Select Committee on Delegated Powers and Deregulation Third Report


ANNEX 1

LEARNING AND SKILLS BILL [HL]
Memorandum from the Department for Education and Employment

INTRODUCTION

1.  The Learning and Skills Bill received its first reading in the House of Lords on the 16th December 1999. This Memorandum identifies provisions for delegated legislation, explains their purpose and method of operation, and explains why the particular form of Parliamentary control of delegated legislation been selected in each case.

MAIN PROVISIONS

2.  The Bill will modernise and simplify arrangements for the planning, funding, and quality assurance of post-16 learning. It implements in England the proposals contained within the White Paper, "Learning to Succeed" and the "Learning and Skills Council Prospectus", and the proposals for a new support service for young people recommended by the Social Exclusion Unit in its report, "Bridging the Gap". It implements in Wales the proposals contained in the "Education and Training Action Plan" for Wales. The main provisions of the Bill are:

    (a)  the establishment of the Learning and Skills Council (LSC) in England: which will be responsible for post-16 learning (other than higher education), taking over the functions currently performed by the Further Education Funding Council (FEFC) and the Training and Enterprise Councils (TECs). The LSC will operate through a network of local councils. It will assume the current duties of local education authorities (LEAs) in respect of adult and community learning. The creation of the LSC means that existing divisions of responsibility for the provision of further education in colleges, work-based learning and adult and community learning will be removed;

    (b)  the establishment of the National Council for Education and Training (CETW) for Wales: which will have broadly similar functions to the LSC in England but with some variations to reflect the different Welsh circumstances;

    (c)  new arrangements for rigorous and independent external inspection of education and training provision: in England the Bill will provide for a new Adult Learning Inspectorate (ALI) which will inspect all further education for those aged 19 and over and work-based learning for all ages. The Bill will extend the functions of the Office for Standards in Education (OFSTED) enabling it to inspect provision for 16-19 year olds in further education and sixth-form colleges as well as in school sixth forms. The Bill provides for a single common framework for inspection to be drawn up and agreed by the two Chief Inspectors; provides for joint inspections in areas where the provision falls within the remit of both Inspectorates; and provides for inspections of provision in a geographical area. The LSC is to have powers to intervene where inspection of a sixth form has identified serious weaknesses. There will also be clearer powers to intervene in the management of FE colleges;

    (d)  the extension of the current functions of the Welsh Inspectorate, Estyn: which will take on wider responsibilities for the inspection of all post-16 education and training provision;

    (e)  powers to establish a new Youth Support Service (YSS) in England: the aim of which will be to work with young people of all abilities to give them integrated advice, guidance and support to participate effectively in learning. The service will provide particular support to remove the barriers to participation affecting the most disadvantaged young people. The Bill will place a duty on other statutory bodies to co-operate and support the new services and enable effective collecting and sharing of relevant information about young people. The new service will also perform a new duty to make an assessment of the special educational needs of young people moving from school into post-16 learning;

    (f)  improvements in the coherence between the secondary and further education systems: by providing for funding for school sixth forms to flow to LEAs from the LSC; by removing obstacles to collaboration between schools, LEAs and FE institutions; and by enabling the creation of new LEA maintained 16-19 schools.

    (g)  miscellaneous provisions: to support the reforms announced in the White Paper, such as provisions for the approval of external qualifications for public funding and provisions for individual learning accounts.

RATIONALE AND OVERVIEW OF DELEGATED POWERS

3.  The Bill contains powers to make delegated legislation or amend existing delegated legislation. In considering whether matters should be specified on the face of the Bill or left to delegated legislation the Department has taken account of the need to ensure that:

    (a)  the overall legislative framework and the substantive policy provisions are presented clearly on the face of the Bill;

    (b)  the provisions of the Bill contain sufficient flexibility to allow detailed administrative arrangements to respond to changing circumstances.

PARLIAMENTARY SCRUTINY

4.  In general, Regulations and Orders made by the Secretary of State will be statutory instruments. The exceptions are instances where the Bill (by means of paragraphs 6, 7 and 10 of Schedule 8) amends provisions in the Further and Higher Education Act 1992 which provide for Orders which are not made by statutory instrument. Regulations and Orders made by the National Assembly for Wales will be subject to the National Assembly's own procedures as provided for in its standing Orders under the Government of Wales Act 1998.

5.  It is the Government's intention that all the Secretary of State's powers to make Regulations and Orders by means of Statutory Instruments are to be subject to the negative resolution procedure. The exceptions are commencement Orders in line with normal practice and Orders under clause 112. Reliance upon the negative procedure reflects our view either that the relevant matters are of administrative or procedural detail or follow the precedents for Parliamentary scrutiny adopted in analogous education legislation. Clause 114 does not currently reflect the Government's intentions for the appropriate level of Parliamentary scrutiny. It wishes to inform the Committee that it is the Government's intention to table amendments at the Committee stage to give effect to the policy in respect of delegated legislation set out in this Memorandum.

PART ONE: THE LEARNING AND SKILLS COUNCIL FOR ENGLAND

6.  Clause 18(4) follows the precedent of section 8(4) of the Further and Higher Education Act 1992, which gives the Secretary of State a similar power in relation to the Further Education Funding Council. Section 18(4) enables the Secretary of State to give the LSC additional powers or duties beyond those set out in the Learning and Skills Bill after the Bill is enacted.

