Northern Ireland Assembly
Monday 26 March 2001 (continued)
I too welcome the additional support for students attending colleges of further education. Can the Minister indicate how much money has been set aside to cover the cost of the bursaries? Also, has a quality impact assessment of his proposals been carried out? If so, when can we see it?
Approximately £3·8 million is being made available with respect to the access bursaries. On the second point, an equality impact assessment has been carried out. I drew that to the attention of the Committee when I met it this morning. The more positive impacts of the proposals should be self-evident in terms of those who are below the different thresholds who will now gain access to fee remission and to bursaries, when the bursaries are introduced. Those in need of childcare and those in further and higher education will be able to benefit from the extension of Individual Learning Accounts to higher education courses.
There are some other possible impacts that must be addressed. These issues will receive the attention of the Equality Commission and all those who will be involved in the consultation process - those listed in my Department's equality scheme, with whom we are obliged to enter into consultation. The proposals involving a means test may impact more positively on Catholics than on Protestants, given the likely religious balance in the income scales targeted. I am informed that some Muslims may have difficulty with the retention of a loans-based system of support in higher education because of inhibitions or prohibitions in some of their sects on availing of loans.
On a gender basis, and despite the fact that more women than men study full-time in higher education, the targeting of additional higher education provision on skills shortage may impact more positively on men. The areas of science, engineering and technology, where men predominate, are likely to attract many of the additional places, but we may well ask ourselves what we are doing to attract greater participation by women in such courses.
The introduction of a childcare grant may have a more positive impact on women, who are traditionally the primary carers. With respect to age, the childcare grant as currently proposed may have a negative impact on some older students since, due to current regulations, it will not be available to those aged over 55.
The positive and negative impacts will have to be considered. There may well be others which will be identified by those with whom we consult in the process.
Much of what the Minister has said today has been based on what the parents of students earn. Does the Minister not recognise that university students are not dependent on their parents? Has he given any consideration to situations in which, for example, parents may be divorced and the young person may live with either the mother or the father? That parent may not be the main earner and may not have a particularly good relationship with the other parent, who may not want to pay for his or her child's time at university. In such an instance, a young person can be discriminated against.
Has the Minister also given any consideration to parents in the wealthier band who may have two, or even three, children at university at one time?
Furthermore, the repayment of student loans has been set at £10,000, which is a fairly low point if housing costs, in particular, are taken into consideration. Will that be reviewed on a yearly basis with a view to raising that band? Students would not then have to make any repayments until a higher level of earnings was reached.
I am very sympathetic to students who find that parental support is not available on the scale which might appear possible. Under existing regulations, there is provision for students to be assessed completely on their own means. Account can be taken of circumstances if it can be demonstrated - with respect to whatever means from whatever source - that students are not receiving the full degree of support to which it might initially have appeared that they were entitled. It is not a case of students' finding themselves disregarded if they are in such circumstances as the Member has indicated.
With respect to the repayment of student loans, I have in the course of my remarks indicated that, for reasons associated with procedures in the Inland Revenue, we have to follow a UK-wide basis for the repayment of loans. I certainly believe that the threshold at which loan repayment becomes obligatory should be kept - and it is being kept - under review.
I think there were three questions. With your permission, Mr Deputy Speaker, perhaps the Member would repeat the second of those.
It concerned people in the higher tax band who have more than one child at university.
Residual income is what remains when certain commitments have been taken into account. That will vary, depending on the particular circumstances of the families involved. Families with greater levels of dependency than others will have lower levels of residual income on which their commitments to their student children will be determined.
Go raibh maith agat, a LeasCheann Comhairle. I welcome the Minister's announcement as a first step towards implementing the many recommendations of the Higher and Further Education, Training and Employment Committee, and accepting students' demands that maintenance support is required to promote third-level education.
Given that the Minister is retaining up-front fees, does he share the view that there is still the major problem of the perceived deterrent effect of up-front fees among families and communities that are under-represented in participation in higher education in the North? What plans does the Minister have for challenging this perception?
