Select Committee on Delegated Powers and Deregulation Seventeenth Report

ANNEX (continued)


  Clause 1: Power to set infant class sizes

13.      Clause 1 requires the Secretary of State to make regulations that will impose limits upon the number of pupils who may be in an infant class with a single qualified teacher. Subsection (1) enables him to state in regulations what the limits shall be, and the dates from which they will apply. Subsection (3) provides for regulations to impose different limits, and/or different dates for different year groups in schools, and for regulations to specify circumstances in which limits shall not apply or shall apply in a specific manner.

14.      The Government have announced that a limit of 30 will apply to all infant classes from September 2001. It is clear that such a major change cannot be imposed overnight. The use of regulations allows for flexibility in the imposition of the limits on different year groups; in particular it should be noted that the date from which limits should apply to the different year groups will be linked to the approaches set out in the plans to be produced by LEAs under clause 2, so decisions on the period from September 1999 to July 2001 must await the evaluation of such plans by the Secretary of State. The use of regulations to determine allowable exceptions also permits the Secretary of State to react appropriately to any practical difficulties which have not been envisaged. Given such a number of imponderables, and the level of detail involved, it is considered that it would not be possible to implement the policy without the flexibility afforded by a regulation making power.

  Clause 2: Plans by LEAs for reducing class sizes

15.      The use of a regulation making power in relation to such documents to set out the detail of what is to be provided, and the consultation to be undertaken, is well presented. This approach provides the essential flexibility to keep the detail under review and make changes where necessary.

16.      Subsection (2) enables the Secretary of State to determine the contents and form of the statements. Subsection (3) permits regulations to prescribe the consultation that LEAs shall carry out when preparing statements. Subsection (4) allows regulations to impose a duty upon other bodies or persons (e.g. governing bodies of schools) to provide LEAs with the information they may require to enable them to prepare statements. Subsection (5) permits the Secretary of State to determine in regulations the date by which statements must be submitted for his approval, and allows him to impose different dates upon different LEAs (although he may grant an extension of time to an individual LEA without having to make further regulations).

17.      Statements are likely to be relatively complex documents which will need to contain a large amount of information. It is however important that they can be produced without placing undue burdens on schools or LEAs. LEAs and others will therefore be consulted about the details of the statements they will have to provide. The use of regulations will allow the Secretary of State to have regard to issues raised in this consultation. We believe it is therefore appropriate for regulations, made by negative resolution, to be used.

  Clause 3: Payment of grant in connection with reductions in infant class sizes

18.      Clause 3 requires the Secretary of State to make regulations providing for the payment of grants to LEAs in respect of the expenditure they may incur in the course of securing the limits imposed under clause 1 (see subsection (1)).

19.      Subsection (2) requires the Secretary of State to provide in regulations for grant to be withheld from LEAs whose statements he has not approved, and to have regard to the arrangements set out in statements when determining whether any grant (and if so, what amount) is to be paid to LEAs. Subsection (3) permits the Secretary of State to make the payment of grant subject to certain conditions, and to require LEAs receiving grant to comply with such conditions.

20.      Grants will be paid annually and the conditions to which the payment of grant will be subject will be reviewed each year. It would not be possible to achieve this flexibility without a regulation making power.

  Clauses 6 and 7: Education Development Plans

21.      Clause 6 enables the Secretary of State to make regulations covering the content and frequency of Education Development Plans which LEAs are to be required to prepare. Education Development Plans consist of a statement of proposals by LEAs for raising standards of pupils and improving performance of schools; and annexes to the statement.

22.      Subsection (1) allows the Secretary of State to determine in regulations the intervals at which LEAs must submit Education Development Plans. Subsections (4) and (5) provide for the Secretary of State to issue regulations setting out the content of the statement of proposals and the content of the annexes to the statement. Under subsection (8) LEAs must have regard to any guidance given from time to time by the Secretary of State.

23.      These provisions will be detailed. They are likely to require revision to allow changes in local arrangements and timescales. For these reasons, they seem an appropriate subject for regulations (subject to negative resolution) rather than primary legislation.

24.      Clause 7 deals with the approval, modification and review of the LEA's statement of proposals. Subsection (1) allows the Secretary of State to stipulate in regulations the date by which LEAs have to submit their statement of proposals for his approval. Subsection 4(b) enables the Secretary of State to determine in regulations the date whereby an LEA must submit a revised statement if required by the Secretary of State. Subsection (9) allows the Secretary of State to set out in regulations the manner and date by which LEAs shall publish their Education Development Plan and the persons to whom it should be provided. Regulations subject to negative resolution will allow the necessary flexibility over the dates.

