Select Committee on Delegated Powers and Deregulation Seventeenth Report


ANNEX (continued)

  CLAUSE BY CLAUSE ANALYSIS OF DELEGATED POWERS (Clauses 27 - 69)

  Clauses 27 and 28: Proposals for establishment, alteration or discontinuance of community, foundation or voluntary school

50.      Clause 27 subsections (1) and (2) enable the Secretary of State to prescribe in regulations the changes to a school that will require the publication of proposals. Publication requirements will need to be specified in detail for the first time for mainstream schools, and it is important that there is scope to adjust them in the light of experience of operation of the local decision making system as well as in response to changing circumstances.

51.      Subsection (3) enables the Secretary of State to make regulations prescribing the information to be contained in proposals and the manner in which they should be published. For proposals in England, subsection (6) enables the Secretary of State to prescribe what additional information should be provided to the School Organisation Committee. For proposals in Wales, subsection (7) enables the Secretary of State for Wales to prescribe what additional information should be provided to him.

52.      Subsection (9) enables the Secretary of State to make regulations modifying the provisions of subsection (6) and Schedule 6 where proposals are for the transfer of a school to a new site in a different LEA area or relate to a school which is or is proposed to be situated in an area other than that of the LEA who maintain or who it is proposed should maintain the school.

53.      Clause 28 subsection (3) enables the Secretary of State to make regulations prescribing the information to be contained in proposals and the manner in which they should be published. For proposals in England, subsection (5) enables the Secretary of State to prescribe what additional information should be provided to the school organisation committee. For proposals in Wales, subsection (6) enables the Secretary of State for Wales to prescribe what additional information should be provided to him.

54.      Subsection (8) enables the Secretary of State to make regulations modifying the provisions of subsection (5) and Schedule 6 where proposals relate to a school which is situated in an area other than that of the LEA who maintain the school.

55.      The use of regulations by negative resolution in clauses 27 and 28 avoids placing a large amount of procedural and administrative detail on the face of the legislation, and ensures that procedures can be kept up to date in the light of experience of the operation of the system.

  Clause 30: Special schools maintained by LEAs

56.      The regulation making powers in subsections (1), (3), (5) and (6) are identical to those in clause 27(1), (3), (6) and (7). The regulation making powers are considered appropriate for the same reasons as the regulation making powers in clauses 27 and 28.

  Clause 32: Provision of information on statutory proposals

57.      Subsection (4) enables the Secretary of State to make regulations to require proposers, the school organisation committee and the adjudicator to provide him with information on statutory proposals. This is necessary so that the Secretary of State and others are able to be aware of proposed changes.

58.      Regulation making powers by negative resolution will allow the necessary degree of flexibility. The information which will be sought will be used for many purposes and there may be a need to change the information which is required following experience of the first few months of the devolved system for statutory proposals.

  Clause 34: School changing from one category to another

59.      Subsection (2) enables the Secretary of State to prescribe a moratorium period during which schools may not change their category. The use of regulations enables the Secretary of State necessary flexibility of timing.

  Clause 37: General responsibility of governing body for conduct of school

60.      Subsection (3) provides that regulations may set out terms of reference for governing bodies; define the respective roles of head teachers and governing bodies; and confer functions on them.

61.      The regulations may set out in general terms how head teachers and governing bodies should work together, and indicate the parameters of governing body activity. They may also carry forward those provisions currently in articles of government (which are to be abolished under the Bill) where they have not been picked up elsewhere in the legislation.

62.      The Government intends to consult on the regulations and have the flexibility to amend them in the light of experience. It is considered that regulations made under the negative resolution procedure will allow the necessary flexibility.

  Clause 38: Additional functions of governing body

63.      Subsection (1) provides that governing bodies shall, in accordance with regulations, establish and publicise procedures for dealing with all complaints relating to the school (except where there are already statutory procedures for dealing with certain complaints).

64.      The regulations might cover responsibility for handling complaints; a requirement for a mechanism for appeals to be heard; responses to complaints; and the records which should be kept. The provisions would be procedural. The Government proposes to consult widely on them and to build on current best practice. It will be necessary to have sufficient flexibility to change the provisions if it appeared at a later date that that would be helpful. It is therefore appropriate for them to be placed in regulations, subject to negative resolution procedure.