Does the Minister share the Committee's view that the abolition of up-front fees and their replacement with an income-contingent graduate endowment with a payback threshold of £25,000, together with the restoration of maintenance, should be the ultimate policy objective for targeting social need?
The package of proposals is a challenge to the perception identified by the Member. In terms of the access bursaries, the package is very clearly targeted at meeting the perception that debt aversion deters. People who might enter third level education are being deterred because they perceive that they will have a burden of debt. The access bursaries go a significant way towards removing that perception. People will now know that, depending on the level of parental income, they will receive degrees of support not previously available. These will be the primary means of addressing that perception.
In theory, there are attractions for a graduate endowment fund. The Committee proposed that such a fund would kick in at an income of £25,000. However, given that the average income in Northern Ireland is approximately £18,500, it would take a long time before there would be any significant return to the public purse. During that lengthy period there would be such pressure for additional finance on the bids from my Department that I doubt it could be met. The graduate endowment fund meets the widely supported proposition that those who benefit most from education should repay to the system for the benefit of future generations. It is a proposal that has received a lot of attention, not just in Scotland, where it originated, but also in our own considerations and in the recent deliberations of UK universities in the form of the Committee of Vice-Chancellors. That proposal has a number of significant problems associated with it.
On the issue of the abolition of tuition fees, when considering the abolition of any charge the key question that we need to ask ourselves, whether in education or elsewhere, is who will benefit most from that abolition. At present, approximately 50% of our students do not make a contribution to their tuition fees, and if we increase that figure to 100% by abolishing the contribution to tuition fees completely we are only going to benefit those in the higher income brackets. That does not seem to me to meet the challenge of targeting social need, which is a fundamental principle on which all our social policies have to be based. I ask the Member to consider the immediate effect of abolition. It would be to benefit those who are better off, at the expense of making more resources available to those who are least well off, which is, in fact, what I have been trying to do with this package.
Mrs E Bell:
First of all, I welcome the Minister's package. It is comprehensive and far-reaching, and I hope that it will improve access to third-level education. Unfortunately, I got the paper less than an hour ago. It is very specific, and I will need to look at it in more detail before returning to the Minister.
I welcome a number of things: the abolition of tuition fees for full-time students on vocational courses, the increase in access support grants and bursaries, and the childcare grant. However, although the Minister has been very definite in his remarks about the abolition of fees, I ask him not to think that it will be impossible in the future. Perhaps it is difficult in the short term, but I hope that it will not be impossible in the future. For instance, if we get tax-varying powers here as they have in Scotland, we may be able to look at it again.
The Alliance Party has called for the abolition of tuition fees. However, there is a problem from the equality point of view. The Minister is abolishing tuition fees for students on a broad range of vocational courses. However, students on university courses and other vocational courses do have to pay tuition fees. Obviously, the Minister will be looking at this within the Department's equality scheme.
The Cubie Report suggested that the student loan system should be replaced with a graduate endowment fund. The Minister has also commented on that. However, the Scottish Executive said that that could only be accomplished on a UK-wide basis. In his further deliberations, will the Minister be working with the Scottish Executive to bring about this change in Westminster so that true equity can be achieved?
I welcome the growing number of further education places. The Minister says that he has not yet decided how those places will allocated, but certainly the majority will be targeted at disciplines regarded as important for economic development. As well as looking at the disciplines, the Minister should look at places such as Magee and Coleraine, so that all further education courses and campuses will be adequately served. The Minister will be looking at the full resourcing of all the campuses so that we have not just the students but also the buildings and libraries and so on that go along with them.
Was there a question?
I thank the Member for the -
Mrs E Bell:
I was asking questions.
Mr Deputy Speaker:
Please sit down.
Dr Farren, please answer the questions rather than deal with the general matters in Mrs Bell's statement.
Mrs E Bell:
With respect, Mr Deputy Speaker, that was included in my question, as the Minister knows.
There were several questions in the Member's comments.
