Select Committee on Delegated Powers and Deregulation Seventeenth Report

ANNEX (continued)


  Clause 70: Transfer of staff on the appointed day

106.      Subsection (2)(b) enables the Secretary of State to make an order designating a person employed by an LEA who works at a school, but not solely at that school. This is to allow the staff transfer provisions to apply to such a designated person when schools change category on the appointed day. It is not necessary to subject such an order to parliamentary procedure.

  Clause 75: Provision of further education in maintained schools

107.      Clause 75 restates, in the context of the new school framework, existing provisions enabling schools to provide further education. Subsection (2) restates the duty on governing bodies to ensure that where further education is provided, it must not be in a classroom with school pupils. This is intended to ensure the safety of school pupils while at the same time not unduly fettering the discretion of governing bodies to provide further education. It represents a continuation of current safeguards, and existing regulations (see the Education (Further Education in Schools) Regulations 1993: S.I. 1993/1987) will remain in force.

  Clause 76: Application of employment law during delegation

108.      Subsection (1) gives the Secretary of State power to make an order to enable modifications to be made to employment legislation where this would be appropriate in view of the powers and duties laid on governing bodies under the Bill in schools where the LEA employs the staff. For example, the governing body of a community, voluntary controlled or community special school with financial delegation will be able to require the LEA to give notice of dismissal to a person employed to work solely at the school. In such a case it would be right that the governing body should appear before an Industrial Tribunal to defend its action if the dismissed member of staff complains of unfair dismissal.

109.      Subsection (1) reproduces the order making power in section 178 of the Education Act 1996. This order making power is subject to negative resolution (see the Education (Modification of Enactments Relating to Employment) order 1989: S.I. 1989/901) .

  Clause 77: Modification of trust deeds

110.      Subsections (1) to (3) allow the Secretary of State by order (not S.I.) to modify the trust deed of a school which is or is to become a foundation, voluntary or a foundation special school. This will be necessary where any provision in the trust deed is incompatible with any requirement for schools in a particular legal category (e.g. in relation to composition of the governing body). Modifications to trust deeds will be specific to individual schools, so it is therefore appropriate for them to be made by orders which are not S.I.s.

  Clause 79: Admissions Code of Practice

111.      Subsection (1) requires the Secretary of State to issue a Code of Practice containing practical guidance to which LEAs, the governing bodies of maintained schools, the adjudicator and appeal panels must have regard in carrying out their functions relating to admissions. The Code may include guidelines setting out aims, objectives and other matters on the discharge of their functions by the first two of these types of body. The Secretary of State is empowered to revise the Code from time to time. Separate guidance, or a separate Code, may be issued relating to Wales.

  Clause 80: Making and approval of Code of Practice

112.      Clause 80 places a specific requirement to consult on the Secretary of State and provides for Parliamentary scrutiny with regard to the making and approval of the Code of Practice. The Secretary of State is required to prepare the Code in draft, to consult persons whom he thinks fit and to consider their representations. The Code is subject to negative resolution, which reflects the procedure followed for a number of other Codes includes those on Race Relations, Sex Discrimination and Disability. If passed, the Secretary of State may by order appoint the date on which it is to come into force (S.I. no Parliamentary procedure).

113.      The Code of Practice will contain practical guidance and additional guidelines, which are not legislative in nature. The only duty placed upon the bodies mentioned above is, by section 79(3), to have regard to the provisions of the Code. The Code is likely to offer guidance on such matters as determining a school's admission arrangements and the consultation process and publication of those admission arrangements.

  Clause 84: Procedure for determining admission arrangements

114.      Subsection (2) identifies the bodies whom an admission authority must consult about its proposed admission arrangements. By paragraph (b) these include the admission authorities for all other maintained schools in "the relevant area" (see below), or a prescribed class of such schools (S.I.: negative procedure). The intention is to have power to avoid requiring consultation of bodies whose views are of little relevance, e.g. perhaps to limit consultation by primary schools to other primary schools. In paragraph (c) there is a power to prescribe descriptions of other maintained schools whose admission authorities must be consulted (S.I.: negative procedure). This is necessary to require consultation, in appropriate cases, of schools outside "the relevant area" where this would be desirable.

