EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force provisions of the Tertiary Education and Research (Wales) Act 2022 (“the Act”) and makes transitory and transitional provision in connection with the coming into force of certain provisions.

Part 1 (article 1) makes provision in respect of the title and interpretation of this Order.

Part 2 (articles 2 to 8) brings provisions of the Act into force on 5 April 2025. Article 2 brings certain provisions into force in full and article 3 brings others into force for specified purposes. Articles 4 and 5 bring provisions into force in full subject to temporary modifications and articles 6 and 7 bring provisions into force in full subject to transitional provisions. Article 8 brings provisions into force for specified purposes subject to temporary modifications.

Part 3 (articles 9 and 10) brings provisions of the Act into force in full on 1 January 2026 and 31 July 2026. Article 10 brings into force section 25(1) and (4) of the Act on 31 July 2026, to the extent that those provisions are not already in force. Section 25(1) requires the Commission to establish and maintain a register of tertiary education providers in Wales.

Article 2(a) brings into force subsections (2), (3), (5), (6) and (8) to (11) of section 25 of the Act, some of which are already in force for specific purposes. Article 9 brings into force section 26 of the Act, which relates to the registration procedure, on 1 January 2026. Article 2(b) to (f) brings into force sections 27 to 31 of the Act, some of which are already in force for specific purposes.

To register with the Commission an applicant must (amongst other things) be a tertiary education provider in Wales (section 25(4)(b) of the Act). This is defined in section 144(1) of the Act as an institution providing tertiary education, including tertiary education provided on its behalf, whose activities are wholly or mainly carried on in Wales. Section 83 of the Act enables the Welsh Ministers to designate a provider of tertiary education as an institution where they would not, but for the designation, be regarded as an institution for the purposes of the Act. Section 83 is brought into force to the extent it is not already in force by article 2(ee).

Applicants for registration must satisfy initial registration conditions (section 27 of the Act) and a provider’s ongoing registration is subject to the provider satisfying general and any specific ongoing registration conditions (sections 28 and 29 of the Act). The Commission is obliged to keep such conditions under review (section 30(2) of the Act). Section 31 of the Act sets out mandatory ongoing registration conditions to be imposed as either general or specific ongoing registration conditions.

Article 2(g) brings into force section 32 of the Act to the extent it is not already in force. Under section 32, certain registered providers are to be subject to a fee limit condition. These providers must have a fee limit statement approved under section 47 of the Act and article 2(s) brings that section into force to the extent it is not already in force. Article 2(t) brings section 48 of the Act into force which requires that approved fee limit statements are published.

Section 33 of the Act requires that registered providers are subject to ongoing registration conditions on equal opportunity. Section 33 is in force for specified purposes and article 3(a) brings that section into force for additional purposes.

Article 2(h) brings into force section 35 of the Act to the extent it is not already in force. That section requires the Commission to publish guidance about ongoing registration conditions.

Article 2(i) to (l) brings into force sections 36 to 39 of the Act. Sections 36 to 38 provide for the Commission to monitor, provide advice and assistance and carry out reviews in relation to registered providers’ compliance with ongoing registration conditions. Under section 39, the Commission may direct a provider in respect of a failure to comply with such conditions. Section 40 makes provision about directions given under section 39 and is brought into force by article 2(m). Article 2(dd) brings into force section 82 of the Act which provides for the effect and enforcement of directions given under Part 2 of the Act.

Section 41 of the Act requires and enables the Commission to remove a tertiary education provider from a category of the register in certain circumstances. Article 2(n) brings into force section 41 to the extent it is not already in force. Article 2(o) and (p) brings into force sections 42 and 43 of the Act, respectively, which set out the de-registration procedure and make provision in respect of voluntary de-registration and de-registration with consent. Article 2(q) brings into force section 44 of the Act which enables the Commission to register a provider in a different category of the register if certain conditions are met.

Article 2(r) brings into force section 45 of the Act. Section 45 enables a provider to apply for a review by the decision reviewer (see section 79 of the Act) of certain registration-related decisions of the Commission.

Article 8(1) brings into force the Commission’s intervention functions in sections 51 to 53 of the Act for the purposes of enabling the Commission to publish a statement setting out how it proposes to exercise its intervention functions, pursuant to section 81(1) of the Act. Article 8(5)(a) provides for a temporary modification to the Commission’s duty to monitor and promote improvement in the quality of tertiary education in section 51(b) so that the duty does not include tertiary education funded by the Commission pursuant to its powers under section 65 of the Further and Higher Education Act 1992 (“1992 Act”). This modification will apply until section 65 of the 1992 Act is repealed (article 8(3)).