  Clause 9: Parent representatives on Education Committees

25.      This clause allows the Secretary of State to make regulations, subject to negative resolution, about the inclusion on LEA committees of representatives of parent governors at maintained schools.

26.      The regulations will enable the detail of the arrangements for parent governor representatives to be set out. Some of the issues which regulations may prescribe are listed in subsections (7) and (8). They include: the number of representatives; election procedures; voting rights; terms of office; and any exceptions allowing authorities with a small number of schools to appoint representatives of parents, rather than parent governors. This level of detail would not be appropriate for primary legislation.

27.      The Government will be consulting on the proposed content of the regulations. The use of regulations will allow further time to consult with the various interested parties, after Royal Assent, to ensure the detail is appropriate and that broad consensus is achieved. Regulations will also allow a degree of flexibility to adjust arrangements in response to experience and/or as circumstances change.

  Clause 10: Establishment of Education Action Zones

28.      Subsection (1) allows the Secretary of State to make an order creating an Education Action Zone (EAZ) in a particular area for the purpose of improving educational standards. The order will specify which schools constitute the EAZ. Subsection (2) allows the Secretary of State to make an order extending the duration of the EAZ from 3 to 5 years, with the agreement of each participating school. Subsection (3) allows the Secretary of State, by order, to add to the list of schools in the EAZ, after its establishment, by including any school subject to special measures (clause 15 of the Bill), providing that the school to be added, as well as the participating schools, agree. Such matters are clearly apt to be addressed in subordinate legislation.

29.      Subsection (7) allows the Secretary of State to make an order to apply the EAZ provisions to Wales. Subject to the passage of the Government of Wales Bill, it is anticipated that the establishment and operation of EAZs in Wales would be a matter for the Welsh Assembly.

  Clause 11: Establishment of the Education Action Forum for the Zone

30.      Subsection (1) provides for an Education Action Forum to be set up for each EAZ established under clause 10(1). An order made under subsection (2) provides for the constitution of the Education Action Forum and its membership. The order requires the Forum to include: an appointee from each governing body that wishes to provide one; and one or two members appointed by the Secretary of State. This is the minimum prescription for the membership of the Forum. We would expect the order to provide for a variety of membership to reflect the local circumstances in the EAZ and therefore it would not be appropriate to deal with this in primary legislation.

31.      Subsection (5) allows the Secretary of State to make an order dissolving the Education Action Forum when the EAZ ends, and make provision for transfer of property, rights, liabilities of the Forum and preparation of final accounts. Again, this will need to reflect specific local circumstances and is therefore an appropriate matter for secondary legislation.

  Clause 12: Functions of the Action Forum

32.      Subsection (3) allows regulations to be made relating to governing body functions carried out by the Forum under subsection (2) in terms of:

        a.    the circumstances in which governing bodies can make arrangements with the Forum;

        b.    the procedures they must follow to do this;

        c.    the procedures the Forum must follow when taking on these functions;

        d.    the statutory provisions relating to governing bodies which will apply, with any prescribed modifications, to the Forum, when powers have been ceded to it under 12(2)(b).

33.      The intention of clause 12 subsections (2) and (3) is to allow governing bodies to choose from two different ways of using the Forum, if they want to. These are:

        a.    agency powers, where the Forum carries out the function as an agent of the governing body. Schools will be able to choose one, or a combination of functions, to pass to the Forum, to be described in regulations under subsection (3). The Bill provides that the governing body remains legally responsible and can decide at any point if it wishes to take back the function from the Forum.

        b.    ceding powers to the Forum. Governing bodies must select all of a specific group of functions, to be passed to the Forum. The group of governing body functions available for ceding will be described in regulations under subsection (3). The Bill provides for the functions to become the Forum's legal responsibility, and remain so for the life of the EAZ.

34.      The details of which functions may be ceded is a matter of administrative detail to be kept under review in the light of experience, and which would not be appropriate for inclusion on the face of the Bill.

  Clause 13: Disapplication of Teachers' Pay and Conditions Document

35.      Subsection (4) allows the Secretary of State, on receipt of an application from a school in an EAZ, to make an order disapplying subsections (6) and (7) of the Teachers' Pay and Conditions Document. Such orders will be specific to a particular school and are clearly appropriate for delegated legislation.