I am not opposed in principle to the abolition of tuition fees. Indeed, in my statement I announced that I am proposing the abolition of tuition fees for a broad range of vocational courses in the further education sector at level 3 and below. The question as to whether we should plan for their total abolition right across the whole of the further and higher education sector is one that, in principle, we can say that we will keep under review.
However, we have to bear in mind that any steps taken towards significantly increasing the numbers to whom tuition fees do not apply, or abolishing fees completely, would raise significant affordability questions and questions related to targeting social need.
We certainly want an increase in the number of places in our universities and colleges. Over the 1999 base, we have announced an increase of 4,400 places, to which I am now adding an additional 1,000. We need to address where these additional places should be made available and to which courses they should apply.
I am afraid that I do not welcome many of these proposals - some of them are a step backwards, rather than forwards. I do welcome the proposal relating to childcare, and I am pleased that the Minister took up my recommendation that provision be extended to all those with dependent children, and not just to those over 21. I made this recommendation to the Committee on the grounds that restricted provision might not be in line with the equality impact statements of these proposals.
I also noted this morning that the SDLP states on its web site that it is committed to the abolition of student loans and to the introduction of a proper grant system. I assume that that remains the case. Unfortunately, however, the only evidence of this commitment is the abolition of part of the student loan in a new proposal to step backwards by taking up to £250 from those who are not deemed to need the loan. Therefore, I remain concerned that in the future people will have debts and not degrees. A Select Committee of the House of Commons has already pointed to the fact that there is a serious problem with regard to retaining students, and that one - but just one - of the factors which affect this issue is debt.
Does the Minister not consider that it is extremely difficult to ask parents and education and library boards to administer a system of access to bursaries which range between £500, £1000 and £1,500 and are based on a means test? According to that Select Committee, in any year a student will have debts of between £3,000 and up to £7,000 by the time he leaves. In the light of this, would it not have been better to consider a decent package of access to bursaries which, I assume, could be considered, to some extent, as replacing student grants. We know that the problem will not be resolved by throwing a tiny bit of money into this sector, and we may continue to have serious problems with retention, never mind initial recruitment to universities.
Did the Minister succeed in raising in the British-Irish Council the issue of parity throughout the devolved Administrations? I share Members' concerns that systems in Scotland, England and Wales, Northern Ireland and the Republic of Ireland are now different from one another. That is a step backwards, particularly when one is trying to work out in simple terms what students are entitled to if they go to different universities. Does the Minister also consider that his proposals to give financial assistance to some further education courses, and not to others, might be discriminatory?
I welcome the extra 1,000 places that have been created. However, does the Minister accept that none of his proposals address the skills shortage crises affecting the Health Service - particularly in such fields as speech therapy and nursing - that have been debated in the Assembly?
Finally, has the Minister set in place any monitoring to assure us that mature students, those with disabilities, and young entrants from disadvantaged backgrounds will be attracted by these proposals? I do not believe that this is the case. Why did the Minister not take up our proposal to have a joint funding council for the further education and higher education sectors, given that many of his proposals now relate to both sectors?
Mr Deputy Speaker, at some stage a ruling on the number of questions that may be asked at any one time may be necessary. It is very difficult for a Minister to keep track of seven or eight questions, as I have tried to do with Ms McWilliams and others.
I will do my best, and if I miss any of the questions I will be only too willing to have the Member remind me of them.
Approximately 17,000 students will gain access bursaries - 14,000 in higher education and 3,000 in further education - and these numbers could well increase over the next few years. All will find these proposals a very helpful source of support to them in the course of their studies. I do not believe that they will be as disappointed as the Member suggests. In fact, I believe that the introduction of access bursaries will be welcomed in both the higher and further education sectors. It is not the case that we have missed an opportunity to target our scarce resources at those in greatest need, and I have not heard any proposals which would, on the grounds of affordability, indicate how we might better target the resources available to us towards those groups.