7.  The delegated power has been included in case the supplementary functions set out earlier in clause 18 prove insufficiently flexible for the LSC to carry out its core duties effectively and efficiently, and in this context we regard the provision as being a safety net which is unlikely to be invoked. The Secretary of State will retain his current powers under the Education and Training Act 1973 and education legislation generally, which extend beyond the powers of the LSC. It may be that in due course he will wish to delegate to the LSC the exercise of relevant powers in respect of particular schemes for which he retains responsibility. The only exercise of the power in section 8 (4) has been of this latter sort: see the Further Education Funding Council (Supplementary Functions) Order 1999 (S.I. 1999/2269).

8.  The exercise of the power may not be used to create new powers or duties for the Secretary of State or to confer powers which extend beyond the provision of post 16 education and training as defined within the Bill. As with the 1992 Act the power will continue to be exercised through the negative resolution procedure.

PART TWO: NATIONAL COUNCIL FOR EDUCATION AND TRAINING FOR WALES

9.  Clause 43(4) makes provision in Wales similar to that provided at clause 18(4) for England. It enables the National Assembly to give the CETW additional powers or duties beyond those set out in the Learning and Skills Bill after the Bill is enacted. As in England, this Clause follows the precedent of section 8(4) of the Further and Higher Education Act 1992 which gives the Secretary of State for Wales a similar power in relation to the Further Education Funding Council for Wales. The power in the 1992 Act was devolved to the National Assembly for Wales under the Government of Wales Act 1998.

PART THREE: INSPECTIONS IN ENGLAND

10.  There are six regulation making powers in Part III of the Bill, but these can be grouped into three sets:

    (a)  Regulations which permit the Secretary of State to prescribe additions to the remit of either the Adult Learning Inspectorate (Clause 50(1)(e) or OFSTED (Clause 57(d));

    (b)  regulations prescribing conditions for action plans following inspections by the Adult Learning Inspectorate (Clause 55(3)); by OFSTED (Clause 61(3)); or after an area inspection (Clause 64(5)); and

    (c)  regulations to govern the conduct of joint inspections (Clause 68).

11.  As explained at paragraph 5 of the Memorandum, the Bill does not currently provide for Parliamentary Scrutiny of these provisions for delegated legislation. The Government will bring forward amendments at the earliest opportunity to rectify this error.

REGULATIONS TO EXTEND THE REMIT OF THE INSPECTORATES

12.  Clause 50(1)(e) gives the Secretary of State the power to make regulations which extend the remit of the Adult Learning Inspectorate. This is defined at clause 50(1) subsections (a) to (d) as education and training for people over the age of 19, except higher education and work-based training for people of all ages.

13.  The regulation making power at Clause 50(1)(e) is designed to allow minor additions to the principal remit to ensure that the expertise of the Adult Learning Inspectorate can apply to other relevant areas of education and training as provision develops over time. It is impractical to have a full list of these types of education and training on the face of the Bill, but the regulation making power will allow the Secretary of State to add to the remit if that proves appropriate.

14.  This may be the case, for example, because of the fast-changing nature of post 16 education and training, particularly within the growth of "virtual" or distance learning; and with provision being made increasingly in new, non-traditional locations; and because of the possibility of partnerships with new types of provider. Clause 50(1)(e) already mentions the possibility of using this power to prescribe the training of Further Education teachers. We see this as a strong possibility, but it will only be possible to determine the extent to which ALI will be involved in new areas once ALI is established and able to demonstrate its capacity.

15.  The regulations made by means of this power will represent comparatively minor additions to ALI's remit. The provision is analogous to the power to confer supplementary functions on the LSC (see clause 18(4) and the comments above at paragraph 6ff). As with that provision and its precedent in the 1992 Act, the negative procedure is appropriate.

16.  Clause 57(d) gives a power to make regulations which extend the remit of Her Majesty's Chief Inspector of Schools. Its purpose is to allow minor additions to HMCI's principal remit, for example, FE teacher training provided in HE institutions, and is analogous to that at Clause 50(1)e for the Adult Learning Inspectorate.

Regulations about action plans

17.  Clauses 55(3) and clause 61(3) make provisions for regulations covering action plans which must be produced by providers of education and training following inspections by ALI or OFSTED respectively (other than action plans following a joint inspection which are covered separately in the regulations under Clause 68).

18.  The policy intention is to ensure that, in general following an inspection, any provider of education and training must take action to remedy weaknesses identified by the inspection. The regulations are needed to provide for detailed administrative arrangements, including the publication arrangements and the timescales involved. These arrangements may be complex, and will vary according to the severity of the weaknesses identified in the report. Flexibility within regulations is needed to ensure that, on the one hand, serious weaknesses can be eradicated very rapidly and on the other, a "light touch" regime, with minimal bureaucracy, can apply to good providers. The flexibility afforded by regulations is required so that the provisions can reflect a range of different administrative procedures depending on the nature of the report.

19.  Clause 64(5) makes similar provisions for regulations to prescribe arrangements for action plans following area inspections. These will differ in their details as the need for remedial action, following an area inspection report, could apply to the LSC or to the local LEA(s) or to both. Again, as with other types of inspection, the Secretary of State is likely to require more urgent action, to ask for more detailed plans and to specify wider distribution of the action statement in the case of a poor report than in the case of an area inspection which is satisfactory or better.

20.  In short, the regulations proposed at clauses 55(3), 61(3) and 64(5) are needed to ensure a flexible approach to post inspection action planning. They will deal with administrative arrangements not the core provisions of inspection. The flexible approach should reduce the burden of action planning for providers of good quality education and training and should not prove controversial.

