Select Committee on Delegated Powers and Deregulation Seventeenth Report


ANNEX (continued)

  CLAUSE BY CLAUSE ANALYSIS OF DELEGATED POWERS (Clause 132)

  Clause 132: Transitional Provisions

175.      Clause 132 provides a well precedented power for the Secretary of State to make incidental, consequential, transitional or supplementary provision to allow the orderly implementation of the Bill. It allows for necessary modifications to existing statutory provisions and for associated savings. Such matters are appropriately dealt with in subordinate legislation.

  Schedule 1: Provisions relating to an Education Action Forum

176.      Paragraph (4) allows for regulations regarding the meetings and proceedings of an Education Action Forum.

177.      It is likely that they will cover issues such as:

        a.    the requirement for a meeting to be quorate;

        b.    voting rights of external members of delegated committees;

        c.    a requirement to keep records of meetings;

        d.    public access to minutes; and

        e.    a requirement to draw up a register of members' interests.

178.      These are very detailed matters. The Secretary of State will need the flexibility to provide for them without resorting to changes in primary legislation. It is considered that regulations subject to negative are an appropriate manner in which to address the points of detail.

179.      It is important to note that the regulations under Schedule 1 cover only the requirements on an Action Forum before it assumes any formal governance functions. If powers under clause 12(2)(b) are used, a much fuller set of requirements will apply, to be made under regulations discussed there (paragraph 33 of this paper).

  Schedule 2: Allocation of existing schools to new categories

180.      Paragraphs (4) to (6) enable the Secretary of State to make regulations (S.I.: negative resolution) in connection with the procedure by which grant-maintained and grant-maintained special schools are allocated to new categories. The regulations will include the duties on governing bodies to:

        a.    consult before taking decisions;

        b.    notify decisions and provide other prescribed information; and

        c.    certify specified matters when providing notification;

        and the times by which these should take place.

181.      The Secretary of State will also be able to make regulations about the circumstances in which a ballot of parents can be held, how the result of the ballot should be determined and when a ballot can be declared void and re-run.

182.      These regulations will define some of the finer details of procedures which a limited number of schools will be required to follow only once. The timetable schools must follow will be dependent on the timing of Royal Assent. It is therefore appropriate to deal with all this detail in regulations (subject to negative resolution) rather than in primary legislation.

183.      Paragraph (8) enables regulations (S.I.: negative resolution) to be made prohibiting a school from being allocated to specified new categories by the Secretary of State or to be allocated only if certain conditions are met. The regulations will deal with the technical conditions which schools must satisfy, for example in relation to the transfer of land set out in Schedule 21. These details are appropriate to secondary legislation, subject to negative resolution.

184.      Paragraph (10) allows the Secretary of State to make regulations (S.I.: negative resolution) for transitional arrangements for grant-maintained and grant-maintained special schools which have not had their final category determined by the appointed day and for any school which is in the process of opening or closing. These regulations will deal with technical details affecting a small number of schools. It does not seem appropriate to deal with these in primary legislation.

  Schedule 3: Funding of foundation, voluntary and foundation special schools

185.      Paragraph (5) gives the Secretary of State the power to make grants to the governing body of voluntary aided schools. Subparagraph 3(b) enables the Secretary of State to make regulations which, in certain specified circumstances, determine the actual amount of grant. Paragraph 5(3)(b) of Schedule 3 re-enacts provisions in section 65(3)(b) of the Education Act 1996.

186.      It is currently expected, in order to secure value for money from the investment of public funds, that the regulations will introduce a regime whereby the proceeds of sale of property replaced by, or released as a consequence of, certain building projects attracting grant aid must be taken into account in determining grant. The inter-relationship between land disposals by charitable trustees and the determination of grant entitlement is complex and regulations subject to negative resolution procedure offer an appropriate vehicle for determining grant in the light of this inter-relationship. Regulations also provide the flexibility to change the arrangements more easily in the light of experience.

  Schedule 4: School organisation committees

187.      Paragraph (2) provides for regulations to cover appointment and tenure of members and the election of the chair and vice-chair of the school organisation committee. Paragraph (4) provides for regulations to cover the proceedings, including in particular technical details of the means of voting. Regulations subject to negative resolution are the appropriate manner in which to cover procedural and administrative matters.

