Joint Committee on Statutory Instruments Thirty-First Report


The Education (National Curriculum) (Temporary Exceptions for Individual Pupils) (England) Regulations 2000 (S.I. 2000/2121)

10. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are in a number of places defectively drafted.

11. These Regulations, made principally under sections 365 to 367 of the Education Act 1996, enable head teachers of certain maintained schools in England to direct that the provisions of the National Curriculum should not apply to a pupil, or should do so with modifications.

12. Regulation 1(3) defines the expressions "general direction" and "special direction" as "directions given in the circumstances specified in regulation 3(1)(b)(i) or (ii) respectively". Regulation 3(1), which sets out the circumstances in which directions may be given, is not further subdivided. Regulation 4(1), which is headed "General and special directions" distinguishes a direction disapplying the National Curriculum altogether (sub-paragraph (a)) from a direction modifying its application (sub-paragraph (b)). The Committee therefore asked the Department for Education and Employment to verify the reference in regulation 1(3) and explain the meaning of those expressions.

13. The Department, in its memorandum printed in Appendix 5, confirms that the reference is incorrect and should have been to "regulation 3(1) and (2)". A "general direction" is thus one made in the circumstances referred to in regulation 3(1) and a "special direction" is one made in the circumstances referred to in regulation 3(2), albeit that either kind of direction may make either kind of provision referred to in regulation 4(1). The Committee therefore reports regulation 1(3) for defective drafting, as acknowledged by the Department.

14. Regulation 2(1) revokes previous Regulations providing for the giving of directions. Regulation 2(2) provides that, notwithstanding the revocation of the previous Regulations, anything done under the revoked Regulations "on a date prior to the day before the day on which these Regulations come into force" is to have effect as if done "on that date" under the corresponding provision of these Regulations. The Committee asked the Department to explain the intended effect of regulation 2(2) and, in particular, why the underlined words had been included and whether "that date" was intended to refer to the date of the act in question or the date on which these Regulations came into force.

15. The Department in its memorandum explains that the intended effect of this provision is to ensure that directions given prior to the commencement of these Regulations remain operative but are subject to the requirements of these Regulations. The Department acknowledges that regulation 2(2) is incorrectly drafted. Either "prior to the day" or "before the day" should have been omitted. The reference to "that date" is intended to refer to the date of the act in question. The Committee reports regulation 2(2) for defective drafting, as acknowledged by the Department.

16. Regulation 9(1) provides that, where a general direction has been given, a further direction may be given beginning, as the case may be, "(a) immediately after the end of the operative period of the first direction; and (b) immediately after the expiry of a further direction given under sub-paragraph (a)". Regulation 10(2) provides that, where a special direction has been given, a further direction may be given "beginning immediately after the expiry of the operative period of the first direction". But regulation 10(3) then specifies the number of times a further special direction may be given, which in the case of sub-paragraph (c) is "any number of times while paragraph (1)(c) applies". Given the contrast between the wording of regulations 9 and 10, the Committee asked the Department to explain whether the intended effect of regulation 9(1) was that a further general direction may be given any number of times or only twice, and why the regulation did not expressly indicate the number of times such a direction may be given.

17. In its memorandum the Department explains that the intended effect of regulation 9(1) is that only two further general directions may be given. Regulation 9(1)(b) only permits a second further direction to be given immediately after the expiry of the operative period of a further direction given in accordance with regulation 9(1)(a), which in turn may only be given immediately after the operative period of the first direction. Regulation 10(3) spells out the number of times a further special direction may be given because a different number is permitted in different cases.

18. The Committee does not find this explanation satisfactory. Regulation 10(3) has the effect that the expression "first direction" in regulation 10(2) does not always bear its literal meaning, yet that meaning is intended in regulation 9(1). In the Committee's view the intended effect of regulation 9(1) should have been made clear and it therefore reports regulation 9(1) for defective drafting.

19. Regulations 9(2), 10(4) and 11(2) provide that regulation 6 (which makes provision for information about directions) shall apply to a further direction (of the kinds referred to in those regulations) as it applies to a direction. The Committee asked the Department to explain the need for these provisions and, if needed, why they do not also apply regulations 5, 7 and 8 (which deal with the form and content, variation and revocation of directions). The Department's memorandum states that it is intended that "regulations 5 and 7" should apply to further directions, but it was not thought necessary to state this because regulations 5 and 7 are not expressed to apply only to the first general or special direction. The Department does, however, recognise that it would have been better to have referred to these regulations as well.

20. Leaving aside the Department's failure to deal with regulation 8, the Committee does not understand this explanation. Regulation 6 equally is not expressed to apply only the first general or special direction. The Committee considers it doubtful whether it is necessary expressly to apply any of regulations 5 to 8 to a further direction. But to provide expressly for only one of them to apply creates a doubt as to the intention in respect of others. The Committee therefore reports regulations 9(2), 10(4) and 11(2) for defective drafting, effectively acknowledged by the Department.

21. Regulation 11 provides for the giving of a further direction based on different reasons from an earlier direction but, in contrast to regulations 9 and 10, makes no provision as to when the further direction is to commence or its maximum duration. The Committee asked the Department to explain the reason for this. In its memorandum the Department states that no such provision is made because regulation 4, which deals with these matters, will apply. As in the case discussed in the preceding paragraph, the Committee recognises that this could be the case but considers that the inclusion of paragraph (2) of regulation 11 creates a doubt as to whether this is intended. It therefore reports regulation 11 for defective drafting.

22. The Department undertakes to correct these errors immediately, if the Committee is of the view that this should be done. The Committee considers that the defects identified are sufficiently serious to require prompt amendment and therefore urges the Department to make amending Regulations (which should be issued free of charge to known recipients of these Regulations in accordance with paragraph 3.24 of Statutory Instrument Practice) at the earliest opportunity.


 
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