Clause 70: Proposals for the establishment of federated school

201.     This clause makes provision for a new school to be established as a federated school under a single governing body from its opening date. It ensures that such schools should be subject to the existing arrangements governing statutory proposals set out in Chapter 2 of the SSFA to establish new community, voluntary or foundation special schools.

Clause 71 and Schedule 10: Changes to existing procedures

202.     These provisions are designed to amend the procedure for dealing with statutory proposals for the establishment, alteration or discontinuance of schools in England. Schedule 6 to the SSFA 1998 is amended in relation to England to:

• allow comments of any kind, and not just objections to be made in response to consultations in addition to statutory objections;

• allow the local SOC to refer statutory proposals to the Schools Adjudicator for decision if they think it appropriate to do so, subject to regulations (for example, if a Committee is unable to decide a proposal because it has not been possible to achieve a quorum. This may occur if many members of a Committee have an interest in the result of a matter that is being decided and they withdraw from the discussion of the matter);

• provide that promoters of new foundation or voluntary schools (other than Church of England (CE) or Roman Catholic (RC) dioceses, who already have groups on the SOC) whose proposals are rejected by the SOC shall have the right of appeal to the Adjudicator;

• provide that the governing bodies of foundation and voluntary schools of a prescribed description who have published proposals of a prescribed description shall have the right of appeal to the Adjudicator if their proposals are rejected by the SOC (the intention is to apply this to popular schools which have published proposals to expand);

• allow the LEA to refer proposals to the SOC for decision if it thinks it appropriate to do so and subject to regulations (this is intended to cover the situation where the proposals can only be approved conditionally, and therefore need to go to the SOC, since an LEA cannot make conditional approvals);

• provide that proposals approved conditionally by the SOC or Adjudicator shall no longer be treated as rejected if the condition is not met by the specified date, but instead shall be considered afresh by whoever gave the conditional approval.

203.     Schedule 6 to the SSFA is amended in relation to Wales to:

• Provide that proposals approved conditionally by NAW shall no longer be treated as if the condition is not met by the specified date, but instead shall be considered afresh.

204.     Schedule 7 to the SSFA, dealing with the Secretary of State's powers to act in the case of an insufficiency or excess of school places in an area, is also amended as necessary in the same way.

205.     Schedule 7 to the LSA, dealing with procedures for inadequate sixth forms, is also amended to the same effect.

PART 6 - THE CURRICULUM IN ENGLAND

Preliminary

Clauses 72 and 73

206.     This Part re-enacts sections 350 to 368 of the EA 96 in their application to England, and thereby makes separate provision for a National Curriculum for England.

Clause 72: Interpretation of Part

207.     This lists the definitions of terms used later in the Chapter. They are mainly taken from the EA 96 except for:

• 'Foundation stage', which was a new stage introduced on a non-statutory basis in September 2000. It covers the period from age three to the end of the reception year in primary school. The foundation stage is organised in six areas of learning with early learning goals, which set out what most children are expected to achieve by the end of the foundation stage. The foundation stage is defined as a stage of the National Curriculum, but not as a key stage.

• 'Maintained nursery school', which is a school maintained by the LEA used mainly or wholly for the purpose of providing education for children who have attained the age of two but are under compulsory school age. It does not include a special school.

• 'Programmes of study', where the definition has been changed to mean the skills and processes which are required to be taught to pupils by the end of a key stage rather than during a key stage. This removes an implicit barrier in the legislation that pupils should only be taught material from the programme of study for their chronological age, making it clearer that teachers can allow pupils to proceed at a faster pace. Programmes of study are defined only in relation to key stages not the foundation stage.

Clause 73: Meaning of 'nursery education' and related expressions

208.     The inclusion of the foundation stage broadens the definition of the National Curriculum to include children below compulsory school age.

209.     This clause defines "nursery education" as education suitable for children below compulsory school age and defines "funded nursery education" as that provided by maintained schools, maintained nursery schools or by other providers who are receiving public funding to provide early years education.