As to the level of take-up, quite obviously that remains to be seen; therefore I cannot give a 100% assurance to Ms McWilliams or indeed to any other Member that the take-up will be of level X or level Y. We are addressing the perception of aversion to entering higher education that is claimed to exist among many in the lower income brackets due to a lack of adequate support. I trust that by moving as we have done we will at least dent that perception, and that as more resources become available they too will be targeted. I certainly believe very strongly in targeting social need. As I have already indicated, I am not in principle opposed to the complete abolition of tuition fees, and the replacement of a loan system by a generous grant system for all remains an objective that we can certainly work towards. I would indeed welcome that, should the opportunity arise.
However, the Member, who herself holds a wide range of concerns for many social issues, must tell me and other Ministers how resources are to be made available for us to move more rapidly towards that objective than seems possible at present. At whose expense are we to move? At whose expense in the Health Service, the social services, or the rest of the educational services are we to proceed in order to get those resources? I do not hear that solution from Ms McWilliams or indeed from any other Members.
On the issue of take-up, most academic research studies show that when you increase means-testing and complexity in the system, it is the middle classes rather than the lower socio-economic groups who benefit. Does the Minister agree with that?
I must also point out that the Committee did in fact make proposals to the Minister which did not suggest that all of the money should come out of the block fund. Indeed, we recommended that students repay their access grant money through an endowment fund after graduation.
I have dealt with the issue of a graduate endowment fund and the difficulties associated with the proposals of the departmental Committee, particularly the huge gap with respect to public finance which would exist if we were to adopt its proposal to set a threshold at £25,000.
The Member claims that it is the middle-income groups who benefit most from means-tested benefits. On the contrary, these benefits are deliberately targeted at those in the lower income brackets.
For the purposes of access bursaries, they are below the residual income of £15,000. It will be very difficult for people with incomes much greater than that to demonstrate that they have residual incomes as low as £15,000 in order to avail of such bursaries. In a few years' time, whether I am Minister or not, we could be open to accusations that if we do not significantly increase participation, we will not have met our key objectives.
How else can we ensure that those who need most receive most? It is likely that lower-income students will benefit from the remission of tuition fees because they will fall within the 50% who do not have to pay those fees. Lower-income students will benefit from the remission of tuition fees and also from maintenance support through access bursaries. However, this would not be the case if tuition fees were totally abolished.
As I indicated some time ago, my Department is actively considering changes to the current further and higher education advisory councils and also to training procedures.
While sharing some Members' concerns about whether these proposals go far enough, I welcome the fact that additional resources have been made available and that we have been given more details.
Potential students and parents will be looking for clarity and certainty in these proposals to see how they will affect them individually. The Minister has indicated that in the further education sector, tuition fees will be abolished for full-time students over 19 years of age on a broad range of vocational courses at levels 2 and 3. First, can the Minister confirm that this will take effect from the start of the next academic year? Secondly, among a plethora of points raised by Ms McWilliams, there was a question that was not answered. If fees are to be abolished on a broad range of vocational courses, it follows that fees will still be payable on some courses. Is that not discriminatory, not only within the further education sector but also between the further education sector and the higher education sector? Finally, potential students will want to know for which courses fees have been abolished. When will the Minister's Department be in a position to publish a list of such courses?
My Department is working towards a broad interpretation of which vocational courses will qualify, but it is not currently in a position to publish a list. I hope that we will be able to introduce this part of the package from September 2001, when most further education proposals will be introduced. Legislation is necessary for the higher education proposals, and we will not be in a position to introduce those bursaries until September 2002.
A major information campaign will be put in place to help potential students to work out their entitlements and to plan the management of their finances. This will involve the Education Guidance Service for Adults, student representatives and the education and library boards. They will be as well prepared as we can possibly assist them to be at a point prior to entering their courses.
I take the point about the potential for what the Member described as "discrimination" between courses. That is why we are looking very carefully at how we should approach this. We do not want to run into difficulties in this regard.
On the issue of any distinction between further education and higher education because of the abolition of fees, I do not anticipate that an equality assessment will cause difficulties. If it does, we will have to look again at a major part of the scheme. However, the soundings that we have taken indicate that we should not have difficulties. The process of formal consultation is only beginning now.