115.      Subsection (3) defines "the relevant area" as the area of the LEA or some other area determined by or in accordance with regulations (S.I.: negative procedure). There will be cases (for example in inner London) where it would be unhelpful to divide the consultation process rigidly along local authority borders and this power enables appropriate provision to be made.

116.      Subsection (4) includes a requirement for an admission authority to notify the bodies it has consulted of its admissions arrangements once finally determined, except in prescribed cases (S.I.: negative procedure). The most likely case is where it received no comment or criticism on the draft arrangements and notification would serve no purpose.

117.      Subsection (6) contains a similar power to prescribe cases excluded from the requirement to notify an in-year variation of arrangements.

118.      Subsection (8) enables the Secretary of State by regulations (S.I.: negative procedure) to make such further provision in connection with the determination or variation of admission arrangements under this clause as he thinks fit. This includes power to make provision for the matters to which consultation should relate, the timing of consultation and the manner and timing of required notification. These regulations will contain matters of detail which are more appropriate to be set out in regulations rather than in primary legislation.

  Clause 85: Referral of objections to the adjudicator

119.      Subsection (1) enables an admission authority which has been consulted about a school's admission arrangements to make an objection to the adjudicator against the arrangements, but by paragraph (c) this course is not available for objections of a prescribed description (S.I.: negative procedure). One example that might be prescribed is an objection which, if upheld, would require the school to make a "prescribed alteration" under clause 30, or an objection to a provision in the school's admission arrangements which reflects a prescribed alteration recently made in accordance with that clause.

120.      Subsection (2) requires the adjudicator to refer the objection to the Secretary of State for decision in prescribed cases (S.I.: negative procedure). Under subsection (8) the cases to be prescribed must include cases concerned with admissions criteria relating to a person's religion or religious denomination. This power enables the Secretary of State to stipulate types of case where it would be more appropriate for the decision to be made by him. These might, for example, be types of case which he considers to have a high level of general importance.

121.      Subsection (7) empowers the Secretary of State to make regulations (S.I.: negative procedure) making provision for: conditions to be met before an objection may be referred; steps an admission authority can take between referral of an objection and the decision; publishing decisions; notification of matters to persons as prescribed; placing a time limit on the period after an objection has been decided within which a `repeat' objection can be made; and prescribing cases when an admission authority (not necessarily the authority against which the objection was made) may revise its admission arrangements after the determination of an objection. These regulations will contain matters of detail which are more appropriate to be set out in regulations rather than in primary legislation.

122.      A separate power in Schedule 5 enables the Secretary of State to make regulations covering referrals to and determinations by the adjudicator. This is addressed in paragraphs 188-189 of this memorandum.

  Clause 86: Preserving the religious character of a foundation or voluntary aided school

123.      Clause 86 restates current provision for voluntary-aided schools with a religious character to make, with the LEA's agreement, special admission arrangements to preserve the school's character; and extends the provisions to denominational foundation schools; and makes any special arrangements fully compatible with the new framework in clauses 84 and 85.

124.      Subsection (4) requires, where proposed special arrangements are referred to the adjudicator, that he refer them to the Secretary of State for decision in prescribed cases (S.I.: negative procedure). This power mirrors that in clause 85(2).

125.      Subsection (9) provides that regulations made under clause 85(2)(b) and (7) will apply with any prescribed modifications to references and objections made under this clause.

  Clause 87: Publishing admissions information

126.      Clause 87 sets out the requirements for the publication of information by LEAs and school governing bodies. The clause carries forward several regulation-making powers from existing legislation (section 414 of the Education Act 1996). All the powers in this clause are by regulations (S.I.: negative procedure). These regulations will contain detailed provisions unsuited to primary legislation, an approach which follows that of section 414 (currently exercised in the Education (School Information) (England) Regulations 1996: S.I. 1996/2585).