REGULATIONS GOVERNING JOINT INSPECTIONS

21.  Clause 68 provides a regulation making power in relation to joint inspections, which will occur when - for a particular provider - the remits of ALI and OFSTED overlap.

22.  As background, the Committee may wish to note that joint inspections are needed because the different contributions and expertise of both inspectorates will be needed in many institutions which have a wide range of provision. This will include the great majority of FE colleges and many specialist institutions outside the sector, including those making provision for students with learning difficulties and/or disabilities.

23.  For example, although there are some 110 sixth form colleges which concentrate principally on 16-18 provision, the majority of these will have some adult students (for example, taking part-time evening classes), and therefore come within ALI's remit. Few colleges, except adult residential colleges such as Ruskin or Northern College, will have no 16-18 students (and therefore lie outside OFSTED's remit). We might expect HMCI to have a duty to secure joint inspections in some 400 or so of the 430 FE colleges.

24.  The regulations at clause 68 are needed because of the complexity of joint inspections, including: for determining a suitable mechanism for establishing whether they are needed; for determining the planning mechanism for the conduct of joint inspections; for determining arrangements for joint reports; and for the arrangements for action plans after a joint inspection. Clause 68(2) provides vires for all these circumstances.

25.  Clause 68(2) subsections (a) to (c) make provisions for regulations to determine the circumstances in which joint inspections may or must be conducted. As in the case of sole inspections by HMCI (clause 59), a joint inspection must take place where the Secretary of State requests it, or a joint inspection may take place under the power of HMCI (clause 65) to conduct one. For either of these cases, it may not be clear at the outset whether a joint inspection really is required, or whether one or other inspectorates has the sole remit. Accordingly, there needs to be a duty on: an Inspectorate proposing to undertake a "sole" inspection under the duties and powers in part III; and, on HMCI in the case of a joint inspection proposed by himself or requested by the Secretary of State; to ascertain from the body in question such information as will enable it to determine whether or not it has vires to conduct the inspection.

26.  In the case of a proposed sole inspection by one Inspectorate, the response from the provider will disclose one of the following possibilities:

    (a)  that the Inspectorate does have the vires to undertake a sole inspection, in which case matters will proceed as in relation to sole inspections under part III;

    (b)  that the Inspectorate has no vires at all because the provider in question comes only within the jurisdiction of the other Inspectorate. This is a highly unlikely result in practice but is theoretically possible. In this eventuality, the Inspectorate without vires would have a duty to inform (i) the other Inspectorate and (ii) the Secretary of State (where he had requested the inspection) of its findings. The Secretary of State may then require the other Inspectorate to undertake a sole inspection. If he does not, the other Inspectorate has a power to undertake such a sole inspection.

    (c)  that both Inspectorates have vires - which will be a frequent outcome. In this eventuality, the Inspectorate which made the original enquiry of the provider shall inform (i) the other Inspectorate and (ii) the Secretary of State (where he had requested the inspection) of its findings. The Secretary of State may require HMCI to lead a joint inspection. If he does not, HMCI would be able to use his power to undertake a joint inspection. By contrast, ALI would not be able to require a joint inspection without HMCI's agreement.

    (d)  that neither Inspectorate has vires, in which (exceedingly unlikely) case that is the end of the matter.

27.  In the case of a proposed joint inspection, the response from the provider will again reveal (discounting the unlikely event that neither Inspectorate has vires):

    (a)  that only one of the Inspectorates has vires. If so, the other drops out of the picture. Where the Secretary of State had required a joint inspection to be undertaken, HMCI shall inform him that one or other of the Inspectorates lacks vires to be involved in such an inspection. In which case, the Secretary of State has liberty to require that a sole inspection be undertaken by that body. If he does not, the Inspectorate with vires has the power to undertake a sole inspection.

    (b)  that both have vires, in which case a joint inspection may proceed.

28.  The regulations will need to place a duty on the institution or provider to respond to a reasonable request from HMCI (or ALI) for information to establish the remit. In practice, this will involve a very simple questionnaire about the type of provision made by the institution.

29.  Clause 68(2)(d) makes provisions for regulations to prescribe details (other than those included in the Common Inspection Framework - see clause 66) about the planning of the joint inspection. These details may include general provisions about the proportion of staff from each inspectorate, the arrangements for inspecting classes where the remits of the Inspectorates overlap, arrangements for HMCI to consult the Chief Inspector of Adult Learning over the inspection, and a duty on the Chief Inspector of Adult Learning to comply with reasonable requests from HMCI. In practice, provisions such as those in clause 66(5) and (6) may apply with minimal, if any, modifications.

30.  Clause 68(2)(e) makes provisions for regulations to modify the provisions of part III of the Bill in relation to joint inspections. Only minor modifications are envisaged. For example, in the case of adult residential college with 500 adults and one 17 year old, the remits of the two Inspectorates would, technically, overlap. HMCI would have the duty to direct a joint inspection even though under 1% of the provision was within his remit. We envisage that the regulations could be used to ensure that, in such circumstances, anomalies do not arise.

31.  Clause 68(2)(f) makes provisions for regulations to prescribe arrangements for reports of joint inspections. These will be similar to those in clause 63 (with possible slight modification to clause 63(3) - persons receiving a copy of the report).

