity or create any trust or security over or in respect of any of its property; effect any material change in the character of the college; enter into an externally financed development agreement, that is to say an agreement— the purpose or main purpose of which is the provision of facilities in connection with the carrying on of any activities which the governing body has power to carry on; and in connection with which a person proposes to make a loan to, or provide any other form of finance for, any party to the agreement other than the governing body; or acquire any land. The consent of the Department under paragraph (4) may be given subject to such conditions as the Department may determine. Subject to paragraph (9), the governing body shall not dispose of any property to which this paragraph applies without the prior consent of the Department. Property to which paragraph (6) applies is— property transferred to the governing body under this Order; property acquired by the governing body wholly or partly with assets which represent or in any way derive from any part of the proceeds of or any consideration for the disposal of property so transferred; and property acquired, improved or maintained wholly or partly, directly or indirectly, out of funds provided by a Northern Ireland department or from the proceeds of or any consideration for the disposal of any property so acquired, improved or maintained. The consent of the Department under paragraph (6) may be given in respect of a particular disposal of property or of disposals of any class or description and may be given subject to such conditions as the Department may determine. The consent of the Department is not required for the disposal of land which is or forms part of property to which paragraph (6) applies where the disposal is in consequence of the compulsory acquisition of such land by any authority in pursuance of any power of compulsory acquisition under any statutory provision; but the governing body shall inform the Department of any such compulsory acquisition. Where any property to which paragraph (6) applies is disposed of, the governing body shall pay to the Department such portion of the proceeds or value of the consideration for the disposal, after deduction of such expenses as appear to the Department to have been reasonably incurred in the disposal, as the Department may, after consultation with the governing body, determine. It shall be the duty of the governing body to keep proper accounts and proper records in relation to the accounts. The accounts shall be prepared and audited in respect of each financial year in such manner as the Department may, with the approval of the Department of Finance and Personnel, direct. The audited accounts shall— be submitted to the Department on or before such date as the Department may direct; and be published in such manner as the Department may direct. Subject to paragraph (5), the financial year of the governing body shall be the period of 12 months ending on 31st July. The first financial year of the governing body shall be the period beginning with the transfer date and ending on 31st July 2006. The Department may by order amend paragraph (4). The Comptroller and Auditor General for Northern Ireland and the Department shall have the right of access to the books, accounts and records of the governing body. The Department may by order provide for the discontinuance of the college. Before making any order under this Article, the Department shall consult— such other persons as appear to the Department to be appropriate. An order made under this Article shall— contain provision for the winding-up of the governing body; and provide for the dissolution of that body on such date as is determined by or in accordance with the order. An order made under this Article may include provision— for the transfer of property, rights and liabilities of the governing body (including rights and liabilities under contracts of employment) to— the Department; or subject to paragraph (5), such other body or person as may be specified in the order; for the payment by the Department of any expenses incurred in the winding-up of the governing body or the discontinuance of the college; imposing such duties, or conferring such additional powers, on the governing body in relation to the winding-up and discontinuance as the Department may consider appropriate; for the exercise of any of the governing body's functions by any member of that body specified in the order; for the appointment of a person to administer the winding-up and discontinuance, and for such person to have such functions as appear to the Department necessary or expedient for such purposes and are specified in the order; for the amendment or repeal of any statutory provision (including a provision contained in this Order); of such incidental, supplementary, transitional or ancillary nature as appears to the Department to be necessary or expedient for, or in connection with, the discontinuance of the college. An order transferring any property, rights or liabilities to a person or body other than the Department— shall not be made except with the consent of that person or body; and may impose such conditions as to the use or disposal of any property and rights so transferred as may be specified in the order. Where land or other property was held on trust for the purposes of the college, an order under this Article may vest the property in the Department or another body or person beneficially or on such trusts as appear to the Department to be appropriate. A transfer under this paragraph