  Clause 40: Responsibility for fixing dates of terms and holidays and times of sessions

65.      Subsection (3) of this clause provides for regulations to make provision for procedures to be followed when the governing body of a community, community special or voluntary controlled school propose to change the time of school sessions. Regulations can also provide as to the implementation of proposals and for deciding who is or is not a parent.

66.      The use of a regulation power replaces section 148 of the Education Act 1996, which sets out in detail the procedures to be followed in the case of proposals to change the session times of county, voluntary controlled and LEA-maintained special schools. Regulations by negative resolution allow the necessary degree of flexibility.

  Clause 41: Governors' reports and other information

67.      Subsection (1) allows the Secretary of State to make regulations specifying the content and other requirements for the governors' annual report in respect of maintained schools.

68.      Subsection (2) provides that the regulations can:

        a.    impose requirements on the governing body with respect to the distribution of their annual report; and

        b.    make provision as to the languages and form the report is produced in.

69.      Clause 41 replaces provisions in the Education Act 1996 which previously applied through articles of government for schools. At present Schedule 17 to the Education Act 1996 states what the articles of government for county, voluntary and maintained special schools must require as to the content of the governors' annual report. The Secretary of State may by order amend Schedule 17; he is thus able to change the requirements for the governors' annual report. Such orders are made by S.I., subject to the negative resolution procedure. Individual schools' articles of government then have to be amended by order made by their LEA.

70.      The present arrangements for amending the content of the annual report are administratively complicated. This clause will simplify the arrangements and bring them into line with those for school prospectuses. The use of a regulation power by negative resolution procedure is consistent with the arrangements for school prospectuses.

  Clause 42: Annual parents' meetings

71.      Clause 42 requires the governing body of a maintained school to hold an annual parents' meeting, and sets out exceptions to the requirement. The clause replaces sections 162 and 163 of, and Schedule 18 to, the Education Act 1996, which applied provisions on the annual parents' meeting through articles of government which are abolished by this Bill. The intention is that in future these provisions should apply directly through legislation.

72.      Subsection (4) provides the power to make regulations dealing with the proceedings of the annual parents' meeting. These would include matters such as voting rights, requirements on the governing body and head teacher in relation to resolutions, and who should be treated as a parent of a registered pupil at the school.

73.      It is intended that these regulations should broadly replicate the existing provisions contained in Schedule 18 to the Education Act 1996 and articles of government which are being abolished. For that reason regulations subject to the negative resolution procedure are considered to be appropriate.

  Clause 43: Arrangements for government of new schools

74.      This clause requires the LEA to make arrangements for the constitution of temporary governing bodies once proposals for the establishment of new maintained schools have been approved. Regulations under subsection (5) will cover the making and termination of arrangements for the constitution of temporary governing bodies, including any arrangements made in anticipation of approval of proposals for a new school; the constitution, meetings and proceedings of temporary governing bodies; the payment of allowances to temporary governors and the appointment of clerks; the transition from a temporary governing body to a body constituted under an instrument of government; and any other matters the Secretary of State may consider appropriate. Regulations under subsection (5) may modify, apply, or make provision similar to any provision made by or under Schedules 9 to 12 of the Bill.

75.      The regulations under subsection (5) will broadly carry forward provisions in existing primary legislation. It is considered that the detail is more appropriate to secondary than primary legislation. In practice, new schools are rare and temporary governing bodies are short lived. The issues are ones of detail, and may require revision from time to time.

  Clause 45: Determination of LEA's general schools budget and aggregated schools budget

76.      Clause 45 empowers the Secretary of State to make regulations (S.I.: negative resolution):

        a.    defining the scope of the LEA's general schools budget or GSB (subsection (1));

        b.    defining categories of expenditure for which LEAs may or must set aside funding within the GSB (subsections (2) and (3)(a)); and

        c.    specifying any quantitative limits and/or other conditions which the Secretary of State may wish to attach to any of the items in b. (subsection (3)(b)).