32.  Clause 68(2)(g) makes provisions for the completion of action plans by providers of education and training following a joint inspection. These will be similar in nature to the other regulation-making powers concerning post-inspection action plans at clauses 55(3), 61(3) and 64(5). As with these provisions, it is necessary to make such arrangements in regulations according to the nature of the findings of inspections.

33.  As a whole, our use of regulations with regard to joint inspections reflects the many detailed technical and operations considerations which are necessary for their satisfactory operation. Joint inspections should be single events, with no duplication of activity by the Inspectorates. They should result in a single but comprehensive report and bureaucracy must be kept to a minimum. The regulations under clause 68 are essential to achieve these objectives.

34.  We envisage that the operational principles to be set out in the regulations make them suitable for the negative procedure. Ministers intend to produce a document explaining these regulations, including if possible draft provisions, before the Committee stage in the House of Lords.

PART FOUR: INSPECTION IN WALES

35.  Clause 71(1)(e) makes provisions for regulations to extend the remit of Her Majesty's Chief Inspector of Education and Training in Wales. The remit of the Chief Inspector is defined in clause 71(a) to (d) and includes post-16 education and training provision, including those under 16 in the further education sector, further education provided by a school or under a partnership arrangement between a local education authority and a further education institution. The regulation making power at clause 72(1)(e) is analogous to those at clause 50(1)(e) for the Adult Learning Inspectorate and clause 57(d) for HMCI Schools in England. It is similarly designed to allow minor additions to the Chief Inspector for Wales' remit in areas similar to those cited by way of example for England.

36.  Clause 73 provides that the Chief Inspector for Wales must secure inspections by members of her staff and for them to make reports to her on the quality of provision inspected, the standards achieved by post-16 learners and whether the financial resources available to the providers are managed efficiently. The regulation making power at clause 73(2) is designed to enable the National Assembly to set the frequency of inspections, whether within a regular cycle. It is designed to complement clause 72(2)(c) which empowers the National Assembly to require the Chief Inspector for Wales to inspect any post 16 education and training within her extended remit. As such the National Assembly will wish to consider different frequencies of inspection, for example, regarding FE colleges and private training providers, and the regulatory power will allow the National Assembly to prescribe them and, if necessary, modify the intervals as considered appropriate. The National Assembly has stipulated that the regulation power at clause 73(4) is needed to ensure that the findings of all inspection reports are reported to the National Assembly (and others) within a given time. The National Assembly has stipulated that it wishes to set out these arrangements in regulations rather than through administrative procedures, not least to address quickly any serious education or training weaknesses.

37.  Clause 76(3) makes provisions for the National Assembly to make regulations about the publication and distribution of action plans by providers of education and training following an inspection by the Chief Inspector for Wales of provision within her remit (described at clause 71). The regulation powers for the National Assembly at clause 76(3) are analogous to those at clause 55(2) and (3) for the Adult Learning Inspectorate and clause 61(2) and (3) for HMCI Schools in England. As in England, these arrangements are made by means of regulations to allow the National Assembly sufficient flexibility to respond to the varied findings of inspection reports.

38.  Clause 79 enables the Chief Inspector for Wales to conduct an inspection, that is within her remit, in a specified area in Wales. The clause also places a duty on providers of post-16 education and training, the CETW and local education authorities - within the area being inspected - to provide information to the Chief Inspector for Wales. The regulation making power at clause 79(6) enables the National Assembly to make further provision with respect to the obligation upon providers of education and training to provide information to the Chief Inspector and is designed to cover any additions that may be made to her remit at clause 72(1)(e).

PART FIVE: MISCELLANEOUS AND GENERAL

External qualifications

39.  Clause 89 contains powers to enable the Secretary of State or the National Assembly, by order, to specify an authorised body which uses public funds for the provision of external qualifications which have been approved under clauses 85 and 86.

40.  The authorised body is responsible for ensuring that any payments it has made for the pursuit of external qualifications are only used by an institution or employer to fund those that have been approved. In the case of qualifications approved for use by those under the age of 19 a payment would also cover the course leading to the qualification. For those over 19 only the payment made for the fees associated with registration, assessment, moderation/verification and the awarding of the qualification would be controlled.

41.  The scope of clauses 85 and 86, for the approval of external qualifications, is designed to embrace all qualifications used in secondary and further education, and for use by secondary and further education students wherever they are studying if the provision is publicly funded. Clause 89 specifies the key funding bodies: LEAs, the LSC and the CETW. There will be cases where it will be appropriate to approve qualifications for use but where the funding is provided by another funding authority. In such cases we would wish the funding authority to be specified.

42.  In England, the use of an Order (subject to negative resolution) to name a funding authority is consistent with section 37 of the Education Act 1997 which will be replaced by this clause. In Wales, an Order will be subject to the National Assembly's own procedures as provided for in its standing orders under the Government of Wales Act 1998.

Individual Learning Accounts

43.  Clauses 93 and 94 contain powers to make regulations covering "accounts which qualify under clause 93", known informally as individual learning accounts. Individual learning accounts are a new method of funding and promoting learning. Their purpose is to encourage people in work to invest their personal resources in learning by making available public subsidies in particular circumstances where they do so. Clauses 93 and 94 therefore contain provisions for regulations covering grants to be paid to, or in respect of, the holders of qualifying accounts in connection with their education or training.