127.      Subsection (1) provides for regulations to prescribe the information LEAs are required to publish about admissions arrangements within their area. Regulations may also provide for LEAs to publish details of admission arrangements for schools outside their area.

128.      Subsection (2) provides for regulations to prescribe the content of the admissions information governing bodies of foundation and voluntary aided schools are required to publish.

129.      Subsections (3)(a) and (6) re-enact provisions from section 414 of the Education Act 1996 which provide for regulations to prescribe the content of the admissions information governing bodies of schools maintained by local authorities are required to publish.

  Clause 88: Fixing admission numbers

130.      Subsection (8) allows the Secretary of State to make regulations providing for the suspension of clauses 81(5) and 88(1) to such extent as he considers appropriate for the purpose of enabling admission authorities:

        a.    to review (as required under paragraph 11 of Schedule 23) standard numbers applicable to admissions to infant classes in maintained schools; and

        b.    to apply (under paragraph 4(4) or 8(4) of Schedule 23) for a reduction in any standard number;

        following the imposition of infant class size limits under clause 1 of the Bill.

131.      The use of regulations will allow the Secretary of State to consult admission authorities as regards the period and the terms of the suspension of clauses 81(5) and 88(1). He would also wish to have flexibility to revise the regulations in the event of any future variation in class size limits, and to provide for the suspension to operate differently in respect of different types of school or even different age groups. It would be more appropriate to provide for details such as these in regulations (subject to negative resolution) rather than on the face of the Bill.

Clause 93: Admission of pupils to maintained special schools

132.      Subsection (5) allows the Secretary of State to make regulations (S.I.: negative resolution) governing the arrangements for the admission of pupils to foundation and community special schools. The majority of pupils admitted to special schools will be expected to have statements of special educational needs naming the school they attend. Parents will be able to appeal to the SEN Tribunal when they are unhappy about the school that has been named in their child's statement. Once a school is named in a statement governors are under a duty to admit the child.

133.      In some special schools there may be a small minority of pupils admitted without a statement, for example those undergoing a formal assessment. There may be others who have statements naming another school, for example pupils who have moved from one LEA area to another. Regulations will be able to provide for the circumstances in which such admissions may be made and the responsibilities of LEAs and governing bodies in relation to the admissions arrangements.

134.      It is proposed that all these issues should be covered in one set of regulations. The use of regulations by negative resolution is thought appropriate as the regulations will cover detailed provisions and may, in particular as regards admissions, need to be adjusted from time to time.

135.      For admissions a regulation making power will enable further consultation to take place on the detail of the arrangements and the responsibilities of LEAs and governors.

  Clause 97: Selection by subject aptitude

136.      Clause 97(1) enables schools to admit pupils on the basis of their aptitude for one or more prescribed subjects, where the admission authority is satisfied that the school has a specialism in one or more of the prescribed subjects, and no more than 10% of pupils are admitted under this provision in any normal year of entry.

137.      The regulations specifying the subjects will be made by S.I., subject to negative resolution. In the Department's view it is more appropriate for the subjects to be set out in regulations, rather than primary legislation, since this will afford the flexibility to amend the list of subjects in the light of experience.

  Clause 99: Designation of grammar schools

138.      Subsection (1) enables the Secretary of State to make an order designating as grammar schools those schools he considers to have had selective admission arrangements (as defined in subsections (2 and 3)) at the start of the 1997-8 school year. This is to define those schools for which the provisions in clauses 100-102 will apply. Orders under clause 99 are not subject to any Parliamentary procedure.

139.      Subsection (5) enables the Secretary of State by order to add a school to the list of designated grammar schools where that school replaces one or more discontinued grammar schools, and for relevant statutory provisions to be modified as necessary. Since the modifications will be detailed, it is an appropriate subject for regulation.