Mr Deputy Speaker:
Five Members have notified me that they want to ask questions. We have 14 minutes, so I ask Members and the Minister to limit their remarks. In particular, I remind the Assembly that it is nugatory to repeat a question that somebody else has asked.
I welcome the Minister's package, particularly its focus on targeting social need. How much will the extra 1,000 higher education places cost, and how many of these new places will there be in each of the next three years? I invite the Minister to make sure that the extra places are spread across Northern Ireland and ask that County Tyrone - where there is actually no full-time higher education - be considered as a location for some of these places. Finally, can the Minister confirm that the 1,000 places are in addition to the 4,400 that were included in the Programme for Government?
The cost of the additional higher education places is estimated at around £7·5 million in a full year. On the question of whether they are included in the 4,400, I trust that I have made it clear in my remarks that they are additional to those which are already being put in place. Where they will be assigned is a matter that is still under consideration. Members will know that a number of initiatives are being undertaken to expand the provision of higher education courses, both full-time and part-time, and the colleges of further education are deeply involved in this expansion with us. The introduction next September of foundation degrees, which will be on an experimental basis for the next two years, will see 100 full-time equivalent places available this year and a further 100 the following year. These courses, which will be delivered exclusively within the further education college sector, will add to the places, and I understand that the college in the area referred to by the Member is one of the colleges in which foundation degree places will be made available.
Obviously, that is an issue that needs to be kept under close review. The places need to be made available in order to meet particular demands. Of course, some of those demands are skill-specific, and some of them are also specific to the needs of different university campuses. We need to bear a number of factors in mind before we will be able to say precisely where all of those additional places will be allocated.
Mr J Kelly:
Go raibh agat, a LeasCheann Comhairle. Along with others, I welcome the fact that the Minister has accepted our demand that maintenance support is required to promote participation in third-level education for disadvantaged sections of our community.
We also welcome plans to introduce childcare grants, provide additional student places and simplify administrative arrangements for student support. However, we are disappointed that, despite evidence from many informed sources, including the recent report from the Select Committee on Education at Westminster, the Government will continue to charge many students and their families tuition fees in respect of higher education.
As regards education, no one is suggesting that the rich should be made richer and the poor poorer. However, given that the Minister's party, the Committee and, indeed, the Assembly are committed to the abolition of tuition fees, can the Minister instigate a defined programme over the next few years that will lead to the abolition of tuition fees for our students?
I am not at all averse to considering proposals for the further extension of the new arrangements that I have announced. Nor, indeed, am I averse to considering the objective that the Member and many others have referred to.
I have a particular responsibility, as Minister, to negotiate proposals with my Executive Colleagues that can be broadly acceptable to them, and that can be broadly endorsed by the Assembly itself.
I understand that targeting social need is one of the fundamental bases as regards social policy that emanates from the Good Friday Agreement. Indeed, even without that agreement, I am a strong proponent of looking at social policies in the context of addressing the needs of those who are less well endowed with resources than others. That is a priority.
When we have addressed that priority, we should then move to address the needs of others. However, in targeting social need we need to be very clear as to what we are asking for, and, indeed, how affordable that is at any one time.
All political parties have aims and objectives. They all recognise that most aims and objectives take time to be achieved. Indeed, some may never be fully achieved. In my area of responsibility, social justice is a key principle that I will argue for, and work to ensure that all my proposals are based on, as a first and essential criterion.
I congratulate the Minister on his statement. Does he agree that a primary move that the Department could make, in the award of enhanced discretionary grants, would be to review grant applications refused by education and library boards in the current round? That would rectify injustices that have occurred, mainly due to artificially early closing dates.
The Member's question refers to an issue with which I am frequently confronted - that is the efficacy and efficiency with which loan applications and applications for other forms of support are processed.
Closing dates are necessary for the efficient operation of the system, although, as I understand it, many of them can be treated flexibly. The dates are there for good reasons, and they are announced well in advance. Those who intend to apply for courses should become as aware of the requirements for securing financial support as they are of the academic requirements that they must meet.