44.  Clause 93 makes provision for regulations which allow the Secretary of State to define the detailed conditions that have to be satisfied for an account to qualify as an account under clause 93 (subsection (1) and (2)). Subsection (3) provides that amongst other things the conditions in the regulations may relate to the description of an individual who may hold an account, the description of the institution with which an account may be held and conditions requiring an account to be identified by a specified name. Subsections (4) and (5) contain further provisions relating to the method by which the institutions with which an account may be held are described, including a power to provide that the institutions are approved by the Secretary of State.

45.  Individual learning accounts are a new and developing policy area and specifying the detail in regulations ensures that the Secretary of State has the flexibility to respond quickly to changes in circumstances. The use of regulations also avoids the use of too much technical and administrative detail in the primary legislation. For example, the Secretary of State will require flexibility in determining which types of institutions are eligible to provide qualifying accounts, and in the detailed description of accounts which qualify for the scheme, in order to take account of market circumstances. Similarly, the Secretary of State may wish to extend the availability of accounts by allowing individuals to hold them in a wider range of circumstances. These provisions are specified in regulations because they concern detailed operational matters which are in accordance with the overall intentions of the scheme. Matters covered by the regulations are not likely to be controversial.

46.  Clause 94 enables the Secretary of State or the National Assembly for Wales to make regulations which deal with authorising of grants which are to be paid to individuals or in respect of individuals. They provide for the payment of grant to or in respect of individuals who hold qualifying accounts in connection with their education and training and provide for conditions which have to be satisfied if grants are to be paid (subsections (1) and (2)). Subsection (3) provides that the conditions can, amongst other things, include conditions as to the types of education or training which qualify. Subsections (4) and (5) allow the regulations to include provision for the types of education and training to be specified by the Secretary of State (or the National Assembly for Wales) or a person designated by him (or the National Assembly for Wales) for the types of education or training which qualify to be provided by a person approved by the Secretary of State (or the National Assembly for Wales) or a person designated by him (or the National Assembly for Wales).

47.  The regulations (subsection (4)) may also provide for the Secretary of State or the National Assembly for Wales to determine the amount of the grant, any terms and conditions on grant and make provision for various administrative matters.

48.  The power to make regulations at clause 94 is necessary to make detailed and complete arrangements for the payment of grants. Making these arrangements by means of regulations will enable the Secretary of State to secure the broad principles of the scheme whilst adjusting matters of its detailed operation in the light of changing circumstances. For example, it is likely that the Secretary of State will periodically adjust the types of educational provision which can be supported by the scheme to ensure that it meets the requirements of current and future participants. Again, the nature of these adjustments is not likely to be controversial.

Sixth-form education: 16-19 institutions

49.  Clauses 96 and 97 contain provisions which amend provisions for delegated legislation in the Further and Higher Education Act 1992.

50.  Clause 96(1) amends section 16 of the Further and Higher Education Act 1992 which allows the establishment by Order further education corporations (subject to the negative resolution procedure). These may conduct LEA-maintained or non-maintained 16 to 19 and adult institutions, which then become part of the FE sector. Clause 96(1) does not create a new power but amends section 16 to reduce the existing power available to the Secretary of State or the National Assembly for Wales to establish a body corporate. In respect of LEA-maintained institutions, only 16-19 institutions may in future be incorporated. If an institution has been established as a school under sections 28 or 31 of the School Standards and Framework Act 1998 the effect of the amendments in subsection (2) of clause 96 is that the power may not be exercised without the consent of the governing body of the school and the LEA that maintains it. There continues to be no such requirement to obtain consent for the establishment by Order of a further education corporation to conduct an institution which has not been properly established as a school, by virtue of clause 95(5).

51.  Incorporations will be made as and when appropriate to create new corporations to conduct institutions. This power is not a new one and, as in the past, it will not be possible to predict future incorporations. It will continue as now to be exercised by Order subject to the negative resolution procedure in England, as provided for in section 89 of the Further and Higher Education Act 1992. We would expect the format of an incorporation Order under the modified power to follow closely the format used in, for example, the Margaret Danyers College (Incorporation) Order 1994 (S.I No 1994/2979) (attached) [not printed]. In Wales, the National Assembly's procedures in its standing orders allow the Assembly to scrutinise individual incorporations.

52.  Clause 97 amends section 28 of the Further and Higher Education Act 1992. Under the statutory regime established by the Further and Higher Education Act 1992 three kinds of institutions may be designated under section 28 as part of the Further Education Sector: voluntary aided schools; institutions (other than schools) assisted by the Local Education Authority (this category will be removed by the amendment to section 28(2)(b) contained in clause 112(1)(b)); and institutions which are grant aided or eligible to receive grant aid under regulations made under section 495 of the Education Act 1996. Clause 97 restricts the existing power of the Secretary of State or National Assembly for Wales to designate voluntary-aided schools for 16 to 18 year olds by providing for designation only with the consent of the governing body and LEA.

53.  In England, the power as amended by clause 97 will continue to be exercised by Order subject to the negative resolution procedure. An Order may deal with one or more institutions. In Wales, the power as amended by clause 97 will, as elsewhere, be subject to the National Assembly's own procedures as provided for under its standing orders under the Government of Wales Act 1998.

54.  It is not possible to predict in advance which institutions may be designated in future. Institutions may also need individual treatment and detail which precludes the use of primary legislation. Secondary legislation is the best option and in England the negative resolution procedure is appropriate for these uncontentious and routine matters affecting individual colleges. We would expect any future Orders to follow the format of the Education (Designated Institutions in Further Education) Order 1993 (S.I. No. 1993/435) (attached) [not printed]. In Wales, the National Assembly's own procedures in its standing orders will allow the Assembly to scrutinise individual designations.