  Schedule 5: Adjudicators

188.      Paragraph (5) provides for regulations to govern the procedure by which matters are referred to the adjudicator and the procedure to be followed by the adjudicator in respect of issues under both Part II (school organisation) and Part III (admissions) of the Bill. The procedure will require that in the event that local agreement is not reached, whether within the School Organisation Committee or during local consultation on admissions arrangements, papers are to be passed to the Adjudicator. Regulations might also establish a timetable in which a decision ought to be reached (allowing for differing complexities of particular cases).

189.      We would expect the Adjudicator to consider most cases on paper. But paragraph 5(2) also provides that in particular, regulations can authorise adjudicators to hold local inquiries and prescribe the procedure to be followed at local inquiries. We expect that local inquiries would occur relatively rarely, though in particularly contentious cases it is right for the adjudicator to have the option of deciding to hold an inquiry. Paragraph 9(1) of Schedule 7 requires the Adjudicator to hold a local inquiry on any proposals published by the Secretary of State and any related proposals. Again, regulations subject to negative resolution will be helpful because they will cover procedural and administrative matters while retaining a degree of flexibility.

  Schedule 6: Statutory proposals procedure and implementation

190.      The matters covered by Schedule 6 are generally procedural and are, therefore, appropriate for regulations by negative resolution. The flexibility afforded will also allow further consultation and possible change in the light of experience of the new system. Regulations made under this Schedule will prescribe:

        a.    the period in which objections to statutory proposals must be made, and, for LEA proposals, a period within which the LEA must send these objections together with any comments on them to the School Organisation Committee (paragraph (2)(2));

        b.    who should be consulted about a modification to a statutory proposal (paragraph 3(2)(c));

        c.    events that may be specified in approvals, which must occur if approval is to take effect (paragraph 3(3)) - such as the purchase of a particular site;

        d.    how the date of publication of statutory proposals should be determined (paragraph 4(2));

        e.    who may request modifications to statutory proposals and who should be consulted about such modifications (paragraph 5(2));

        f.    the procedures which apply to the removal of the duty to implement an approved statutory proposal (paragraph 5(4)).



191.      Part II of the Schedule, provides for the operation of these provisions in Wales. Specifically, the Secretary of State may prescribe:

        a.    the period in which objections must be made, and for LEA proposals, the period within which the LEA must send these objections together with any comments on them to him (paragraph 7(2)).

        b.    those who must be consulted about a modification to a statutory proposal (Paragraph 8(2)(c)).

        c.    those who may request modifications to statutory proposals and who should be consulted about such modifications (Paragraph 10(2)).

        d.    the procedures which apply in relation to the publication and approval of proposals to remove the duty to implement approved statutory proposals (Paragraph 10(4)).

  Schedule 7: Rationalisation of school places

192.      Schedule 7 contains regulation making powers which are similar to those in Schedule 6. Again the matters are generally procedural and therefore appropriate for regulations subject to negative resolution. In the same way as for Schedule 6 the flexibility afforded will also allow further consultation and possible change in the light of experience of the new system.

193.      Paragraph 2(5)(b) of Part II requires that where the Secretary of State has made an order directing an LEA or governing body to exercise their powers to publish statutory proposals in order to remedy an excess of school places in the area, a copy of the published proposals and such further information in connection with the proposals as may be prescribed, shall be sent to the Secretary of State. This requirement is necessary since, under the devolved procedures, statutory proposals would normally be sent only to the School Organisation Committee for the area.

194.      Paragraph 3(5)(b) mirrors 2(5)(b) but in respect of an insufficiency of school places.

195.      Paragraph 5(2)(a) and (b) of Part III requires any proposals made by the Secretary of State himself following a direction to an LEA to contain such information and be published in such manner as may be prescribed. These provisions mirror those in clause 27(3)(a) and (b) which apply to proposals published by LEAs and governing bodies.

196.      Paragraph 7(2)(b) of Part IV requires objections to proposals by the Secretary of State to be sent to the School Organisation Committee within such period as may be prescribed. This mirrors paragraph 2(2) of Schedule 6 which applies to proposals made by LEAs and governing bodies.