General duties in respect of the curriculum

Clauses 74 to 76

Clauses 74 and 75: General requirements in relation to curriculum and duty to implement general requirements

210.     These clauses re-enact section 351 of the EA 96.

Clause 76: Basic curriculum for every maintained school in England

211.     This clause re-enacts section 352 of the EA 96, listing those elements (currently RE and sex education for certain pupils), which must be provided as part of the basic curriculum in addition to the National Curriculum.

212.     The clause provides for the inclusion of the foundation stage in the National Curriculum. This is done by changing the description of when the National Curriculum applies, so that it applies to children who have attained the age of three but are not over compulsory school age.

213.     There is a new order-making power to alter the reference to compulsory school age (currently 16) so this could be amended to make some elements of curriculum provision statutory beyond 16.

214.     There is also a new order making power for the Secretary of State to add to the list of further requirements, otherwise than in relation to RE or sex education. The power allows a new way to vary the curriculum requirements without affecting the National Curriculum, which has a distinct framework of key stages, attainment targets, programmes of study and assessment arrangements. This would enable new statutory requirements for 14-16 year olds to be introduced, such as community activities.

The National Curriculum for England

Clauses 77 to 85

Clause 77 and 78: The foundation stage; The key stages

215.     These clauses re-enact section 355 of the EA 96 and add the foundation stage to the National Curriculum. They set out the key stages in relation to a pupil, which are defined according to age. For example, key stage 2 begins when the majority of children in a pupil's class reach eight and ends when the majority of pupils in a class reach eleven.

216.     The foundation stage is defined as beginning when a child first receives publicly funded education on or after his or her third birthday and ending at the same time as the school year in which the child attains the age of five. Key stage 1 begins at the same time as the school year in which the child attains the age of six.

Clause 79: Curriculum requirements for the foundation stage

217.     This clause sets out the proposed content and structure of the foundation stage of the National Curriculum.

218.      The foundation stage comprises: early learning goals, which set out what most children are expected to achieve by the end of the foundation stage; six areas of learning; Curriculum guidance for the foundation stage, on which the education programmes of all publicly funded provision must be based; and a foundation stage profile, which assesses attainment at the end of the foundation stage. The foundation stage profile will summarise each child's progress in each area of learning and will provide substantial evaluative information about each child.

219.     The clause also gives the Secretary of State power to amend the areas of learning.

Clauses 80 to 82: The key stages in England and the power to alter or remove requirements for the fourth key stage

220.     Clauses 80 and 81 re-enact sections 353 and 354 of the EA 96, listing the subjects which are compulsory at each key stage and stating that the National Curriculum is to specify attainment targets, programmes of study and assessment arrangements in relation to each subject for each key stage. Clause 82 adds a broad power to alter or remove requirements for the fourth key stage.

221.     The requirements of the National Curriculum are now described separately in relation to the Foundation stage, key stages 1 to 3 and key stage 4. This will allow for different provisions to apply at each stage. Separating out key stage 4 from the others allows for new requirements for this age group to be introduced in the future.

Clause 83: Establishment of the National Curriculum for England by order

222.     This re-enacts section 356 of the EA 96 to include the foundation stage. The Secretary of State has order-making powers to specify in relation to each of the foundation stage areas of learning, early learning goals, educational programmes and assessment arrangements as appropriate; and in relation to the key stages the attainment targets, programmes of study and assessment arrangements which she considers appropriate for each subject

223.     It extends order making powers in relation to the foundation stage to include all providers who are currently receiving Government early years education funding.

Clause 84: Implementation of the National Curriculum for England in schools

224.     This re-enacts section 357 of the EA 96 to apply to England only. It places a duty on LEAs, governing bodies and head teachers to ensure that the National Curriculum is implemented in maintained schools. This includes a new duty in respect of primary schools as the National Curriculum now includes the foundation stage.

Clause 85: Implementation in respect of nursery schools etc

225.     This extends the duty to ensure that the foundation stage of the National Curriculum is implemented to include all providers who are receiving Government early years education funding.