Induction periods for teachers

55.  Clause 109 of the Learning and Skills Bill amends section 19 of the Teaching and Higher Education Act 1998, which enables the Secretary of State to make regulations (subject to the negative resolution procedure) concerning the induction of teachers in maintained schools or in prescribed circumstances in independent schools. Section 19 does not apply to FE institutions. Clause 109 enables the regulations to set out the circumstances in which Further Education institutions are permitted to offer induction to teachers. The powers sought in relation to induction in FE institutions are similar to those in relation to induction in independent schools, with the difference that FE institutions would need to apply to 'appropriate bodies' for approval to undertake the induction of teachers. A delegated power for regulating the induction of teachers is necessary to enable the Secretary of State to change the details of regulations in response to developments in the teaching profession. The intention is that regulations made under section 19 as amended by clause 109 will closely resemble current regulations such as the Education (Induction Arrangements for School Teachers) (England) Regulations 1999).

56.  The Secretary of State proposes to use the power in clause 109 to enable FE institutions which undertake teaching of 16-19 year olds comparable with that in schools, in particular sixth form colleges, to provide induction for teachers. It is envisaged that 'appropriate bodies' for FE institutions will initially be LEAs. In due course the Secretary of State might choose to appoint an appropriate body specifically for FE institutions.

57.  Since the new powers make a limited extension to the regulation-making power in section 19 of the Teaching and Higher Education Act 1998, the negative resolution procedure remains equally appropriate for the regulations under section 19 as amended by clause 109. As elsewhere, in Wales, regulations will be subject to National Assembly procedures.

Further Education Sector: designated institutions

58.  Clause 112(2) amends section 30 of the 1992 Further and Higher Education Act which protects the established character of a designated institution under section 28 of that Act. The purpose of section 30 is to ensure that after designation the institution will continue to be conducted within the terms of its trust deed but the application of section 30 is currently restricted to designated institutions which were formerly voluntary aided schools. Clause 112(1) further amends section 28 of the 1992 Act so that it may apply to newly established institutions, and subsection (2) accordingly amends section 30 to allow its application to any newly founded institution which is designated to enter the FE sector. When section 30 applies, the governing body of any such institution must include a majority of members appointed in order to secure the established character of the institution prior to its designation under section 28. Clause 112(2) thereby allows the Secretary of State to extend the protection of section 30 to a specified institution or class of institution by Order.

59.  This power is necessary to ensure that, where it is appropriate, the established character and the conduct of newly designated institutions may be protected after designation. Orders made under section 30(3) would do no more than specify an institution or class of institution to which the provisions in section 30(1) will apply. As it is not possible to predict in advance when this power will be required because future designations are unknown, primary legislation would not be appropriate. Orders are likely to apply to individual institutions as they are designated and the very limited detail which will be required will be best dealt with by an Order with no Parliamentary procedure. These will be uncontentious measures affecting individual colleges. Section 89(2) of the Further and Higher Education Act 1992 will be amended, by means of a government amendment to this Bill, in order to provide that Orders under section 30(2)(b) as amended shall not be subject to any Parliamentary procedure.

60.  Clause 112(4) and (5) allow the Secretary of State and the National Assembly for Wales respectively by Order to incorporate the governing body of an institution designated under section 28 of the 1992 FHE Act. Subsection (6) enables such an Order to provide for the powers of such an incorporated body, for its dissolution and for the discontinuation of the institution, with the restriction that such powers must have effect subject to the institution's existing instruments and articles of government. An Order made under 112(4) or 112(5) may also confer exempt charitable status on designated institutions and their governing bodies. Protection against unreasonable use of this power is provided by 112(7) which requires the Secretary of State or the National Assembly to consult the governing body and trustees of the institution before making any Order incorporating the governing body or providing for its powers.

61.  It is necessary to deal with these matters in secondary legislation because it is not possible to predict in advance those institutions which might be incorporated, which may include both institutions that have already been designated and those which may be designated in future, and will then require constituting as an incorporated body. The Orders will be extremely detailed and technical. They will be of local application, and may need to be tailored individually to the requirements of particular institutions and the trust deed under which each one operates. In addition, Orders under clause 112(4) and (5) will be agreed with the institutions and their trustees in advance through consultation. In view of this, Orders not subject to Parliamentary procedure will be most appropriate for the exercise of this power.

62.  Clause 114 will be amended by the Government at the earliest possible opportunity to bring about the arrangements described in paragraphs 4 and 5 of this Memorandum.

63.  Clause 116 makes provisions for commencement Orders which, in line with normal practice, are not subject to Parliamentary Scrutiny.

SCHEDULE 7: INADEQUATE SIXTH FORMS

64.  Part 2 of Schedule 7 deals with the publication of proposals to close sixth forms in England and Wales. Part 3 deals with the implementation of these proposals.

65.  Paragraphs 13 and 14 contain provision for regulations in England and paragraphs 17 and 18 contain provisions for regulations in Wales which will prescribe:

    (a)  what information should be contained in proposals published by the LSC for England to alter the age range of a secondary school so that it no longer provides for pupils aged 16 and over (for example, name of persons or body publishing proposals; date on which they are to be implemented; description of the proposed alteration);

    (b)  the manner of publication of the proposals (for example, in at least one newspaper and in a conspicuous place in the area served by the school);

    (c)  information which must be sent to the school organisation committee for the purpose of the committee's consideration of the proposal. By way of illustration, this may include the objectives of the proposal; evidence of consultation; map and list of neighbouring schools; details of pupils; details of the sixth form education and examination performance.