Article 8(5)(b) also provides for a temporary modification to the Commission’s duty in section 51(b) of the Act so that it does not include tertiary education provided by, or on behalf of, a regulated institution that is not a registered provider. This modification will apply until the Higher Education (Wales) Act 2015 (“2015 Act”) is repealed in full (article 8(4)). The terms “regulated institution” and “registered provider” are defined in article 1(2).

Article 8(6) provides for temporary modifications to sections 52(1)(b) and (c) and 53(b) and (c) of the Act. Those modifications exclude tertiary education provided by, or on behalf of, regulated institutions that are not registered providers from the scope of the Commission’s powers to provide advice and assistance in respect of the quality of tertiary education and to carry out reviews relevant to the quality of tertiary education. The modifications are applied because regulated institutions that are not registered providers will continue to be regulated for the purposes of quality under the 2015 Act. The modifications will apply until the 2015 Act is repealed in full (article 8(4)).

Section 54 of the Act confers functions on the Commission relating to the assessment of higher education provided by, or on behalf of, registered providers and provided by others. Section 56 of, and Schedule 3 to, the Act enable the Commission to designate a body to exercise those functions on its behalf.

Article 8(2) brings into force section 54 of the Act for the purposes of enabling the Commission to designate a body under Schedule 3. Article 8(7) makes temporary modifications to section 54(3) so that it has effect as if the Commission’s assessment power does not include higher education provided in Wales by, or on behalf of, a regulated institution that is not a registered provider. Such higher education will continue to be regulated for the purposes of quality under the 2015 Act. The modifications will apply until the 2015 Act is repealed in full (article 8(4)).

Articles 2(u) and 5 bring into force, respectively, section 56 of, and Part 1 of Schedule 3 to, the Act. Article 5(2) to (4) modifies paragraphs 1 to 3 of Schedule 3 so that references to a registered provider (or providers) providing higher education have effect as if they were references to a regulated institution (or institutions). During the period in which these modifications apply, there will be no registered providers.

Part 2 of Schedule 3 to the Act provides for oversight of the designated body by the Commission. Article 3(c) brings paragraph 6 of Schedule 3 into force for the purposes of enabling the Commission to prepare arrangements under that paragraph.

Article 2(v) brings into force section 73 of the Act which requires certain governing bodies to co-operate with the Commission or persons exercising its functions in sections 51, 53 and 54(1) of the Act (including for the purpose of exercising any power under section 74 of the Act). Section 74 provides for persons to be authorised by the Commission for the purposes of entry and inspection in relation to certain of the Commission’s intervention functions and the Commission’s functions under section 54(1) of the Act. Section 74 of the Act is brought into force by article 2(w).

Article 2(x) to (bb) brings into force sections 75 to 79 of the Act. Sections 76 to 78 apply to notices and directions falling within section 75. Under section 76, the Commission must give a warning notice to a provider before giving the provider such a notice or direction. Section 77 prescribes the information to be given with notices or directions falling within section 75 and their effect pending a review. Under section 78, a provider in receipt of such a notice or direction may apply for a review of that notice or direction. Section 79 of the Act requires the Welsh Ministers to appoint a person or a panel of persons to review decisions under sections 45 and 78 and also requires the Welsh Ministers to make regulations in connection with such reviews.

Article 2(cc) brings into force section 81(1), (2), (3)(b) and (4) of the Act relating to the Commission’s statement on intervention functions. Section 81(1) requires the Commission to publish a statement setting out how it proposes to exercise its intervention functions in sections 36 to 39, 41, 51 to 53 and 73(4) of the Act. Before publishing the statement, or a revised statement, the Commission must consult the persons set out in section 81(3). Article 4 brings into force section 81(3)(a) subject to a temporary modification that the Commission must consult each regulated institution (instead of each registered provider). This modification is applied until 31 July 2026 because there will be no registered providers until that time.

Article 2(ff) brings into force section 84 of the Act to the extent it is not already in force. This section provides for the interpretation of Part 2 of the Act.

Section 87(1) of the Act requires the Commission to publish a statement of its policy on how it intends to exercise its funding powers. Section 87(1), (3) and (4) is brought into force by article 2(gg) to the extent it is not already in force. Article 3(b) brings section 87(5) into force, to the extent it is not already in force, except in relation to sections 88, 89 and 105 of the Act.