The National Curriculum for England: special cases

Clauses 86 to 91

Clauses 86 to 91

226.     These clauses re-enact sections 362-367 of the EA 96 for England.

Supplementary provisions

Clause 92

Clause 92: Procedure for making certain orders and regulations

227.     This clause re-enacts section 368 of the EA 96 in its application to England. It sets out the procedures which must be followed when the Secretary of State proposes to make orders or regulations relating to certain National Curriculum provisions. She must refer her proposal to QCA, which will carry out a consultation on it and report back to the Secretary of State with the results of the consultation and their advice on it. QCA's report must be published, as must the Secretary of State's response. The Secretary of State must then publish and consult on a draft of the proposed order or regulations and a statement explaining her reasons if she is failing to give effect to any of QCA's recommendations. After that consultation period has closed, she may make the order or regulations with or without modifications.

PART 7 - THE CURRICULUM IN WALES

Preliminary

Clauses 93 and 94

228.     This Part re-enacts sections 350 to 368 of the EA 96 in their application to Wales, together with section 369 of that Act (which relates only to Wales). It thereby makes provision for a separate National Curriculum for Wales.

Clauses 93 and 94: Interpretation of Part; meaning of "nursery education" and related expressions

229.     These clauses are similar to clauses 72 and 73 except that they apply to Wales.

General duties in respect of the curriculum

Clauses 95 to 97

Clauses 95 and 96: General requirements in relation to the curriculum and duty to implement general requirements

230.     These clauses re-enact section 351 of the EA 96 except that clause 96 requires LEAs and governing bodies to have regard to NAW guidance in exercising any functions in relation to any forms of education added to the basic curriculum by an order under clause 97.

Clause 97: Basic curriculum for every maintained school in Wales

231.     This clause re-enacts section 352 of the EA 96, listing those elements (currently RE and sex education for certain pupils), which must be provided as part of the basic curriculum in addition to the National Curriculum for Wales.

232.     There is a new order making power for the NAW to add to the list further requirements, otherwise than in relation to RE or sex education. This new power also enables the NAW subsequently to amend or repeal anything that is added to the list of further requirements (apart from RE or sex education). The power allows a more flexible way to change statutory requirements than via the National Curriculum for Wales, which has a distinct framework of key stages, attainment targets, programmes of study and assessment arrangements. This would enable new statutory requirements for 14-16 year olds to be introduced. These would be different in nature from the academic subjects which now make up the National Curriculum for Wales.

The National Curriculum for Wales

Clauses 98 to 106

Clauses 98 and 99: The foundation stage; The key stages in Wales

233.     These clauses re-enact section 355 of the EA 96. They set out the key stages in relation to a pupil, which are defined according to age. For example key stage 2 begins when the majority of children in a pupil's class reach eight and ends when the majority of pupils in a class reach eleven. They also provide for the period of the new foundation stage of the National Curriculum for Wales to be set out in an order of the NAW.

Clause 100: Curriculum requirements for the foundation stage

234.     This is a new provision which provides that the foundation stage of the National Curriculum for Wales shall comprise areas of learning and, in respect of those areas, desirable outcomes, educational programmes and assessment arrangements. These are specified in an order made by the NAW under clause 104(2).

Clauses 101 to 103: The key stages in Wales and the power to alter or remove requirements for the fourth key stage

235.     Clauses 101 and 102 re-enact sections 353 and 354 of the EA 96, listing the subjects which are compulsory at each key stage, but in relation to key stages 1, 2 and 3 only and stating that the National Curriculum shall specify attainment targets, programmes of study and assessment arrangements in relation to each subject for each key stage. Clause 103 adds a broad power to alter or remove requirements for the fourth key stage.

236.     The requirements of the National Curriculum are now described separately in relation to the foundation stage, key stages 1 to 3 and key stage 4. This will allow for different provisions to apply at each stage. Separating out key stage 4 from the others allows for new requirements for this age group to be introduced in the future.