66.  Paragraphs 21 and 22 contain provisions for regulations which will prescribe:

    (a)  what information should be contained in proposals published by the LSC for England to discontinue a sixth form only school (for example, name of persons or body publishing proposals; date on which they are to be implemented; details of the alternative schools which pupils will attend);

    (b)  the manner of publication of the proposals (for example, in at least one newspaper and in a conspicuous place in the area served by the school);

    (c)  information which must be sent to the school organisation committee for the purpose of the committee's consideration of the proposal. This may include, by way of illustration, the objectives of the proposal; evidence of consultation; map and list of neighbouring schools; details of pupils; sixth form education and examination performance.

67.  Paragraphs 25 and 26 make almost-identical provisions for Wales, save insofar as it enables the National Assembly for Wales to make regulations which require the CETW to send proposals for closure of sixth only schools (and any other associated information) to the National Assembly.

68.  Paragraphs 28 and 42 contain provision for regulations which will apply where a school which is subject to proposals from the LSC or the CETW respectively, is situated in the area of a local education authority other than the authority which maintains the school. They will modify Parts II and III of Schedule 7 so that the interests of both authorities are taken into account. For example, the LSC will be required to send its proposals to both local education authorities. In England, the school organisation committee for the maintaining authority will be required to seek a recommendation on whether or not the proposals should be approved from the school organisation committee for the authority in which the school is situated. Where the two committees disagree, the proposals will be referred to the adjudicator.

69.  Paragraph 30 contains provisions for regulations which prescribe the information to be provided by the LSC, school organisation committee or adjudicator to named persons or bodies at specified times for example, notification of the decision by the committee or adjudicator to the Secretary of State.

70.  Paragraph 31 contains provisions for regulations which prescribe the period within which objections to the LSC's proposals may be made.

71.  Paragraphs 32(3) and 33(2)(a) make provisions for regulations in circumstances where the school organisation committee or adjudicator wish to approve the LSC's proposals but with modifications, for example, to the date of implementation. Regulations under paragraph 32(3) will prescribe the persons who should be consulted on the modifications before approval. Similarly, where a modification to the proposals is sought after approval has been given, regulations under paragraph 32(3) will prescribe who should be consulted on the modification.

72.  Paragraph 32(4) makes provision for circumstances where the school organisation committee and adjudicator may approve proposals subject to the occurrence of a specified event. Regulations under this paragraph will prescribe the kinds of events which may be specified.

73.  Paragraphs 32(5) and 34(1) make provision for regulations in circumstances:

    (a)  where a school organisation committee has not taken a vote on the LSC's original proposals; and

    (b)  where a committee has not taken a vote on any modification to approved proposals or on new

proposals to remove the duty to implement the approved proposals.

74.  A period of time will be prescribed within which the committee should take action. Where they fail to vote within that time, the matter will be referred to the adjudicator if the Council requests. The regulations may be framed by reference to the opinion of the committee. So, for example, if the committee is considering two sets of proposals, which in their opinion are related to each other, the prescribed period would end at the same time for both.

75.  Paragraph 33(3)c provides for regulations in circumstances where, following approval to its proposals, the LSC publishes further proposals to remove the duty to implement the proposals - for example, where standards of provision at the institution concerned have improved markedly. Schedule 7 will apply to the handling of these proposals with prescribed modifications.

76.  Paragraph 37 enables the National Assembly for Wales to make regulations which prescribe the information to be provided by the CETW or the National Assembly to named persons or bodies at specified times. This might include, for example, notification of a decision by the National Assembly to the governing body of a school with a sixth form.

77.  Paragraph 38 enables the National Assembly for Wales to make regulations (similar to those which are provided for at paragraph 31) which prescribe the period within which objections to the CETW's proposals may be made.

78.  Paragraph 39(4) makes provision for the circumstances where the National Assembly for Wales may approve proposals subject to the occurrence of a specified event. Regulations under this paragraph will prescribe the events which may be specified. These provisions are similar to those at 32(4) for England.

79.  Paragraph 40(3)(b) makes provision for the National Assembly to make regulations in circumstances where, following approval of its proposals, the CETW publishes further proposals which remove the duty to implement its earlier proposals made within the terms of schedule 7. As in paragraph 33(3) regulations will provide for the procedure to be followed and may modify Schedule 7.

80.  The regulations to be made under Schedule 7 will set out the procedural matters applying to publication of the LSC's and the CETW's proposals to close school sixth forms or discontinue 16-19 schools; to objections to the publication of the proposals, and to consideration and handling by decision-makers and will provide for modification to the Schedule in certain limited circumstances. Such essentially procedural matters are generally provided through regulations rather than in primary legislation and in the Department's view the negative resolution procedure is appropriate. Schedule 7 and the regulation-making powers in it are very similar to sections 28, 29, 31 and 33 of, and Schedule 6 to, the School Standards and Framework Act which makes provision for proposals for school organisation by local education authorities, governing bodies and promoters of new schools. Moreover, the Schedule 7 regulations will be very closely modelled upon, and indeed could take the form of an amendment to The Education (School Organisation Proposals) (England) Regulations 1999 and The Education (Maintained Special Schools) (England) Regulations 1999 (S.I.1999/2212) which address the procedural issues arising on proposals for school organisation made by local education authorities, governing bodies and promoters of new schools. These regulations were made under various provisions of the Schools Standards and Framework Act 1998 (in particular sections 28, 29, 31 and 32 and Schedule 6) all of which provide for the negative procedure for the regulations. It is appropriate to follow that precedent with the analogous regulations here in Schedule 7 of the Bill.