197.      Paragraphs 8(3) and 9(4) mirror paragraph 3(3) of Schedule 6 and again enable the Secretary of State to make regulations to prescribe events that may be specified in an approval given by the school organisation committee or the adjudicator which must occur if an approval is to take effect.

198.      Paragraph 9(4) mirrors 8(3) but in respect of approvals by the adjudicator. The agreement of the Secretary of State is not required to any conditions specified.

199.      Paragraph 12(2)(b) of Part V requires objections to proposals by the Secretary of State for Wales to be sent to him within such period as may be prescribed. This mirrors paragraph 7(2) of Schedule 6 which applies to proposals made by LEAs and governing bodies. It is necessary in order to contain procedures within reasonable time-limits.

  Schedule 8: Changes of category of school

200.      Paragraph (2) enables the Secretary of State to make regulations providing for the provisions of clauses 27 and 30 and Parts I and II of Schedule 6 to have effect in relation to proposals for change of category with or without modifications. The use of negative resolution regulations in these cases avoids the need to repeat a large amount of procedural detail on the face of the legislation, while ensuring that there is flexibility to adjust provisions in the light of experience.

201.      Paragraph (3) provides that regulations may prevent a school of any description from changing category unless such conditions are satisfied as are so specified. This regulation making power is necessary to ensure that the conditions on changes of category can be fine-tuned in the light of experience.

202.      Paragraph (4) enables the Secretary of State to make regulations with respect to the implementation of proposals including giving effect to the provisions relating to the transfer of land and making changes to the school's instrument of government and the governing body when a school changes category. The use of regulations here avoids a large amount of technical detail on the face of the legislation and ensures that provisions for the change of category of schools can be adjusted in the light of experience of their operation.

203.      Powers to make orders are also taken in Schedule 5 paragraph 5(4) and Schedule 7 paragraph 2(2) and 3(2). Neither of these powers to make orders are exercisable by S.I.. The orders under Schedule 5 are orders for costs at public inquiries; the orders under Schedule 7 are orders directing LEAs to bring forward proposals either to remedy an excess of school places or an insufficiency of school places in an area. In the Department's view these order making powers are not powers of a legislative character.

  Schedule 9: Constitution of governing bodies

204.      Schedule 9 provides regulation making powers in relation to the constitution of governing bodies. The regulations allow the Secretary of State to prescribe:

        a.    the procedure a governing body should adopt when appointing parent governors (paragraph 4(b));

        b.    which partnership governors must be nominated and appointed (paragraph (5));

        c.    the number of co-opted governors, in addition to those specified in paragraphs (9) to (14) of Schedule 9, the circumstances in which additional appointments should or can be made and who may make nominations for such appointments (paragraph (15));

        d.    the appointment of foundation governors to act in place of ex officio foundation governors in specified circumstances (paragraph (16)); and

        e.    the removal of excess governors (except foundation governors) where that excess is not eliminated by the appropriate number resigning (paragraph (17)).

205.      The detailed and technical nature of the proposed provisions makes them more appropriate to regulations than to primary legislation. The use of regulations would also allow the Government further time to consult, to take account of the views and experience of those who will operate under them. The Government envisages that they will be subject to wide consultation by practitioners, and it is therefore appropriate for negative resolution procedure to be used.

  Schedule 10: Incorporation and powers

206.      Schedule 10 provides for some transitional regulation making powers enabling governing bodies to be reconstituted ready for the appointed day. It includes regulation making powers relating to governing bodies which have not been reconstituted by the appointed day or where a grouped governing body will be required to degroup.

207.      Paragraph 1(2)(b) provides that the governing body, other than that for a grouped school, shall continue as a body corporate from the appointed day but that its constitution shall from then conform with the new requirements (subject to regulations under subparagraph (4)).

208.      Paragraph 1(3) provides that each governing body must (subject to regulations under subparagraph (4)) be reconstituted under an instrument of government by the appointed day; and allows the Secretary of State to make such provision as he considers necessary or expedient in connection with the reconstitution of the governing body.