Article 2(ii) and (jj) brings into force sections 126 and 129 of the Act, respectively, which provide for learner protection plans and require the Commission to publish a learner engagement code. Section 101(3) of the Act requires the governing body of a maintained school with a sixth form in Wales to comply with the requirements of the learner engagement code and is brought into force by article 2(hh) to the extent it is not already in force. Article 2(kk) brings into force paragraph 16(1)(g) and (h) of Schedule 1 to the Act which requires the Commission to include information relating to the effectiveness of learner protection plans and the learner engagement code in its annual report.

Article 2(ll) brings into force paragraphs 8(8), 11 and 29(1) to (4), (6) to (8) and (10) to (13) of Schedule 4 to the Act. Paragraph 29 of Schedule 4 to the Act provides for amendments to be made to the School Standards and Organisation (Wales) Act 2013 (“the 2013 Act”) concerned with school reorganisations. These amendments include removing the Welsh Ministers’ powers to make proposals to restructure local authority maintained sixth form education, instead giving the Commission powers to restructure sixth form education. Paragraphs 8(8) and 11 make amendments that are consequential to the amendments made by paragraph 29.

Article 6(1) brings paragraph 29(5) of Schedule 4 to the Act into force subject to a transitional provision. Paragraph 29(5) amends section 50(1) of the 2013 Act to remove the automatic requirement for approval by the Welsh Ministers of school organisation proposals affecting maintained school sixth form education, instead only requiring the approval of the Welsh Ministers where an objection to the proposals has been sent, in writing, to the proposer during the objection period (28 days beginning on the day the proposals were published) and has not been withdrawn in writing within 28 days following the end of the objection period. The transitional provision set out in article 6(2) provides that the Welsh Ministers’ consent is still required in relation to any proposals published under section 48 of the 2013 Act before 5 April 2025.

Article 7 brings paragraph 29(9) of Schedule 4 to the Act into force, which amends section 80(3) of the 2013 Act, subject to a transitional provision. Section 80 of the 2013 Act enables a governing body of a foundation or voluntary school to discontinue a school by giving the Welsh Ministers and the local authority that maintains the school two years’ notice of its intention to do so. Section 80(3) requires a governing body to consult the Welsh Ministers before giving such notice if discontinuing the school would affect the facilities for full-time sixth form education. The amendment made by paragraph 29(9) of Schedule 4 removes the requirement to consult the Welsh Ministers and instead inserts a requirement to consult the Commission before giving such notice. The transitional provision in article 7(2) provides that the duty to consult with the Welsh Ministers remains in relation to any consultation commenced under section 80(3) of the 2013 Act before 5 April 2025.

Part 4 (articles 11 to 18) makes transitory and transitional provision in connection with the 2015 Act and the registration system to be established under Part 2 of the Act. Tertiary education providers in Wales that register with the Commission and which are regulated institutions will cease to be regulated under the 2015 Act for the purposes of quality of education (Part 3 of the 2015 Act) and financial affairs (Part 4 of the 2015 Act) but will continue to be regulated under the 2015 Act for the purposes of fees and equality of opportunity in connection with access to higher education until the 2015 Act is repealed.

Article 11 makes transitory modifications to section 1(4) and (5) of the 2015 Act, which provides an overview of Parts 3 and 4 of that Act, so that regulated institutions that are registered providers are excluded from the references to institutions that have a fee and access plan.

Articles 12 to 18 make transitional provision in relation to the 2015 Act.

Under article 12, Parts 3 and 4 of the 2015 Act and related provisions in Parts 5 and 6 of that Act do not apply in relation to a regulated institution after it becomes a registered provider.

Article 13 applies where the Commission has given a warning notice under section 42 of the 2015 Act to a regulated institution relating to the quality of education or financial affairs of the institution and the institution becomes a registered provider. The Commission may not, despite the warning notice, give a direction or notice to that institution in relation to its quality of education or financial affairs.

Articles 14 and 15 apply to a direction or a notice, which is not in force, given by the Commission under the 2015 Act to a regulated institution that becomes a registered provider. After the regulated institution becomes a registered provider, the direction or notice is treated as having been, respectively, revoked or withdrawn if it relates to the quality of education or financial affairs of the institution.

Article 16 confirms that nothing in Part 4 of this Order affects the application of certain notices given under section 37 or 39 of the 2015 Act which are in effect in relation to an institution immediately before that institution becomes a registered provider.

Article 17 provides that a direction which is in force and which relates to the quality of education or financial affairs of a regulated institution does not apply after the institution to which the direction was given becomes a registered provider.

Article 18 provides that a statement published by the Commission under section 52 of the 2015 Act does not apply in relation to a regulated institution after that institution becomes a registered provider, in so far as the statement relates to quality of education and financial affairs.