81.  As elsewhere, in Wales regulations will be subject to the National Assembly's own procedures.

SCHEDULE 8: AMENDMENTS

82.  Paragraph 2 of Schedule 8 amends section 1(3) of the Education (Fees and Awards) Act 1983, by adding a new paragraph (f). The Committee is referred to paragraph 173 of the Explanatory Note to the Bill for a description of the purpose and effect of this amendment.

83.  The new subsection (3)(f) contains a power for regulations to specify institutions or classes or descriptions of institutions which will fall within the new paragraph with the result that section 1 of the 1983 Act will apply to such institutions. The new subsection (3)(f) is similar to, and in a sense an extension of, the present subsections (3)(c) and (3A) (which were inserted by paragraph 91 of Schedule 12 to the Education Reform Act 1988) which contain, in subsection (3A), a similar regulation-making power. The Department takes the view that, as in the case of subsection (3A), specifying institutions or classes of institutions which are to fall within the new subsection (3)(f), being a matter of detail, is appropriate for regulations.

84.  By virtue of section 1(5) of the 1983 Act all regulations under section 1 of that Act are subject to negative resolution. The Department considers that negative resolution is equally appropriate to regulations under the new subsection (3)(f).

85.  Paragraph 6 amends section 22 of the 1992 FHE Act to change the Secretary of State's and the National Assembly's existing powers to modify the instruments and articles of government for FE corporations. The extended power will allow the Secretary of State or the National Assembly by Order to modify, revoke or replace instruments and articles of government for FE corporations. In respect of articles of government this is an entirely new power: previously the Secretary of State or the National Assembly could only direct corporations to modify their own articles of government. The Secretary of State and the National Assembly are required to consult corporations and the LSC or the CETW before making any such Order.

86.  This change is necessary to allow changes to the constitution of governing bodies as at present and, in particular, to allow the consolidation of past changes into new governing documents. Since the establishment of further education corporations in 1992 some 90 modifications have been made to instruments and some 105 to articles. As there is no power to revoke and replace the original instrument and articles, in many cases the authoritative text of instruments and articles may only be established by considering a series of modifications made over several years. This power is exercised by Order not subject to Parliamentary procedure because, by their nature, changes will not usually be known in advance, will be detailed applying often to individual colleges who will be consulted, and on occasion may need to be made quickly as circumstances demand.

87.  Paragraph 7 amends section 29 of the 1992 FHE Act to change the Secretary of State's and the National Assembly's existing powers to modify the instruments and articles of government for designated institutions. The extended power will allow the Secretary of State and the National Assembly by Order to modify, revoke or replace instruments and articles of government for designated institutions. The Secretary of State and the National Assembly are required to consult the governing body of the institution before making any such Order.

88.  This change is necessary to allow changes to the constitution of governing bodies as necessary and for the consolidation of changes into new documents, in the same way as for further education corporations. This power is exercised by Order not subject to Parliamentary procedure because, by their nature, changes will not usually be known in advance, will be detailed applying often to individual colleges who will have been consulted, and may need to be made quickly as circumstances demand.

89.  Paragraph 10 extends the Secretary of State's and the National Assembly's existing power under section 57 of the 1992 FHE Act to intervene where either is satisfied that there has been mismanagement at a college in the FE sector or if a governing body has failed to discharge a duty placed upon it by the Education Acts or has acted or proposes to act unreasonably in the exercise of its functions. intervention if the educational provision has been assessed by Her Majesty's Chief Inspector of schools in England, or ALI, or Her Majesty's Inspector of Education and Training in Wales, as being seriously weak or failing.

90.  The Secretary of State and the National Assembly may by Order remove any or all of the governors and appoint new governors to vacancies as they see fit or make directions to the governing body as they think expedient to the exercise of their powers and performance of their functions.

91.  It is essential where the Secretary of State or the National Assembly consider that an institution is being mismanaged, is failing to deliver the educational provision expected of it, is failing to discharge a statutory duty placed upon it, or is acting or proposing to act unreasonably in the exercise of its functions, that they should be able to intervene without delay. Orders might be detailed and relate to individual colleges. Parliamentary procedures would not be appropriate.

92.  Paragraph 26 amends section 408 of the Education Act 1996 which contains powers to make regulations, for use in England and Wales, requiring maintained schools, LEAs, governing bodies or head teachers to make information available generally or to prescribed persons. Relevant provisions to which section 408 relates include section 400 and section 401 of the Education Act 1996 and section 37 of the Education Act 1997, the current provisions enabling the approval of qualifications for use by those under 19. The amendment will bring external qualifications approved for use by those under 19 under clause 85 into scope.

93.  Currently various requirements are placed on schools, LEAs, governing bodies and head teachers to provide information about curriculum, educational provision and the achievement of pupils for instance in school leavers' reports and for the performance tables. Such information may need to include details about qualifications such as the number and grades of GCSEs achieved by the school leaver. It is important to ensure that these requirements are well founded.

94.  The amendment serves to continue a current provision. In England regulations under section 408 are subject to negative resolution. In Wales, an order will be subject to the National Assembly's own procedures as provided for in its standing orders under the Government of Wales Act 1998.


 
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