  Clause 100: Procedure for deciding whether grammar schools should retain selective admission arrangements

140.      Subsection (1) enables the Secretary of State to make regulations providing for ballots of parents to be held, at parents' request, on whether grammar schools should retain selective admission arrangements. Ballots under these regulations may relate to all grammar schools within an LEA area, or to prescribed groups of grammar schools, or to an individual grammar school. The clause sets out in some detail what the regulations may include.

141.      The regulations will set out which parents are eligible to request and vote in a ballot; require a request for a ballot to be made by a petition, and specify the number of parents who will need to sign the petition or petitions; and may prescribe the form of petition and procedural or other requirements. Regulations may also designate a body to receive the petition, administer the arrangements for holding a ballot, and perform other functions (which may include determining validity of petitions or eligibility to petition or vote). The regulations can also require people or organisations to provide any prescribed information to the designated body, or to publish prescribed information; prescribe the terms of the ballot question and means of carrying out and ascertaining the result of the ballot. The regulations will also enable the Secretary of State in prescribed circumstances to declare a ballot void and require a fresh ballot to be held. They can lay down timescales for any aspects of implementation and contain various supplementary provisions.

142.      These regulations will contain a great deal of detail setting out how petitions and ballots will work, and it is not considered appropriate to put this level of detail in primary legislation.

  Clause 101: Implementation of decision that school should cease to have selective admission arrangements

143.      Subsection (2) enables regulations subject to negative resolution to prescribe in which school year a school which has been the subject of a ballot in favour of change needs to cease having selective admission arrangements. This is a matter of detail which will depend on the timing of ballots in relation to the stage which has been reached in the school year and the admissions arrangements cycle and, as such, is appropriate for regulations.

  Clause 102: Proposals by governing body of grammar school to end selective admission arrangements

144.      Subsection (3) enables regulations subject to negative resolution to provide for modifications to any provision of clause 27 or Schedule 6 in the case of alteration of grammar schools' selective admission arrangements. This power could be used, for example, to ensure that an LEA will be under a duty to implement non-selective proposals published by a governing body of a community school (which would not normally have the power to publish proposals in its own right) and approved by the school organisation committee or adjudicator. Regulations can also set down circumstances in which statutory proposals published under clause 27 will not have effect if a petition under clause 100 has been received, so as to ensure that the two mechanisms for ending selective admissions cannot be pursued in parallel.

145.      Subsection (4) enables regulations to provide for disregarding a governing body's proposals to change a grammar school's selective arrangements if that school is already subject to implementation of a parental ballot in favour of such a change.

146.      These regulations are necessary because of the need to adapt the normal statutory proposals procedures to proposals to end grammar school selection arrangements. The regulations will also determine any possible conflict between a ballot and statutory proposals. It is not considered suitable to put this level of detail in primary legislation.

  Clause 103: Home-school agreements

147.      Subsection (10) provides for the Secretary of State to determine by order the "relevant date". The relevant date will be the date on which schools must have a home school agreement in place. An order appointing the relevant date, which will be of general application, will have to be made by S.I. but it will not be subject to any Parliamentary procedure. But a decision to appoint a different date in respect of a particular school will not have to be made by S.I. as it will be of purely local application.

148.      The Secretary of State would wish to consult schools and other interested parties before making an order appointing the relevant date. It would therefore not be appropriate for this date to appear on the face of the Bill. Nor is it considered appropriate for an order which simply specifies a date to be subject to any type of Parliamentary procedure.

  Clause 104: Supplementary provisions about home-school agreements

149.      Subsection (2) enables the Secretary of State by order to prohibit governing bodies from using certain forms of words, or words which have a particular effect, in a home-school agreement or in a parental declaration. This is intended as a reserve power to safeguard against the inclusion in home-school agreements or parental declarations of provisions which the Secretary of State considers to be unfair or unreasonable, particularly in terms of the obligations which they seek to place on parents. An example might be a provision requiring parents to contribute regularly to a school fund. Other types of objectionable terms may be brought to the attention of the Secretary of State once governing bodies start to prepare home-school agreements.