209.      Paragraph 1(4) allows for cases where the instrument of government is not made by the appointed day; or the governing body is not reconstituted by that day. It allows the Secretary of State to make such provision in regulations as he considers necessary or expedient in relation to the making of the instrument of government; the reconstitution of governing bodies after the appointed day; and the constitution of such bodies on and after that date pending their reconstitution at some later date.

210.      Paragraph 1(5) gives power for regulations to deal with the schools which are currently grouped under one governing body and the transition to individual governing bodies under new instruments of government.

211.      Paragraph 1(8) allows for regulations to make provision for the school government aspects of transition to the new framework of new schools.

212.      Paragraph 1(9) says that regulations under paragraph 1 can modify, apply, or make provision similar to provision in Part II of the Act, or save, with or without modification, provisions in Part II and Part III of the Education Act 1996.

213.      These powers are necessary to ensure a smooth transition to the new framework and minimum turbulence for governing bodies. The regulations may allow, where appropriate, for the continuation in office of existing governors of specified categories, notwithstanding that they do not meet all of the new requirements. Where governing bodies are not reconstituted by the appointed day (for example, grant-maintained schools whose final category has not been decided), the regulations may provide for existing governance provisions to continue, subject to modification.

214.      The provisions will be technical and detailed and, being transitional, will have a limited life span. They are therefore suitable for secondary legislation.

215.      Paragraph 3(4) allows the Secretary of State, by order, to transfer his powers to give consent where governing bodies wish to borrow sums and grant security. The powers may only be transferred to the relevant LEA and can be applied either to all schools or to specific categories of schools. This approach has been adopted to enable the Secretary of State to transfer his powers should experience suggest that LEAs are better placed to determine such matters. The power to transfer this function is exercisable by order made by S.I., subject to the negative resolution procedure. This is consistent with the mechanism in paragraph 1 of Schedule 3 to the Education Act 1996 for transferring the comparable power in respect of grant-maintained schools to the Funding Agency for Schools.

216.      Paragraph 3(5) requires LEAs, in exercising the function of giving consent transferred to them by regulations under paragraph 3(4), to comply with any directions contained in an order made by the Secretary of State. In line with comparable powers to make orders containing directions (such as under sections 24 and 497 of the Education Act 1996) the power to make an order under paragraph 3(5) is not exercised by S.I..

  Schedule 11: Membership and proceedings of governing bodies

217.      Schedule 11 provides powers to make regulations on a range of matters relating to governing body membership and proceedings, governor expenses, and the clerk.

218.      Part I paragraph (1) provides a power to make regulations on specific matters which are set out in paragraphs (2) to (5). These include:

        a.    procedures for election, appointment or nomination of persons as governors, requirements in relation to appointment or nomination, and qualification or disqualification for election, appointment or nomination or voting in an election of governors (including provision for determining whether any person is a person of a prescribed description and provision requiring joint appointments to be made, in prescribed circumstances, in accordance with a direction by the Secretary of State);

        b.    the qualifications and disqualifications for holding office; the term of office; the resignation or removal of governors;

        c.    meetings and proceedings of governing bodies (including allowing or requiring governing bodies to determine provision); and

        d.    the provision by governing bodies of minutes (including draft minutes) to the LEA and of such documents and information relating to their meetings and proceedings as may be specified to such persons and in such form and at such time as may be specified.

219.      Part II paragraph 6(1) provides a new power to make regulations in relation to the payment of expenses to governors at schools with delegated budgets. The intention is to extend the scope of allowances which may be paid. Current provisions prohibit the payment of any expenses other than those for travel and subsistence. The regulations may enable governing bodies to pay, for example, childcare expenses or support for governors with disabilities.

220.      Paragraph 6(2) provides that expenses of governors at schools without delegated budgets may be paid by the LEA in accordance with a scheme. Regulations may impose a limit on the amount which may be paid by way of any allowance under section 519 of the Education Act 1996.

221.      Paragraph (8) allows regulations to be made to provide for the appointment, replacement and dismissal of clerks to governing bodies.

222.      The matters covered in Schedule 11 are detailed and technical and so more appropriate to regulations than to primary legislation. Under current legislation, many of them are already dealt with in regulations. The new regulations will roll forward many current provisions which are well accepted and known to operate satisfactorily. Where new provision is to be made, the regulations will be made following consultation and will be capable of being fine-tuned over time.

