CLAUSE BY CLAUSE ANALYSIS
OF DELEGATED POWERS (Clauses 70 - 126)
Clause 70: Transfer of
staff on the appointed day
(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
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
(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.
(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
(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
Clause 79: Admissions
Code of Practice
(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
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
Clause 84: Procedure
for determining admission arrangements
(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.
(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.
(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.
(6) contains a similar power to prescribe cases excluded from
the requirement to notify an in-year variation of arrangements.
(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
Clause 85: Referral of
objections to the adjudicator
(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.
(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.
(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
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.
(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).
(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
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:
(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.
(2) provides for regulations to prescribe the content of the
admissions information governing bodies of foundation and voluntary
aided schools are required to publish.
(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
(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
review (as required under paragraph 11 of Schedule 23)
standard numbers applicable to admissions to infant classes in
maintained schools; and
apply (under paragraph 4(4) or 8(4) of Schedule 23) for
a reduction in any standard number;
the imposition of infant class size limits under clause 1 of the
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
(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
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
(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.
(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
(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
(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
(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
(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
(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
Clause 104: Supplementary
provisions about home-school agreements
(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
(3) provides that orders under subsection (2) may apply:
a particular school, or
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
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.
(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
Clause 107: Nutritional
standards for school lunches
(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
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
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
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
113(1)(b) gives the Secretary of State power by regulations
to determine how frequently Early Years Development Plans should
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
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
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:
provide financial assistance to schools not maintained by LEAs
("non-maintained schools"); or
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:
or expenses payable in connection with the attendance of a pupil
at a non-maintained school; or
other matters as may be prescribed;
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)
will set out the circumstances under which LEAs might be permitted
to pay fees or expenses in respect of pupils attending non-maintained
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.
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
(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
(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
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.