does not give rise to any liability to stamp duty or stamp duty land tax. The making of an order under this Article shall not affect— the power of the Department or the Department of Education to give directions to the governing body under Article 101 of the 1986 Order; or the duty of the governing body to comply with any directions so given. Article 101 of the 1986 Order shall apply in relation to a person appointed under paragraph (4)(e) as it applies in relation to the governing body of the college. In Article 66 of the 1986 Order (training of teachers) in paragraph (2) for “The Department” substitute “ The Department of Education ” and after that paragraph insert— The Department for Employment and Learning may pay grants at such rate or of such amount and subject to such conditions as it may determine in respect of expenditure incurred or to be incurred by any person in connection with the initial or further training of teachers, other than expenditure in respect of which a grant may be paid under paragraph (3). In Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993 (NI 12) (grants for higher education and research) in the definition of “higher education institution” after sub-paragraph (a) insert— a college of education; The 1986 Order is amended as follows. In Article 66 for paragraph (1) substitute— The Department of Education shall make such arrangements as it considers expedient for securing the provision by others of sufficient facilities for the initial and further training of teachers for service in schools and other educational establishments in Northern Ireland. In Article 67 (1) (determination of numbers and qualifications and selection of students for initial or further teacher training) for “The Department” substitute “ The Department of Education ”. In Article 101 (power to issue directions) at the end add— In relation to the managers or trustees of a college of education the functions of the Department under this Article are exercisable by the Department for Employment and Learning (as well as by the Department of Education). The Statutory Rules (Northern Ireland) Order 1979 (NI 12) shall not apply to any order made by the Department under— Article 5 (articles and instrument of government); paragraph 5(1) of Schedule 1 (modification of trust deeds, etc.); or paragraph 4(2) of Schedule 2 (removal of members of governing body). Except as provided by paragraphs (3) and (4), all other orders made by the Department under this Order shall be subject to negative resolution. No order shall be made under— Article 7(3) (alteration of powers of governing body); Article 10 (discontinuance of college); or paragraph 6 of Schedule 1 (further provisions about transfer), unless a draft of the order has been laid before, and approved by resolution of, the Assembly. Paragraph (2) does not apply to an order under Article 2(2) (appointment of later transfer date). Orders made by the Department under this Order may contain such incidental, supplementary and transitional provisions as the Department thinks necessary or expedient. Schedule 3 (which makes minor and consequential amendments) has effect. The statutory provisions specified in Schedule 4 are hereby repealed to the extent specified there. In this Schedule “relevant department” means— the Department; the Department of Education; the Department of Finance and Personnel. Subject to sub-paragraphs (3) and (4), in this Schedule “relevant employee” means a person who, immediately before the transfer date, is employed by a relevant department as a member of staff at the college. A person is not a relevant employee if his contract of employment with a relevant department terminates on the day immediately before the transfer date. A person shall be treated as a relevant employee if— he has, prior to the transfer date, entered into a contract of employment with a relevant department which is to come into effect on or after that date; and he would, if the contract had come into effect before that date, have been a relevant employee. For the purposes of this Schedule anything done before the transfer date by persons appointed by a relevant department in relation to the management of the college shall have effect as if done by that department. Subject to the following provisions of this Schedule, on the transfer date there shall be transferred to the governing body— all land and other property which, immediately before that date, was property of a relevant department held by that department for or in connection with the purposes of the college; all rights and liabilities subsisting immediately before that date which were acquired or incurred by a relevant department for or in connection with those purposes. Sub-paragraph (1) does not apply to— any right or liability under a contract of employment (which is dealt with in paragraph 3); any liability of a relevant department in tort where the cause of action accrued before the transfer date; any liability of a relevant department under a contract of indemnity in respect of acts committed before the transfer date; any property, right or liability excluded from that sub-paragraph by an order under sub-paragraph (3). The Department may, at any time before the transfer date, by order provide that any property, right or liability specified in the order shall be excluded from sub-paragraph (1). Where an order under sub-paragraph (3) provides that any land is excluded from sub-paragraph (1), the order may— create for a relevant department interests in or rights over land transferred under this paragraph; create for the governing body interests in