77.      The balance of the GSB, after deduction of the items referred to in b, forms the aggregated schools budget (ASB) which must be distributed to schools in accordance with regulations made under clause 46.

78.      Clause 45 effectively replaces sections 101(3)-(4) and 105 of the Education Act 1996, which between them define the GSB (section 101); requires LEAs to deduct from the GSB the items of expenditure detailed in section 105(3) and any items prescribed in regulations made under that subsection; and empower LEAs to deduct such items as are specified in their "schemes" made under section 103 and approved by the Secretary of State.

79.      Current schemes require LEAs to ensure that at least 85% of the Potential Schools Budget (PSB) - a control total based on the GSB minus some but not all of the items deducted from it - is distributed to schools via the ASB. This requirement replaced (in 1993) an earlier rule whereby certain specified items were restricted in total to 10% of the GSB; and the PSB was itself redefined in 1995. It is however unsatisfactory that changes in national policy should have to be effected by securing changes to each individual LEA's scheme through the cumbersome procedures in sections 111ff of the 1996 Act.

80.      Regulations, made by negative resolution, will provide a more straightforward legal basis for the implementation of national policies, and will subject the policies themselves to a measure of Parliamentary scrutiny which at present applies only in relation to items prescribed under section 105(3) of the 1996 Act. The use of regulations will also allow the GSB to be defined to a more satisfactory level of detail than would be feasible on the face of the Bill.

  Clause 46: Determination of school's budget share

81.      Subsection (1) empowers the Secretary of State to make regulations (S.I.: negative resolution) with which LEAs must comply when determining schools' budget shares. Subsection (2) lists matters which may be covered in the regulations. The regulations may deal with consultation procedures to be followed by LEAs, as well as the methods to be used in calculating budget shares.

82.      Present legislation requires the aggregated budget (ASB) to be distributed via a formula set out in the LEA's approved scheme (Education Act 1996, section 106(1)-(2)). In exercising his powers in relation to schemes, the Secretary of State's policy has been to allow LEAs fairly wide discretion as to the detailed content of their formulae, so long as certain basic principles are observed. The main principles are that most of the available funds should be allocated by pupil numbers; the remaining funding should be allocated, so far as possible, on the basis of objective factors: that is to say, factors based on measurable characteristics of schools and consistently applied to all schools.

83.      The legislation provides only that the formula must take account of the number and ages of each school's registered pupils (1996 Act, section 106(4)(a)); that other factors should be needs-related (section 106(4)(b)); and that adjustments are made to school budgets in respect of pupils who have been permanently excluded (section 494).

84.      These arrangements are unsatisfactory. LEAs keep their formulae under constant review, and most bring forward amendments every year. In practice it has proved impossible to devise a way of safeguarding basic principles of equity and objectivity without requiring the annual submission to the Secretary of State of large numbers of relatively trivial amendments. The distinction in sections 112-113 of the 1996 Act between significant variations and minor revisions - only the former require the Secretary of State's approval - has not in practice been of much assistance in streamlining the procedure, partly because the distinction is inherently difficult to define and partly because minor revisions must in any event be notified to the Secretary of State (and then require examination to check whether they are indeed "minor").

85.      The Bill accordingly seeks to replace the "consent regime" by a requirement for LEAs to comply with regulations. As in the case of the issues to be covered by regulations under clause 45, this will introduce a measure of Parliamentary scrutiny which has not hitherto applied in this area of policy. Given the complexity of the issues to be covered, and the need to reflect changing circumstances and priorities over time, regulations are clearly preferable to primary legislation as a medium for defining national requirements. The content of the first regulations will be determined only after full consultation: the use of regulations does not, of course, in itself necessarily imply a more prescriptive regime than exists at present.

86.      By virtue of section 494(3)-(4) of the Education Act 1996 and regulations made thereunder, LEAs' schemes must provide for certain adjustments to schools' funding, in respect of pupils permanently excluded. Schemes will no longer provide an appropriate vehicle for such adjustments, since they will no longer deal with the allocation of funding. It is therefore the intention - see subsection (2)(c) - that the regulations under clause 46 should include provisions corresponding to (although they need not be identical with) those of section 494(3)-(4) and the associated regulations. Subsection (3) makes explicit that the deduction from a school's budget share in respect of an excluded pupil may be greater or less than the amount allocated to another school which subsequently admits the pupil.