Clause 104: Establishment of the National Curriculum for Wales by order

237.     This largely re-enacts section 356 of the EA 96 for key stage 4. It requires the NAW, by order, to specify areas of learning in respect of the foundation stage of the National Curriculum for Wales, and (in relation to each of those areas of learning) desirable outcomes, educational programmes and assessment arrangements. Similarly it has power in relation to the 4 key stages to specify the attainment targets, programmes of study and assessment arrangements which it considers appropriate for each subject.

Clause 105: Implementation of the National Curriculum for Wales in schools

238.     This re-enacts section 357 of the EA 96 in relation to Wales. It places a duty on LEAs, governing bodies and head teachers to ensure that the National Curriculum for Wales is implemented in maintained schools. This includes a new duty in respect of primary schools with nursery pupils in respect of the foundation stage.

Clause 106: Implementation in respect of nursery schools etc.

239.     This extends the duty to ensure that the foundation stage of the National Curriculum is implemented to include head teachers, LEAs, and all providers who are currently receiving Government early years education funding.

The National Curriculum for Wales: special cases

Clauses 107 to 112

Clauses 107 to 112

240.     These clauses re-enact sections 362-367 of the EA 96 for Wales.

Supplementary provisions

Clauses 113 and 114

Clause 113: Procedure for making certain orders and regulations

241.     This clause requires the NAW to make such arrangements as it considers appropriate for consultation about proposals to make an order under section 99(4), 101(6), 104(2)(a) or (b)(i) or (ii) or (3)(a) or (b); or regulations under section 108.

Clause 114: Programmes of research etc in relation to Wales

This clause re-enacts section 369 of the EA 96 for Wales, which enables the NAW to fund research and development relating to its National Curriculum functions.

PART 8 - TEACHERS

Teachers' Pay and Conditions

Clauses 115 to 126

Clause 115 & Schedule 12: School Teachers' Review Body

242.     This clause affirms the continued existence of the School Teachers' Review Body (STRB) set up under the STPCA. The arrangements will continue to apply to England and Wales. The clause also provides that the members of the STRB will be appointed by the Secretary of State, rather than by the Prime Minister as under the STPCA. This will bring the appointment of members of the STRB into line with similar bodies, reflecting the general move away from Prime Ministerial appointments. The Chairman of the STRB will, however, continue to be appointed by the Prime Minister. Schedule 12 reflects consequential changes. The Schedule recasts Schedule 1 to the STPCA and makes minor simplifications and modifications to it. Matters covered are STRB membership, arrangements for the appointment of a chairman and deputy chairman, resignation and dismissal arrangements, payments to members and proceedings of the STRB.

Clause 116: Review Body: function

243.     Under this clause, the STRB will, as at present, report on school teachers' remuneration and related conditions of employment (professional duties and working time), at the request and under the direction of the Secretary of State, including on the timing of a report. Any such report will be sent to the Prime Minister and the Secretary of State and published.

Clause 117: Consultation by Review Body

244.     This clause requires bodies which the STRB deems it appropriate to consult to be notified of any referral to them by the Secretary of State. The 'relevant bodies' for consultation are LEA associations, LEAs, organisations representing governors of maintained schools, and bodies representing school teachers (teacher unions). These bodies must be given an opportunity to submit evidence and make representations. The STRB will be explicitly able to determine the way in which the relevant bodies are entitled to respond and may limit this as appropriate. For example, if the STRB considered it appropriate, some bodies could be permitted to respond in writing only.

245.     The clause also gives the Secretary of State a formal entitlement to submit evidence and make representations. This has been accepted practice hitherto.

Clause 118: Power to prescribe pay and conditions

246.     This clause enables the Secretary of State to make orders determining school teachers' pay, working time and professional duties. This replicates the existing structure whereby such orders legally define school teachers' conditions of employment by reference to a document. As at present, school teachers must be paid only in accordance with such orders and nothing in a teacher's contract which is prohibited by or inconsistent with an order will be effective.

