Joint Committee on Statutory Instruments Twenty-Seventh Report


APPENDIX 1

Memorandum by the National Assembly for Wales

EDUCATION (NATIONAL CURRICULUM) (TEMPORARY EXCEPTIONS FOR INDIVIDUAL PUPILS)

  (WALES) REGULATIONS 1999 (S.I. 1999/1815)

    1. In their letter of 14 July 1999, the Committee have asked for a memorandum on the following points:

    "As regards regulation 14 (Right of appeal from head teacher)—

    (a)  explain why the regulation purports to confer the right of appeal already conferred by   section 367 of the Education Act 1996;

    (b)  does the Department agree that—

(i)    in the case provided for in regulation 14(a), section 367 confers power only to prescribe the period during which the head teacher fails to give notice of his decision;

(ii)  in the case provided for in regulation 14(b), section 367 confers power only to make provision about the manner and circumstances of the parent's request?"

    2. These regulations were made by the Secretary of State for Wales under powers contained in the Education Act 1996 which have now vested in the National Assembly for Wales under the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672).

    3. As regards the Committee's point (a), regulation 14 was not intended to confer the right of appeal which is already conferred by section 367 of the Education Act 1996. We accept, however, that it purports to have effect which is regrettable.

    4. As regards (b), it is agreed that section 367 confers power only to prescribe the period during which the head teacher fails to give notice of his decision and power to make provision about the manner and circumstances of the parent's request.

    5. Regulation 14 consolidates regulation 14 of the Education (Temporary Exceptions for Individual Pupils) Regulations 1989 (S.I. 1989/1181), which was, unfortunately, unhappily worded. However, since the right of appeal cannot be conferred by the Regulations, it is considered that regulation 14 could only sensibly be construed as prescribing the matters referred to in section 367(1) of the 1996 Act. In other words, the right of appeal arises where the head teacher—

    (a)  gives, revokes or varies a direction under the Regulations (section 367(1)(a));

    (b)  refuses to give, revoke or vary a direction in response to a parental request made in the manner and circumstances set out in regulation 12 (section 367(1) and regulation 14(b)); or

    (c)  fails to give notice of his decision within 2 weeks of receiving a parental request (section 367(1)(c) and regulation 14(b)).

    6. In practice, therefore, we do not anticipate that the wording of this provision will give rise to any difficulties. However, the Assembly will be asked to consider amending this regulation at an appropriate opportunity.

19 July 1999


 
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