  Clause 20: New categories of maintained school

36.      Subsection (6) allows the Secretary of State to set the "appointed day" (the day on which the new categories of school take effect) by order (S.I. but not subject to parliamentary procedure). This is necessary because the exact day may depend to some extent on the timing of Royal Assent. Ministers made it clear in Commons Committee that they expect the appointed day to be 1 September 1999.

  Clause 21: Kinds of foundation and voluntary schools and types of foundation

37.      Subsection (5) allows the Secretary of State to make regulations (S.I.: negative resolution) governing the establishment, membership, functions and winding up of foundation bodies, and the process by which schools join or leave a group foundation. Subsection (6) specifies that these regulations may, in particular, provide for:

        a.    the transfer of property to and from foundation bodies;

        b.    the appointment of foundation governors by foundation bodies;

        c.    a model instrument of government for foundation bodies;

        d.    the resolution of disputes within groups; and

        e.    a requirement for the governing body of a school leaving a group to publish statutory proposals under certain circumstances.

38.      Subsection (7) allows the regulations to apply any provisions in Part II or to modify or replicate them.

39.      These provisions will be very detailed. They may well need adjustment in the light of practical experience with the first group foundations, and they will probably only be relevant to a small number of schools. For all these reasons, they are an appropriate subject for regulations.

40.      Subsection (8) allows the Secretary of State by order (not S.I.) to modify the instrument of government adopted by a foundation body. This will be necessary when, for example, a school joins or leaves a group. Such modifications will be specific to individual cases, and will not be of interest to the wider public. It is therefore appropriate for them to be made by orders which are not S.I.s.

  New arrangements for the organisation of schools

41.      Clauses 23-34 inclusive together with Schedules 4 to 8 provide for new arrangements for dealing with proposals for change to the organisation of maintained schools. The Government believes that these would more appropriately be handled at local level.

  Clause 23: School organisation committees

42.      Clause 23 provides for the establishment in each LEA area in England of a school organisation committee. Subsection (2) provides that the constitution of the committee shall be the subject of regulations and subsection (3) requires those regulations to secure representation of certain school providers on each school organisation committee. It is possible that in the light of experience it will be desirable to make some changes to the constitution of the committees. Regulations under this clause are likely to be made in conjunction with those under paragraphs 2 and 5 of Schedule 4.

  Clause 24: Adjudicators

43.      Clause 24 provides for the appointment in England by the Secretary of State of adjudicators. Subsection (2) provides for regulations to determine the allocation of matters required in the Bill to be referred to the adjudicator. Such regulations, which are likely to be made in the same instrument as regulations under paragraph 5 of Schedule 5, will concern matters of administrative detail and are thus an appropriate subject for secondary legislation.

  Clause 25: School organisation plans

44.      Clause 25 provides for the preparation and approval of a school organisation plan for each LEA area. Subsection (3) provides for regulations to describe the form and content of the plan and subsection (4) for the procedure for preparation and approval. Subsection (5) describes some of the matters which can be included in these regulations. These regulations will include technical and procedural detail, which might be revised over time.

45.      Subsection (6) provides for the preparation and adoption of a school organisation plan by each LEA in Wales, and provides for regulations to prescribe the procedure for preparation and adoption.

46.      Subsection (7) describes some of the scope of these regulations. As with the provisions for England, these will include technical and procedural detail which might change over time.

  Clause 26: Power to require committees for adjudicators for Wales

47.      Clause 26 enables the Secretary of State for Wales to make regulations which provide for the establishment of school organisation committees, and the appointment by the Secretary of State of adjudicators, for Wales. It also allows for the provisions of clauses 23 and 24, Schedules 4 and 5 and other provisions relating to adjudicators and school organisation committees to be applied (with or without modification) in relation to school organisation committees or adjudicators in Wales.

48.      With very few exceptions it is the intention that the powers of the Secretary of State for Wales to make secondary legislation will transfer to the Welsh Assembly, subject to the passage of the Government of Wales Bill. Clause 26 will enable the Welsh Assembly to introduce school organisation committee and adjudication arrangements in Wales, if it wishes (assuming the powers have not already been exercised by the Secretary of State for Wales prior to devolution).

49.      The provisions relating to school organisation committees and adjudicators will have been considered by Parliament in the context of England. It is therefore considered that this modest power to apply those provisions to Wales should be subject to negative resolution procedure. If the power is exercised by the Welsh Assembly, the Assembly's approval would be required under a procedure set out in what is currently clause 68 of the Government of Wales Bill, which will apply to all Assembly subordinate legislation.

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