247.     The clause also defines 'school teacher'. A school teacher provides primary or secondary education under a contract of employment or a contract for services, where the other party to the contract is the governing body of a maintained school or an LEA. This includes teachers who are self-employed, but excludes those who are employed by an agency such as a teacher supply agency. A school teacher will either be a qualified teacher, as defined elsewhere under regulation; or unqualified, as prescribed by order. The latter category will encompass overseas-trained teachers, instructors, and those following the Graduate or Registered Teacher Programme routes. Those employed by local authorities for social services purposes are excluded from the definition.

Clause 119: Order under section 118: scope

248.     This clause sets out some specific matters which the orders under the previous clause may cover. It is not an exhaustive list. An order may confer discretions on LEAs or governing bodies. It may also confer a function on the Secretary of State or on another person who has agreed to carry it out. This may cover matters such as assessments or the exercise of a discretion. In practice this would include arrangements such as those relating to threshold or fast track assessment. An order may also require that any guidance issued relating to such matters is taken into account. Appeals rights may also be set out in an order.

249.     Orders may also enable a teacher's pay to be set with regard to qualifications, experiences, duties, skills or previous salary, though this does not exclude other factors from being taken into account. The reference to previous salary is to make clear that there are, for example, powers to safeguard teachers' previous teaching salary in certain specific cases where they have moved to other posts, such as where there are statutory school closures or reorganisations. Limits on payments may be set and certain provisions may be applied to certain schools. For example, there are at present special arrangements for calculating the pay of head teachers of special schools.

250.     Retrospective provision is allowed by order under this clause, but not so as to reduce a teacher's remuneration, or alter a teacher's conditions of employment to his or her disadvantage, prior to the order. Orders may also specify that certain matters are not to be treated as remuneration, or related to professional duties or working time. This will enable it to be made clear that certain conditions of employment should be determined locally.

Clause 120: Order under section 118: supplemental

251.     This clause provides for an order made under clause 118 to make provision through a document, which must also be published. This means that current practice, whereby a document which sets out all appropriate pay and conditions requirements, and which is brought into effect by a pay order, can continue.

Clause 121: Reference to Review Body

252.     This clause sets out the circumstances in which the Secretary of State may make an order under clause 118. Usually, as at present, the provision in an order will follow a request for a report to the STRB, and the STRB's response. But the clause also makes some changes to the Secretary of State's powers. At present, the STPCA allows the Secretary of State to make orders relating to matters which she does not consider so significant as to require referral to the STRB. The clause here enables the Secretary of State to make an order where the matter concerned is subsidiary; or where the STRB's chairman is consulted on disapplying the provision requiring detailed consideration by the STRB.

253.     The clause explains what 'subsidiary' means for this purpose. It will cover the standards which the Secretary of State may set for different classes of teachers - for example, Advanced Skills Teachers - and criteria for progression from one pay scale to another - this would cover movement from the main pay scale to the upper pay scale following threshold assessment. (It should be noted that this does not mean that the Secretary of State will take decisions without involving the STRB on whether such categories of teachers or such pay scales should exist at all.)

254.     Minor but necessary amendments could in future also be made to pay orders without reference back to the STRB in order to cover issues arising from the implementation of their recommendations, for example to ensure that groups of teachers are not disadvantaged, or to make recommendations work in practice. This might cover matters such as the complex arrangements necessary for the payment of recruitment and retention allowances, and assimilation arrangements resulting from changes to the pay structure. The matters might also be those which are minor in policy effect and therefore do not need to be subject to the full rigour of the STRB process, such as a desirable adjustment following on from a main policy or an interpretation of the intention, for example a change in the way training days are calculated to enable teachers to be paid for additional training undertaken in the evenings.

255.     The clause also gives the Secretary of State the power to determine that a particular provision should be subsidiary, or cease to be subsidiary, and take into account the opinion of another when so doing. Clause 195 makes provision for such a determination to be exercisable only by affirmative resolution.

Clause 122: Consultation by the Secretary of State

256.     This clause requires the Secretary of State to consult appropriate bodies before making any order under clause 118. The relevant bodies are again LEAs and LEA associations, governor bodies, and bodies representing school teachers (teacher unions). Consultation with relevant bodies takes place under existing arrangements and is an important part of the review process.