87.      Subsection (2)(g) allows the Secretary of State to make provision in the regulations enabling him to authorise LEAs to determine budget shares in accordance with arrangements agreed by him. Should such a provision be included in the regulations, it would be the intention to use it only in exceptional cases. It is envisaged that such cases would ordinarily involve making temporary special provision for individual schools whose circumstances are, for the time being, such that a strict application of the regulations would generate a paradoxically high or low level of funding.

  Clause 47: LEAs' financial schemes

88.      Subsection (1) requires each LEA to prepare a "scheme" - a document regulating key aspects of its financial relationship with the schools which it maintains - and empowers the Secretary of State to make regulations (S.I.: negative resolution) defining the issues to be covered in these schemes (which will require his approval by virtue of subsection (4) and Schedule 14). Subsection (2) lists some of the main issues likely to be specified in the regulations.

89.      By comparison with the schemes required under section 103 of the Education Act 1996, those required by clause 47 will be relatively narrow in scope: in particular, they will not deal with the matters which will in future be regulated under clauses 45 and 46 of the Bill. They will nevertheless deal with matters which are central to the concept of financial delegation, and Schedule 14 requires LEAs to have regard to the Secretary of State's guidance when preparing their schemes for submission. This guidance - which is likely to take the form of a "model scheme" - will indicate the nature of the provisions which the Secretary of State would wish LEAs to include in respect of the various issues. But there also seems to be advantage in establishing a statutory specification of the topics which ought to be included and - by implication - the topics which should not (some current schemes are significantly encumbered with material of doubtful relevance). Since any such specification is likely to require review, it would be inappropriate to attempt to include it on the face of the Bill.

  Clause 48: Maintained schools to have delegated budgets

90.      Subsection (4) enables the Secretary of State to make an order (not an S.I.) precluding a (former) GM or GM special school from receiving a delegated budget on the appointed day (as otherwise required by subsection (1)). Such an order may only be made if the Secretary of State considers that delegation would be inexpedient for reasons relating to the financial situation or financial management of the school. By virtue of subsection (5), an order under subsection (4) is to be treated as tantamount to a suspension of delegation by the LEA now maintaining the school: the suspension thus remains in force until lifted in accordance with Schedule 15.

91.      Subsection (4) provides a counterpart to subsection (2), which relates to schools maintained by LEAs prior to the appointed day, and provides for the continuation in force of suspensions current at the appointed day. It would be inappropriate to place LEAs under a duty to give a delegated budget to any and every former GM school regardless of its financial situation. But it would also seem inappropriate to allow the LEA itself to suspend delegation with effect from the appointed day, since such a decision would have to be taken on the basis of events occurring at a time when the LEA itself had no responsibility for the school.

92.      The power in subsection (4) - which is not expected to be invoked in more than a handful of cases - thus appears to provide the most appropriate safeguard. In general the Secretary of State would expect to make an order only on the advice of the Funding Agency for Schools, and after consulting the LEA and school: it would however be inadvisable for the Bill to specify this procedure (which might give rise to difficulty if a serious situation at a school were to come to light very shortly before the appointed day). On the basis that the Secretary of State's actions would be open to judicial review, it seems best to rely on his general duties to act reasonably and in accordance with natural justice.

  Clause 49: Effect of financial delegation

93.      Clause 49(3)(b) empowers the Secretary of State to make regulations (S.I.: negative resolution) authorising the use of a school's delegated budget for purposes which would not otherwise be permissible.

94.      As matters stand, a school's delegated budget may be used only "for the purposes of the school" (Education Act 1996 section 116(2), repeated in subsection (3)(a) of the present clause). In general this restriction is plainly appropriate, but it arguably creates undue complications for schools seeking to collaborate with other schools or services. Where pupils registered at one school attend another school for part of the week (a form of collaboration which can be particularly useful if the pupils have special educational needs or wish to study "minority" subjects), it would seem that the second school ought, strictly speaking, to take steps to recover the cost from the first school (on the basis that it cannot be within the purposes of one school to provide education for another school's pupils). The present restriction also requires schools to ensure that their budgets are not used to support non-school activities taking place on the premises of the school, even where there may in other respects be close collaboration between the school and the other provider (as in the case of certain forms of pre-school provision).