  Schedule 12: Instruments of Government

223.      Schedule 12 provides for the making and reviewing of instruments of Government.

224.      The content of the instrument and the basic procedure for making it, including provisions to ensure appropriate consultation, are prescribed in primary legislation. The detailed procedure for making the instrument may need to be varied in regulations to allow, for example, for the preparation of the new instrument in advance of the appointed day. The intention is to provide in regulations pro-forma instruments of government for completion by the governing body. The regulations will detail technical issues, and will in particular cover the circumstances where a governing body has the latitude to use alternative variants of the pro-forma or to determine what the instrument should provide. The provisions will be technical and detailed and so suitable for secondary legislation.

  Schedule 14: LEA schemes - approval, imposition and revision

225.      Paragraph 1(1) empowers the Secretary of State by order (not S.I.) to state the date by which a scheme prepared by an LEA under clause 47 must be submitted to him. An identical power is contained in section 104(1) of the Education Act 1996.

226.      Paragraph 1(7) enables the Secretary of State to make regulations (S.I.: negative resolution) prescribing the manner in which LEAs must publish their schemes, and also the occasions on which they must do so (subsequent to the initial publication which is required by paragraph 1(7) itself).

227.      An identical power is contained in section 121 of the Education Act 1996. The relevant current regulations are The Education (Publication of Schemes for Financing Schools) Regulations 1993 (S.I 1993/3070). The effect of these regulations, in conjunction with the enabling power, is to require each LEA to supply copies of its scheme (and subsequent revisions thereto) to the governing bodies and head teachers of its own schools and any grant-maintained or grant-maintained schools in its area; and to make copies freely available for public reference at schools, public libraries and the LEA's own offices.

228.      While it is desirable that LEAs should remain under a statutory duty to publish their schemes, it would not be appropriate to entrench the detail in primary legislation. The Secretary of State will wish to consider, in consultation with interested parties, whether the existing requirements should be modified, bearing in mind that the schemes covered by the existing requirement are more wide-ranging than those required of LEAs by clause 47 (see notes on clauses 45 and 46).

  Schedules 16 and 17: Staffing of schools in the new framework

229.      Paragraph 22(4) of Schedule 16 applies to community, voluntary controlled and community special schools. It enables the Secretary of State to prescribe in regulations (S.I.: negative resolution) rules and procedures for determining the capability of staff to apply to a school or any class or description of schools. Where applicable the governing body of a school shall act in accordance with those prescribed rules and procedures in determining the capability of staff; and in the event of any inconsistency those rules and procedures shall prevail over any established by the governing body. This will enable the Secretary of State to ensure that all schools have adequate staff capability rules and procedures by being able to prescribe rules and procedures for either any schools which have not established them, or any schools whose rules and procedures do not have regard to the guidance given by the Secretary of State.

230.      Paragraph 30 enables the Secretary of State to make provision by regulations for the appointment, discipline, suspension and dismissal of persons employed to work solely at a school in connection with the provision of school meals. This is because there are a variety of possible arrangements for the provision of school meals and the flexibility offered by regulations is needed in order to ensure that all of those possibilities for the employment of school meals staff can be covered. This also applies to any such staff employed by an LEA to work in a foundation, voluntary aided or foundation special school.

231.      Paragraph 21(4) of Schedule 17 applies the provisions of paragraph 22(4) of Schedule 16 to staff at foundation, voluntary aided and foundation special schools.

  Schedule 18: Appeals against exclusion of pupils

232.      Schedule 18 sets out the procedures for appeals against permanent exclusions. It replaces Schedule 16 to the Education Act 1996 and Schedule 25A to the 1996 Act (inserted by Schedule 1 of the Education Act 1997). Under paragraph (19) of Schedule 18 the Secretary of State may by order amend any of the preceding provisions of the Schedule. The order making power will be exercised by S.I., subject to negative resolution.