It would not be easy to allocate what are limited resources without the closing dates. This is particularly true of discretionary awards. Those are very limited - they are not mandatory - and must be considered within a time frame in order to stop people from being disadvantaged. Such a situation would not be tolerable, and we need to observe the time frame. Whenever administrative difficulties have arisen they have been willingly addressed by those responsible.
I welcome the package of measures that the Minister has announced. I particularly welcome the introduction of a childcare grant to assist students on a low income who have dependent children. Does the childcare grant apply only in term time, and how many people will benefit from the grant?
The terms that were announced show that support is available at a level of 80% of cost in term time and, I think, 70% of cost out of term time. The introduction of such support will be of considerable assistance to those who, because of family commitments, find it difficult to participate in higher and further education. Approximately 1,000 students are thought to be in those circumstances at present. I hope that this will be seen as a significant measure of assistance to those who are already in the system and those who might currently be deterred from entering it.
I thank the Minister for his announcement and, in particular, for the additional £65 million that will be spent in the higher and further education sector over the next three years. Is he satisfied with the residual level income that will apply to families that have two or more children? Will this area be kept under review, and is he satisfied that the information is easily available to students and their families so that they will know which grants apply to them?
Will the 1,000 extra student places be affected by any subsequent review by the Health Minister, who is investigating the number of nursing and speech therapy students? Will any announcement by her be in addition to what the Minister has announced today? Does the Health budget cover the students in health areas?
With regard to the second part of the question, we will have to consult the relevant Minister and, indeed, the universities, because all places are university places, notwithstanding the source of the financial support that they receive. I think that it was Prof McWilliams who raised a question about the supply of professionals to the Health Service. Often when we examine the situation, it is a question of availability rather than supply. The question is whether the people with the professional qualifications are making themselves available in Northern Ireland for the positions that are advertised. I am prepared to look at that issue with the Minister of Health, Social Services and Public Safety.
Advice and guidance are given to ensure that parents, and, indeed, the students themselves, whether mature or still at school, are as fully informed as possible, and we are engaged with both the Educational Guidance Service for Adults and student representatives to ensure that that information is available. The whole system is individually related, because the commitments that parents have can vary depending not just on their income but on family circumstances. You cannot say that somebody with an income of £25,000 will be treated in the same way as somebody else with an income of £25,000, because circumstances may vary. Therefore, what is taken into account or disregarded will vary because of those circumstances. It is a complex system because individual circumstances vary.
The Minister of Higher and Further Education, Training and Employment (Dr Farren):
I beg leave to lay before the Assembly a Bill [NIA 12/00] to rename the Department of Higher and Further Education, Training and Employment as the Department for Learning and Employment.
Bill passed First Stage and ordered to be printed.
Mr Deputy Speaker:
The Bill will be put on the list of pending business until a date for its Second Stage has been determined.
The Minister of Finance and Personnel (Mr Durkan):
I beg to move
That the Second Stage of the Trustee Bill [NIA 11/00] be agreed.
The Trustee Bill reforms the law to make it easier for trustees to administer their trusts efficiently. The fundamental obligation on trustees dealing with trust property is, of course, to act in the best interests of the trust. Sometimes, however, trustees find that their ability to do so is hampered by restrictive rules dating from 1961, 1958 or even earlier. That can happen especially when trustees do not have the benefit of modern, professionally drafted trust deeds that invariably give wider powers to trustees than the statutory regime allows.
The intention is that these proposals will enable all trustees to enjoy the advantages of wider powers on a default basis when the trust documents themselves do not make such provision. At the same time there will be counterbalancing protection for beneficiaries through a new statutory duty of care.
The Bill is the result of a long and detailed process of consultation with interested parties. Public consultation looking at powers of investment was carried out by the Law Reform Advisory Committee for Northern Ireland in May 1996. The scope of investigation was later widened to include other powers and duties of trustees as it became clear that extending powers of investment alone would not remedy the situation for trustees. The Office of Law Reform examined the issues in liaison with the Law Commission and the Scottish Law Commission.
