CLAUSE BY CLAUSE ANALYSIS
OF DELEGATED POWERS (Clause 132)
Clause 132: Transitional
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
(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:
requirement for a meeting to be quorate;
rights of external members of delegated committees;
requirement to keep records of meetings;
access to minutes; and
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
(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:
before taking decisions;
decisions and provide other prescribed information; and
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.
(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
(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
(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
(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
(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:
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));
should be consulted about a modification to a statutory proposal
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;
the date of publication of statutory proposals should be determined
may request modifications to statutory proposals and who should
be consulted about such modifications (paragraph 5(2));
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:
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)).
who must be consulted about a modification to a statutory proposal
who may request modifications to statutory proposals and who should
be consulted about such modifications (Paragraph 10(2)).
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.
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.
3(5)(b) mirrors 2(5)(b) but in respect of an insufficiency
of school places.
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
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.
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.
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
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
Schedule 8: Changes of
category of school
(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.
(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.
(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
procedure a governing body should adopt when appointing parent
governors (paragraph 4(b));
partnership governors must be nominated and appointed (paragraph
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));
appointment of foundation governors to act in place of ex officio
foundation governors in specified circumstances (paragraph
removal of excess governors (except foundation governors) where
that excess is not eliminated by the appropriate number resigning
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
Schedule 10: Incorporation
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.
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
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.
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.
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.
1(8) allows for regulations to make provision for the school
government aspects of transition to the new framework of new schools.
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
214. The provisions
will be technical and detailed and, being transitional, will have
a limited life span. They are therefore suitable for secondary
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
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
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:
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
qualifications and disqualifications for holding office; the term
of office; the resignation or removal of governors;
and proceedings of governing bodies (including allowing or requiring
governing bodies to determine provision); and
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.
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
(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
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
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.
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
Schedules 16 and 17:
Staffing of schools in the new framework
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
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
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
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.
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
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.
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
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.
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.
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.
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).
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
(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.
(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
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.
(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
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
(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.
(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
(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