95.      Flexibility to amend these provisions in the light of experience will be necessary. It is therefore appropriate for this to be a matter for secondary legislation.

  Clause 64: Functions of the governing body in relation to excluded pupils

96.      Subsection (8) requires the governing body of a school to take the steps required of them under the provisions of subsections (1) to (7) within such period as may be prescribed in regulations made by the Secretary of State. This is intended principally to allow the Secretary of State to prescribe the period within which the governing body are to consider (under subsection (3)) whether to direct the head teacher to reinstate a pupil excluded permanently or for a lengthy fixed period.

97.      Subsection (8) would replace, with only minor changes, the provisions of paragraph 14 of Schedule 15 to the Education Act 1996. The regulations currently in force under that paragraph are the Education (Exclusion from Schools) (Prescribed Periods) Regulations 1994 (S.I. 1994/2093), which apply to county, voluntary and maintained special schools. (Similar provision for grant-maintained and grant-maintained special schools is made in their articles of government).

98.      Time limits under the 1994 regulations relate only to the consideration of permanent exclusions. Clause 64(8) would permit the Secretary of State also to impose time limits in which governing bodies must consider fixed period exclusions of more than five days. We intend the regulations to ensure that governors reach a speedy decision on whether or not to reinstate excluded pupils - so that they do not remain out of school for longer than necessary. This use of regulations by negative resolution will allow a degree of flexibility in designing and adjusting the time limits - and will avoid having unnecessary detail on the face of the Bill.

  Clause 66: Duty to secure due provision of religious education

99.      Subsection (3) states that a foundation or voluntary school has a religious character if it is designated as a school having such a character by an order (S.I.: no parliamentary procedure) made by the Secretary of State. Subsection (4) provides that the order shall state, in relation to each designated school, the religion or religious denomination in accordance with which religious education is to be provided at the school. Subsection (5) provides for regulations (S.I.: negative resolution) to specify the procedure for designation and for the inclusion in the order of the statement of the religion or religious denomination in accordance with which religious education is to be provided at the school.

100.      The regulations will set out how schools are to be designated. This will be a S.I. subject to negative resolution to allow scrutiny of the procedure that has been chosen. It is necessary to establish which schools have a religious character because the religious education provided in schools and arrangements for the appointment and dismissal of RE teachers will, of necessity, be affected by religious character. The designation of individual schools will be by order.

101.      The order will be a S.I. because the list of schools will be of interest to the wider public. As indicated by clause 124(4) of the Bill, it will not be subject to Parliamentary procedure.

102.      It is envisaged that separate regulations and a separate order will make equivalent provision for Wales to allow for a similar transfer of powers to that set out in paragraph 48 of this memorandum.

  Clause 68: Religious worship, exceptions and special agreements

103.      Subsection (7) requires the Secretary of State to make regulations (S.I.: negative resolution) which will secure that, so far as practicable, every pupil attending a community or foundation special school receives religious education and attends religious worship, or is withdrawn from religious education or worship at the request of his or her parents.

104.      This subsection re-enacts the provisions of section 342(6) of the Education Act 1996 which currently applies to all special schools, both maintained and non-maintained (see the Education (Special Schools) regulations 1994: S.I. 1994/652). Schedule 29 to the Bill amends section 342, so that in future it will apply only to non-maintained special schools. Clause 67(7) relates only to community and foundation special schools.

  Clause 69: Provision for new schools

105.      Regulations under clause 69 (1) may make provision for the staffing and conduct of a new school in advance of the school opening date; the determination of matters in connection with a new school; the taking of decisions by a temporary governing body or (where power to do so is delegated to him) by the head teacher where the temporary governing body does not have a delegated budget for the school and such other matters relating to new schools as the Secretary of State considers appropriate. Under subsection (2), these regulations may apply any provision of the Education Acts with or without modification. These are matters of detail which may require revision, and which are appropriate to be dealt with by regulation.


 
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