The subsequent Law Commission report No 260, 'Trustees' Powers and Duties', published in July 1999, contained a comprehensive draft Bill that was passed, with some amendments, as the Trustee Act 2000. In Northern Ireland a consultation paper was produced in September 2000 to investigate whether a similar package of reforms would be welcome here. The response was supportive, hence the Bill before the Assembly today.
The impetus for reform in this area of law began with dissatisfaction as regards trustee powers of investment. Investment of trust funds is central to proper administration of a trust. The conduct of investment business has changed dramatically over the last 10 to 15 years with the introduction of new technology and other developments. Unfortunately, the law has not kept up with these changes. Until now, trustees have not had easy access to the expertise of professional advisers, such as discretionary fund managers, or been able to react quickly to movements in the market. As a result, trustees relying on the default regime have not been able to maximise returns for their beneficiaries. The Bill seeks to remedy that situation.
The Bill contains a comprehensive package of reforms. The core proposal is a wider power of investment. That general power of investment is supplemented by new powers to purchase land, to appoint agents, nominees and custodians, to insure trust property, and to make payment to professional trustees. The new powers will be overseen by a new statutory duty of care in order to protect beneficiaries against abuse.
There will also be powers for beneficiaries to direct the appointment or retirement of trustees. The new trustee powers and duties will apply to all trustees on a default basis; that is to say that the powers will be available to them automatically, unless the trust instrument excludes them. The powers will apply to existing trusts, as well as those to be set up in the future. It is expected that the powers will be of most benefit to older trusts and home-made trusts.
Part I of the Bill introduces a statutory duty of care, to be imposed on trustees carrying out a range of functions described in schedule 1. In summary, those functions relate to investment, acquisition of land, use of agents, nominees and custodians, compounding of liabilities, insurance of trust assets and powers involving reversionary interests, valuations and audit. This duty of care is a safeguard for beneficiaries. It is a counterbalance to the wider powers conferred on trustees by the Bill. However, it will apply not just to the new powers, but also when a trustee is exercising similar powers given by the trust instrument itself. It will not apply where the trust instrument says that it should not. The standard expected of a trustee will be to use such care as is reasonable in the circumstances, bearing in mind any special knowledge or experience the particular trustee may have or claim to have. There is a degree of flexibility built in, as more will be demanded from expert trustees than from others.
Part II of the Bill deals with powers of investment. At present, unless the trust instrument provides otherwise, trustee powers of investment are governed by the Trustee Act (Northern Ireland) 1958, the Trustee Investments Act 1961, and the Trustee (Amendment) Act (Northern Ireland) 1962. There are schedules of specified, authorised investments and a network of rules. The regime is complicated and expensive to administer, and severely restricts the investment opportunities open to trustees. Not surprisingly, it is always rejected by advisers drawing up trusts nowadays in favour of wider powers.
The priority of the Bill is to replace this regime with arrangements reflecting modern needs, still on a default basis. Clause 3 is fundamental in this. It gives trustees the general power of investment - that means the power to make any kind of investment that they could make if they were absolutely entitled to the trust assets. Investments in land are excluded from the general power of investment, but not barred to trustees, because they are given the power to invest in land separately, in Part III of the Bill. The reason for separate treatment of land transactions is to facilitate the making of consequential amendments to other legislation.
Clauses 4 and 5 impose specific duties on trustees in making investment decisions. They must review the investments from time to time; they must bear in mind suitability and diversification; and they must obtain and consider proper advice where appropriate. These provisions are valuable safeguards for beneficiaries. They are in addition to the duty of care.
Clauses 6 and 7 define the scope of this new investment power. It is a default provision. Subject to contrary provisions in the trust instrument, it applies to both existing and newly created trusts. However, the wishes of the person setting up a trust should be respected. The Bill allows for that, except in one particular situation. In the case of trust instruments dating from before 3 August 1961, restrictions on the scope of powers of investment are set aside. The significance of that date is that it was when the Trustee Investments Act 1961 came into operation. At that time, all pre-existing restrictions on investment were swept away and replaced by the 1961 Act regime. It would be wrong to reactivate those old restrictions now, forty years later, so clause 7(2) confirms their demise.