233.      The inclusion of paragraph (19) in the proposed new Schedule follows the precedents of paragraph 18 of Schedule 16 to the 1996 Act and paragraph 14 of Schedule 25A to the 1996 Act. Amendments to Schedule 18 are likely to be of a minor or technical nature, which is better dealt with by delegated rather than primary legislation.

  Schedule 19: Required provision for religious education

234.      The relevant provisions are paragraph 2(4) - relating to community schools and foundation and voluntary schools without a religious character - and paragraph 3(4) - relating to foundation or voluntary controlled schools with a religious character.

235.      These provide that former grant-maintained schools which are following an agreed syllabus for religious education other than the agreed syllabus adopted by the local authority in which they are situated - as permitted by the 1996 Act - shall revert to the syllabus adopted by their home authority by the end of the period prescribed by order (S.I.: negative resolution) by the Secretary of State, or earlier if the governing body so determine.

236.      Secondary legislation will allow the Department to consult on the period to be specified in the order. Negative resolution is judged appropriate given the nature of the subject matter of the order.

  Schedule 23: Determination, variation and review of standard numbers

237.      Paragraph 4(1) allows the Secretary of State to make an order applying to maintained schools in England of any class or description (e.g. all primary schools) any standard number that would otherwise apply by virtue of paragraph (1) or (2) of Schedule 23. The order would have to be made by S.I. subject to negative resolution. This would re-enact a provision currently to be found in section 420(1) of the Education Act 1996. Paragraph 8(1) makes identical provision in relation to schools in Wales.

238.      Paragraph 5 (1) allows the Secretary of State to prescribe the manner in which proposals for a variation in standard number must be published, the information which must be contained in those proposals and the information which applicants must send to the School Organisation Committee. The manner of publication is likely to be the same as for other kinds of statutory proposals for the reorganisation of schools. Paragraph 9(1) makes very similar provision in respect of an application to vary the standard number for a school in Wales - except that application is made to the Secretary of State, not the School Organisation Committee. The level of detail involved makes regulations subject to negative resolution appropriate.

239.      It is expected that regulations will require proposals to include the current standard number, the proposed standard number, the date from which it is proposed the new standard number will take effect and the School Organisation Committee to which objections may be sent; information to be sent to the School Organisation Committee will include detailed information supporting the application, and information relating to any changes in the accommodation or the circumstances of the school. It is considered appropriate for regulations made by negative resolution to be used for this level of detail.

240.      Paragraph 5(5) (in relation to England) and paragraph 9(6) (in relation to Wales) allow the Secretary of State to prescribe the period within which any objection to proposals for a variation of standard number must be made (under paragraph 5(4) or 9(5)). It is expected that this period will be the same as for other school reorganisation proposals. In the Department's view, this level of detail, and the need for flexibility should circumstances change, justify the use of regulations subject to negative resolution.

241.      Paragraph 5(6) (in relation to England) and paragraph 9(7) (in relation to Wales) allow the Secretary of State to make regulations providing for paragraphs (5) and (6) (England), or (9) and (10) (Wales), of Schedule 23 (procedure for application to vary a standard number and decisions on those applications) to have effect with appropriate modifications as regards an application to vary the standard number in relation to a school which is situated outside the area of the LEA who maintain it.

242.      These regulations will allow special arrangements to be made for a school which is outside the maintaining LEA's area. It is expected that these regulations will deal with matters such as to which School Organisation Committee the application would be made (in relation to England only), and who should be consulted about the application. Once again, it is considered appropriate for regulations made by negative resolution to be used for this level of detail.

243.      Paragraph 6(9) (in relation to England) allows the Secretary of State to make regulations (subject to negative resolution) to enable the School Organisation Committee or the adjudicator to review any decision of theirs to vary the standard number of a school, and, if appropriate, to revoke or vary any such decision in such circumstances as may be prescribed.

244.      These regulations will allow the School Organisation Committee or the adjudicator to rectify any mistakes they have made in considering a case. It is expected that the circumstances in which a decision of the School Organisation Committee could be changed will include situations where the decision has been based on a mathematical error made in calculating the capacity of a school to accommodate pupils. A precedent for a provision of this type, which allows an administrative body to review its own decisions, is to be found in section 336(2)(o) of the Education Act 1996 (which relates to the procedure to be followed by the Special Educational Needs Tribunal).

