Select Committee on Deregulation and Regulatory Reform Fourth Report

Appendix 6

Note by the Committee's Legal Adviser

Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) (England) Order 2002

Drafting points


Why has "payable" been changed to "paid" in the final words in quotes? The provision surely needs to apply where expenditure is met initially from funds provided by the LEA as well as where the governing body use such funds to reimburse themselves for past expenditure.

Art. 7(a)(i)

Does this need to cover expenditure by the governing body of implementing proposals under s. 28(2) (making a prescribed alteration)? If so, "by virtue of this Schedule" seems too narrow.

Art. 7(a)(ii)

The same words seem inapt here, as there is nothing in Schedule 3 requiring a 'relevant body' to incur any expenditure. Why have the existing words "on behalf of the governing body" been changed?

Art 7 (d)

I assume the omission of "repairs" from new paragraph 5(5) in Schedule 3 is deliberate (although I note the Statement refers to 'capital repairs' (governors' liability) and ' revenue repairs' (LEA liability). The department might be asked to confirm.

Art 7(e)

Why has "expenses" in paragraph 5(11) (which seems correct) been changed to "expenditure"?

Art. 9(1)(a)

Why has the expression "initial expenses" been changed? This seems unnecessary, makes the cross-heading inapt and may create an unintended ambiguity in the references to "that expenditure" following sub-paragraph (a).


The reference to "(b)" is wrong. The words concerned follow that sub-paragraph.

Art. 11

Why is this limited to caretakers' dwellings? What parts of VA school premises does the LEA own?

Art. 11(1) and (2) needs to be tied to land forming part of the premises of a particular VA school; and 'commencement date' needs defining in Schedule 22.

The drafting of this paragraph might be improved in a number of respects.

Art. 12

In line 1 "capital expenditure" should be in quotes and "expenditure on" should be inserted after "means".

At the end of paragraph (2) why is the expression "expenditure for capital purposes" used instead of "capital expenditure"?

In paragraph (3)(b) the meaning of "generally recognised" is unclear (but since the practices need not appear in a published code this element seems to add nothing), nor is it clear by whom the practices are to be regarded as proper, nor whether the last 7 words qualify "accounts" or "local authorities", nor what "the description concerned" means.

"Schedule" in paragraph (4) should read "article". The drafting of this paragraph could be improved.

In paragraph (5) "Sub-paragraphs" should read "Paragraphs" and "under" should read "in". It would be better if "an order of the kind mentioned [in] section 4(4) of that Act" read "a subordinate provisions order (within the meaning of section 4(4) of that Act) made in respect of those provisions".

Art. 13

The meaning of "approved" is not clear, as paragraph 5 of Schedule 3 does not provide for obtaining approval: and the amendments to paragraphs 5(3)(a) and 6(5) make a nonsense of the existing references to 100% grant. The need for the amendment to paragraph 6(5) is not clear.


"Approved" again. Why does this refer to alterations (which remain the responsibility of the governing body)? The drafting might be improved.

Art. 15

What is the purpose of this? The LEA are responsible for this expenditure before and after the Order, so it appears to have the effect of limiting that responsibility to cases where a Supplementary Credit Approval has been issued. That seems odd.

Art. 16

Apart from grammatical errors, it is not clear how one is to know what works "are related to" the article 15 works.

The Explanatory Note might be improved -

_  third paragraph, in the second sentence the reference to paragraph 6(2) does not work, since it concerns promoters of new schools not governing bodies;

_  fourth paragraph, "necessary to conform" should read "necessary to ensure that the school premises conform";

_  fifth paragraph, this needs amplifying to explain what is meant by "proposals" and instead of "buildings that form part of school premises but are not school buildings" (the meaning of which is clear only to a reader familiar with the technical meaning of these terms) it would be more helpful simply to identify the buildings referred to.

_  eighth paragraph, should explain more clearly the effect of the transitional provisions;

  • ninth paragraph, an explanation of the meaning given to "capital expenditure" would more helpfully appear in paragraph two, and this paragraph should indicate that the order specifies that a subordinate provisions order will be subject to negative resolution procedure.

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