150.      Subsection (3) provides that orders under subsection (2) may apply:

        a.    to a particular school, or

        b.    to any description of a school (e.g. all primary schools).

151.      An order under subsection (3)(b) would be of general application - and so would have to be made by S.I. subject to negative resolution. However an order under subsection (3)(a) would not be made by S.I.. It is considered that this would be inappropriate given that such an order would be of local application only. This follows the precedent of subsections (4) and (5) of section 413A of the Education Act 1996 (to be inserted by section 13 of the Education Act 1997), which made provision for "home-school partnership documents" to be used as part of a school's admission process. Section 413A has not been brought into force, and Schedule 29 to the Bill provides for its repeal.

  Clause 106: Provision of secondary education for Key Stage 4 pupils by further education institutions

152.      Clause 106 enables FE colleges to provide secondary education for Key Stage 4 pupils. The clause makes clear that `the governing body.... shall secure that, except in circumstances prescribed by regulations, no further education is provided in a room in which any such pupils are for the time being receiving secondary education'. There may be concern about pupils being regularly present in what may often be a mainly adult environment. There could be circumstances, however, where it may be necessary for Key Stage 4 pupils to be educated in the same room as further education students and regulations would specify the circumstances in which this would be possible.

153.      Regulations (The Education (Further Education in Schools) Regulations 1993: S.I. 1993/1987) already prescribe the circumstances under which schools can provide further education in rooms where pupils are being taught. We envisage that, in parallel, the regulations concerning the safety of Key Stage 4 pupils receiving secondary education in a further education institution would specify that a teacher should be present if such pupils were being educated in the same room as further education students. To provide the necessary flexibility to deal with changing circumstances, it is considered appropriate that the detail of the exceptional cases should be addressed in regulations.

  Clause 107: Nutritional standards for school lunches

154.      Subsection (1) enables the Secretary of State to make regulations, which will be made by S.I. subject to negative resolution, setting out nutritional standards or other nutritional requirements for school lunches provided for registered pupils at maintained schools. The standards will be compulsory, subject to any exceptions provided for by or under the regulations. Subsection (4)(a) enables the regulations to make different provision for pupils of different ages and subsection (4)(b) provides that regulations may authorise the Secretary of State to determine the time from which they are to apply to a particular LEA or school. Subsection (5) enables the regulations to define the term `school lunch'.

155.      It is appropriate for the details of the nutritional standards and other nutritional requirements to be set out in regulations. Secondary legislation will afford the necessary flexibility for them to be updated from time to time in line with research into the health and diets of children and young people and developments in nutritional science.

156.      The power in subsection (4)(b) is needed because LEAs and schools may have contracts for the provision of school meals. It may be desirable for the regulations only to apply to a particular LEAs or school after an existing contract has come to an end.

  Clause 109: Transfer of school lunch and milk duties to governing bodies

157.      Clause 109 inserts a new section 512A into the Education Act 1996. This section provides for orders (SI: negative resolution by virtue of section 568 of the 1996 Act) to be made which transfer to school governing bodies the LEA duties to provide school lunches on request; to provide free school lunches to those qualifying; and to provide free milk. The new provision will be inserted into section 512 of the Education Act 1996 as amended by clause 108. The orders can apply to LEAs and schools generally, or particular LEAs and types of school.

158.      The Government is to consult on the delegation of funding for school meals and milk to schools. If such delegation proceeds, it would need to be accompanied by a transfer of relevant statutory duties if governing bodies were to have any real freedom in managing the budget. Because GM schools already have equivalent duties insofar as they exist under present legislation, because there is a wide variety of existing contractual arrangements for school meals, and because delegation may be thought appropriate for some schools before others, flexibility will be needed in transferring duties to governing bodies: the number of orders which will be necessary, and their timing, cannot be predicted at this stage. These uncertainties make it appropriate to enable the transfer by delegated powers.