or rights over land excluded by the order, create rights or liabilities between a relevant department and the governing body. Sub-paragraph (1) has effect in relation to property, rights and liabilities— despite any provision (of whatever nature) which would otherwise prevent, penalise or restrict their transfer; and without any instrument or other formality being required. A certificate issued by the Department and stating that any land or other property specified in the certificate, or any right or liability so specified, was or was not transferred under this paragraph to the governing body shall be evidence for all purposes of that fact. A transfer or order under this paragraph does not give rise to any liability to stamp duty or stamp duty land tax. On the transfer date each relevant employee transfers to and becomes a member of the staff of the governing body. The contract of employment of a relevant employee transferred under this paragraph— is not terminated by the transfer; has effect from the transfer date as if originally made between the employee and the governing body. Accordingly— all rights, powers, duties and liabilities of a relevant department under or in connection with the contract of employment are transferred to the governing body on the transfer date; and anything done before that date by or in relation to a relevant department in respect of that contract or the relevant employee is to be treated as from that date as having been done by or in relation to the governing body. But if a relevant employee informs a relevant department before the transfer date that he objects to the transfer of his contract of employment under this paragraph— sub-paragraphs (1) to (3) do not apply in relation to him; and the contract of employment is terminated immediately before the transfer day, but the relevant employee is not to be treated, for any purpose, as having been dismissed by a relevant department. Sub-paragraph (4) does not affect any right of a relevant employee to terminate his contract of employment if (apart from the change of employer) a substantial change is made to his detriment in his working conditions. A transfer does not affect the validity of anything done by or in relation to a relevant department before the transfer takes effect. Anything which— is done by a relevant department for the purpose of, or in connection with any property, rights or liabilities transferred from that department under paragraph 1; and is in effect immediately before the transfer date, is to be treated as from that date as if done by the governing body. Anything (including legal proceedings) which is in the process of being done by or in relation to a relevant department immediately before the transfer date and which relates to any property, rights or liabilities transferred from that department under paragraph 1 may, as from that date, be continued by or in relation to the governing body. In any document which— relates to any property, rights or liabilities transferred from a relevant department under paragraph 1; and any reference to that department is to be read as a reference to the governing body. The Department may by order make such modifications as it thinks fit in any trust deed or other instrument— relating to or regulating the college; or relating to any land or other property held by any person for the purposes of the college. Before making any modifications under sub-paragraph (1) of any trust deed or other instrument, the Department shall, so far as it appears to the Department practicable to do so, consult— the governing body; where any other person is empowered, by whatever means, to modify the trust deed or instrument, that person; and where the instrument to be modified is a trust deed and the trustees are different from the persons mentioned in head (a) or (b), the trustees. The Department may by order make such further provision as appears to the Department to be necessary or expedient in consequence of, or for the purpose of facilitating, or otherwise related to, any transfer under this Schedule. An order under this paragraph may— amend or repeal any statutory provision; or provide for any statutory provision to have effect for any period specified in the order with such modifications as may be so specified. The governing body shall not— be regarded as the servant or agent of the Crown; have any status, immunity or privilege of the Crown, and its property shall not be regarded as property of, or held on behalf of, the Crown. Subject to the provisions of this Order, section 19 of the Interpretation Act (Northern Ireland) 1954 (c. 33) shall apply to the governing body. The instrument of government shall provide for the governing body to consist of not less than 12 nor more than 18 members, of whom— not less than one-half shall be persons appearing to the Department to be, or to have been, engaged or employed in business, industry or any profession; one shall be the principal of the college; two shall be elected by staff employed at the college of whom— one shall be elected by teachers so employed from among such teachers; and one shall be elected by other staff so employed from among such other staff; one shall be elected by students of the college from among such students; not more than two may be persons co-opted by the other members of the governing body. The instrument of government shall provide— for the members of the governing body to be appointed by the Department after consultation with such bodies or persons as appear to the Department to be appropriate; that any election to be held in pursuance of sub-paragraph (1)(c) or (d) shall be conducted in accordance with rules made by the governing body. The instrument of government shall provide for— the appointment, tenure of office and removal from office of a chairman of the governing body; the eligibility of persons for appointment as chairman. The instrument of government may provide for the appointment, tenure of office and removal from office of other officers of the governing body. Subject to sub-paragraph (2), the instrument of government shall provide for— the eligibility of persons for membership of the governing body; the tenure of office, and removal from office, of members of the governing body. If it appears to the Department that the affairs of the governing body have been or are being mismanaged— the Department may by order remove all or any of the members of the governing body (other than the principal of the college); and new members shall be appointed to the governing body in place of those so removed. Where the Department exercises the power conferred by sub-paragraph (2) to remove members of the governing body, it shall give notice in writing of such removal to any members so removed and to the governing body. The articles of government may provide, for the governing body to pay travelling and subsistence allowances to its members and the members of committees of the governing body. Subject to any provision made by the articles of government, the governing body may regulate its own proceedings and those of any committee established by it. The validity of any proceedings of a governing body, or of any committee of the body, shall not be affected by— a vacancy amongst the members; or any defect in the appointment of any member. The articles of government may— make provision about the procedures of the governing body and of the college; make provision for the admission, suspension and expulsion of students; provide for the authentication of the application of the seal of the governing body; authorise the governing body to make rules for the government and conduct of the college including, in particular, provision about the conduct of students and staff. The articles of government— shall provide for the governing body to establish an Audit Committee; and may provide for the governing body to establish other committees. The articles of government shall regulate the constitution and functions of committees of the governing body. The articles of government may provide for the delegation of functions of the governing body to— a committee of the governing body; the principal of the college; or such other person as may be specified by or determined in accordance with the articles. In any legal proceedings a document purporting— to be a document made or issued by the governing body; and to be duly executed under the seal of the body, or to be signed by the chairman of the body or the principal of the college, shall be received in evidence and shall be treated, without further proof, as being so made or issued unless the contrary is shown. In any legal proceedings an extract from the minutes of the proceedings of any meeting of the governing body signed by the chairman of the body or by the principal of the college shall be evidence of the matters stated therein. The articles of government shall make provision for the arrangements concerning the appointment, appraisal, promotion, suspension and dismissal of the principal and other staff of the college. Subject to any provision so made, the governing body may appoint such staff as it thinks fit. The terms and conditions of the staff of the governing body (other than those to whom sub-paragraph (4) applies) shall be such as may be determined by the governing body after consultation with representatives of the staff concerned. The terms and conditions of staff to whom this sub-paragraph applies shall be such as may be determined by the governing body subject to the approval of the Department. Sub-paragraph (4) applies to— the principal of the college; and such other staff as the Department may direct. The following provisions shall cease to have effect— in the Table in Article 24, in paragraph 1A, the words “other than an establishment referred to in Article 82(3)”; and Article 82(3). In Article 2(2)— in the definition of “college of education”, for the words from “being” to the end substitute “ being a college in respect of which grants are paid under Article 66(2), (2A) or (3); ”. in the definition of “the Education Orders” at the end add— the Colleges of Education (Northern Ireland) Order 2005; In Article 18(1), in the Table, for paragraph 5 substitute— College of education The managers In paragraph 55(1)(b) of Schedule 1 omit the words “maintained in pursuance of arrangements under Article 66(1) or”. In Article 27(4) for sub-paragraphs (c) and (d) substitute— in the case of a college of education, the managers; In Article 24, in paragraph 1A of the Table, the words “other than an establishment referred to in Article 82(3)”. (This note is not part of the Order) Part II provides for the transfer of responsibility for the management of Stranmillis University College to a new governing body established by this Order and for the respective functions of the governing body and the Department for Employment and Learning in relation to the college; Part III contains amendments of other legislation in relation to the respective functions of the Department and the Department of Education in relation to colleges of education. Words in art. 7(1)(j) substituted (1.10.2009) by Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 254 (with art. 10)