245.      Paragraph 9(7) (in relation to Wales) allows the Secretary of State to make regulations which would allow him to review his own decisions varying the standard number of a school and, if appropriate, to revoke or vary any such decision in such circumstances as may be prescribed. Such regulations are likely to be very similar to those made under paragraph 6(9).

  Schedule 24: Admission appeals

246.      Paragraph (5) restates a regulation-making power in the existing legislation (Schedule 33 to the Education Act 1996,) enabling the Secretary of State to make regulations which require LEAs and governing bodies to make arrangements for advertising for lay members to serve on appeal panels and for considering those who respond when making appointments (S.I.: negative procedure). The regulations may specify the manner and the timing of advertisements.

247.      Paragraph (16) enables the Secretary of State, by order, to make such amendments to the preceding provisions of the Schedule as he considers expedient (S.I.: negative procedure). This follows the precedents of paragraph 18 of Schedule 16 to the Education Act 1996 on exclusion appeals (re-enacted in paragraph 19 of Schedule 18 to the Bill) and paragraph 14 of Schedule 2 to the Education Act 1997 (re-enacted in Schedule 25, see below).

248.      Schedule 24 contains provisions that are detailed and technical and any amendment to the Schedule is likely to be of a minor or technical nature, which could be more conveniently dealt with by secondary rather than primary legislation.

  Schedule 25: Children to whom section 82 applies

249.      Schedule 25 re-enacts the provisions in the Education Act 1997 requiring LEAs to make arrangements enabling an appeal by the governing body of a school for which the LEA is responsible for admissions against the LEA's decision to admit a child who has been excluded from two or more schools when clause 82 applies.

250.      Paragraph (14) enables the Secretary of State, by order, to amend the preceding provisions of the Schedule (S.I.: negative procedure). This provision re-enacts paragraph 14 of Schedule 2 to the Education Act 1997.

251.      Schedule 25 contains provisions that are detailed and technical and any amendment to the Schedule is likely to be of a minor or technical nature.

  Schedule 28: Amendments to school and nursery inspections

252.      Paragraph (2) provides for categories of persons to be prescribed for the purposes of section 7(3) of the School Inspections Act 1996, which deals with the registration of registered inspectors, who may conduct school inspections under that Act.

253.      Paragraph (6) provides for categories of persons to be prescribed for the purposes of paragraph 8(3) of Schedule 1 to the Nursery Education and Grant-Maintained Schools Act 1996, which deals with the registration of registered nursery inspectors.

254.      This new provision parallels that in paragraph 3(2) of Schedule 3 to the School Inspections Act 1996, which requires registered inspectors to ensure that no member of a team carrying out a school inspection falls within a prescribed category of persons.

255.      Section 45 of the School Inspections Act 1996 provides for regulations to be made by negative resolution. Regulations allow a degree of flexibility and in particular would enable the categories of person to be ineligible to participate in school inspections, whether as registered inspectors or team members, to be changed over time.

  Schedule 29: Pupil performance and characteristics information

256.      Paragraph (129) substitutes a new section 537A of the Education Act 1996. The existing provision allows the Secretary of State to collect information about the performance of individual pupils. The amendment extends this power by enabling him to require schools to provide more general information relating to individual pupils. The new power would enable collection of information on pupil characteristics, for example, on ethnicity, eligibility for free school meals, SEN and a pupil's date of joining and leaving school. This information is needed in order to analyse the levels of performance of different groups of pupils, such as ethnic minority pupils, in support of the Government's policies for raising standards. The new provision would also enable the Secretary of State to require schools to provide this data direct to prescribed bodies such as LEAs.

257.      The arrangements for collecting and disseminating pupil level information are complex, and will inevitably need to adapt (in some respects perhaps annually) to reflect changing circumstances and policy objectives. It would in practical terms be impossible to include all the detail on the face of the Bill. Keeping the detail in regulations also allows the necessary degree of flexibility in the precise information to be collected, and the collection and dissemination arrangements. The use of negative resolution would be consistent with practice under the existing section 537A, and provides the appropriate level of Parliamentary scrutiny.

8 April 1998


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998