  Clause 111: General duty on an LEA to provide nursery education

159.      Clause 111(1)(b) gives the Secretary of State power to prescribe the lower age limit of children for whom LEAs have a duty to secure nursery education. The age prescribed will initially be four years. It is appropriate for the lower age limit to be prescribed by order so that the duty can be extended to younger children if appropriate in time.

  Clause 112: Early years development partnerships

160.      Clause 112(6) gives the Secretary of State power by order to confer additional functions on early years development partnerships. An example of such an extension would be to enable the partnership to assist with securing the involvement of a qualified teacher in every nursery setting. This desirable flexibility is appropriately addressed in subordinate legislation.

  Clause 113: Early years development plans

161.      Clause 113(1)(b) gives the Secretary of State power by regulations to determine how frequently Early Years Development Plans should be prepared.

162.      Clause 113(3)(a) gives the Secretary of State power by regulations to determine the matters and period which must be covered by Early Years Development Plans.

163.      The purpose of these provisions is to allow the Secretary of State to determine key aspects of the nature of Early Years Development Plans which will be detailed and may change over time.

  Clause 114: Approval, modification and review of statement of proposals

164.      Clause 114(1) gives the Secretary of State power by regulations to set a date by which Early Years Development Plans must be submitted to him for approval. The purpose of this provision is to allow the Secretary of State to control the timing of the approval process for Early Years Development Plans.

165.      It is appropriate for this to be done via regulations subject to the negative resolution procedure as the date may change from year to year.

  Clause 120: Restrictions on financial assistance to non-maintained schools

166.      Clause 120 provides for the repeal of section 16(1)(c) of the Education Act 1996, and the substitution of a new section 18 of that Act. It is designed to restrict the power of LEAs currently enjoyed under the 1996 Act:

        a.    to provide financial assistance to schools not maintained by LEAs ("non-maintained schools"); or

        b.    to make arrangements for pupils to be provided with primary or secondary education at such schools.

167.      New section 18(2) would prevent an LEA from making any grant or other payment (whether to the proprietor of a non-maintained school or to any other person) in respect of:

        a.    fees or expenses payable in connection with the attendance of a pupil at a non-maintained school; or

        b.    such other matters as may be prescribed;

        except in such circumstances as may be permitted in regulations.

168.      The intention of the provision is to prevent LEAs from establishing local versions of the Assisted Places Scheme, abolished by the Education (Schools) Act 1997.

169.      Regulations will set out the circumstances under which LEAs might be permitted to pay fees or expenses in respect of pupils attending non-maintained schools.

170.      New section 18(3)(a) would allow regulations to specify the circumstances in which LEAs have a duty to pay fees for a pupil attending a non-maintained school, and the circumstances in which they have discretion to pay fees to a non-maintained school. These provisions are designed partly to replicate the effect of sections 517 and 518(b) of the 1996 Act, which are to be repealed by Schedules 29 and 30 to the Bill.

171.      Regulations under new section 18(2) and (3) will be the subject of widespread consultation. They will also need to be informed by representations from independent and maintained schools for support to develop partnerships between the two sectors. The regulations may need to be amended as new proposals for partnerships are brought forward, and the Department believes therefore that the negative resolution procedure is appropriate.

  Clause 122: Dissolution of the Funding Agency for Schools

172.      Subsection (1) enables the Secretary of State by order to dissolve the Funding Agency for Schools and set the date on which it will be dissolved. The exact date upon which the Funding Agency for Schools will be dissolved has yet to be determined. This enabling power will permit the Secretary of State to decide the appropriate time for dissolution taking into account factors such as the final date for the implementation of the new funding arrangements and framework for schools. It is therefore considered appropriate for this to be dealt with by negative resolution.

  Clause 126: Change of name of Education Assets Board

173.      Subsection (3) enables the Secretary of State by order to change the name of the Education Transfers Council and to make such other provision as is necessary or expedient in consequence of the change of name.

174.      This regulation making power by negative resolution has been used to allow the Secretary of State flexibility to change the name of the Education Transfers Council if this should seem appropriate in the light of experience or in the case of changes in the nature of the workload.

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