House of Commons - Explanatory Note
Education Bill - continued          House of Commons

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Clause 123: Guidance

257.     This clause enables the Secretary of State to issue guidance on how any order made under clause 118 should be put into practice, and requires LEAs and governing bodies to have regard to it. There must be consultation with the usual parties (as above) before any guidance may be issued. LEAs and governing bodies are expected to follow such guidance, and this clause provides that a court or tribunal could take failure to do so into account in any proceedings.

Clause 124: Education action zone

258.     As at present under the SSFA, this clause entitles the governing body of a school in an EAZ to seek permission from the Secretary of State for it to determine the pay and conditions of the teachers at its school. This must, as at present, follow consultation with all the teachers at its school. The clause provides a new power for the Secretary of State to make regulations to deal with the situation which could arise if the opt out should end for a particular reason.

Clause 125: Transfer of employment

259.     This clause carries forward the current arrangements about Transfer of Undertakings and provides that pay and conditions orders shall not apply to any teacher of a previously independent school which becomes a maintained school, including a maintained nursery school, except at the request of the teacher.

Clause 126: Repeal

260.     This clause repeals the STPCA. As described above, most of the STPCA is being re-enacted in the new legislation, with minor modifications where necessary.

School Teachers' Appraisal

Clause 127

Clause 127: Appraisal

261.     This clause updates existing powers under Section 49 of the Education Act 1986 (EA 86) under which the Secretary of State, or NAW, may make regulations requiring appraisal of the performance of schoolteachers employed under national pay and conditions and teachers in FE. Further, this clause makes explicit: that the regulations can impose duties on specified groups of people in relation to the appraisal of teachers' performance; that the appraisal process may involve the exercise of a discretion conferred on persons identified in the regulations, for example, head teachers, governors and those teachers appointed by the headteacher to review performance; and that schools may use appraisal data in pay decisions. Before making regulations under this section the Secretary of State will consult bodies which she thinks appropriate. This clause repeals section 49 of the EA 86.

School teachers' qualifications

Clauses 128 to 131

Clause 128: Qualified teacher status

262.     This clause and clause 129 re-enact and amend section 218 (1)(a) and (2) of the Education Reform Act 1988 (ERA) by defining the term 'qualified teacher'. It provides that the Secretary of State continues to have the power to determine who is a qualified teacher and recognise the equivalence of teaching qualifications gained abroad.

Clause 129: Requirement to be qualified

263.     Under this clause the Secretary of State may set out in secondary legislation the work that may be carried out in a school only by a qualified teacher, and the work that may be carried out by support staff and unqualified teachers. This clause could enable an unqualified teacher to teach in circumstances approved by a qualified teacher.

Clause 130: Requirement to be registered

264.     Under this clause, the Secretary of State may by regulations provide that a specified activity may be carried out in a school maintained by an LEA or a non-maintained special school by a qualified teacher only where that teacher is registered with full registration with the General Teaching Council (GTC) for England or for Wales. It also provides that a trainee teacher may undertake a specified course of training leading to qualified teacher status only where that teacher is registered with provisional registration with the GTC for England or for Wales. In addition provisional registration may be required of unqualified teachers undertaking specified work in schools.

Clause 131: Head teachers

265.     This clause provides that the Secretary of State may by regulations make it compulsory for persons serving as head teachers to be qualified teachers. Also the Secretary of State may by regulations make it compulsory for head teachers to hold a specified qualification if they are appointed on or after the date when the regulations come into force.

Further education

Clauses 132 to 136

Clause 132: Provision of education

266.     This clause enables the Secretary of State to make regulations which have the effect of requiring FE lecturers to have a specified qualification and which can require lecturers to serve a probationary period. This clause re-enacts section 218(1)(a), (c) and (d) of the ERA with amendments.

Clause 133: Principals of further education institutions

267.     This clause provides that the Secretary of State may make regulations making it compulsory for the principal of an FE college to have a specified qualification, which could include an induction programme. The regulations may allow a person to serve as principal while he is undertaking the induction programme.

Clause 134: Training in provision of further education

268.     This clause enables the Secretary of State to make regulations regulating the provision of courses which lead to a teaching qualification for an FE lecturer or an FE principal qualification under clauses 132 and 133. This clause makes provision similar to that in section 218(9)(b) and (c) of the ERA.

Clause 135: Wales: provision of higher education

269.     This clause allows the NAW to make regulations relating to the provision of courses of higher education at FE institutions in Wales. The clause re-enacts section 218(9)(d) of the ERA so as to enable regulations to prohibit provision of such courses without the NAW's approval and to regulate the numbers and categories of students on such courses. This provision will assist the NAW to assist in the planning of post 16 learning provision in Wales.

Clause 136: Further education: general

This clause includes a definition of "education" which applies to clauses 132-136. This definition includes certain types of training and reflects part of the definition of "further education" in the EA 96.

Health and fitness

Clause 137

Clause 137: Health and fitness

270.     This clause re-enacts section 218(5) of the ERA with a minor amendment. The Secretary of State continues to have power to impose requirements as to the health and physical capacity of persons such as teachers in schools and further education institutions. In addition the Secretary of State may impose requirements as to the health and physical capacity of persons who are employed by LEAs or governing bodies otherwise than as teachers and who are regularly in contact with persons aged under 18. Section 218(5) of the ERA refers to persons aged under 19.

Misconduct etc.

Clauses 138 and 139

Clause 138: Prohibition from teaching etc.

271.     This clause re-enacts and modifies the Secretary of State's power in section 218(6) of the ERA to prohibit or restrict employment. The Secretary of State and , in Wales, the Secretary of State and the NAW acting concurrently continue to have power to make directions prohibiting a person from carrying out work, in education or in relation to schools, that brings the person regularly into contact with children aged under 18 years old (the current provision refers to persons aged under 19). The clause provides the Secretary of State and the NAW with the power to prevent a person from working for a company exercising functions on behalf of a local education authority and to prevent a person from taking part in the management of an independent school.

272.     Under the current law, the Secretary of State and the NAW can prohibit or restrict someone's employment on grounds of his misconduct; that he is unsuitable to work with children; that he is included permanently on the list of people considered unsuitable to work with children that is kept by the Secretary of State for Health under the Protection of Children Act 1999 (POCA), or on medical grounds. The Secretary of State and the NAW also have power to direct that a person may not take part in the management of an independent school on grounds of that person's professional incompetence. The power to make directions on educational grounds is to be repealed. The Secretary of State and the NAW have power to revoke or vary a direction. Provision is made for the procedure for making directions to be set out in regulations.

Clause 139: Directions under section 138: appeal

273.     This clause partially re-enacts section 218A of the ERA to allow a person who is subject to a direction under clause 138 to appeal against a decision to make a direction or not to revoke or vary a direction. It provides for appeals to be heard by the Tribunal established under section 9 of the POCA. The Secretary of State or the NAW may make regulations preventing an appeal being made on the grounds that the person did not commit an offence of which he has been convicted. Regulations may also set out the circumstances in which the Tribunal will allow an appeal, and the procedure to be followed in an appeal.

Sections 128 to 137: general

Clauses 140 to 142

Clause 140: Specification of qualification or course

274.     Regulations made in relation to teachers' qualifications may refer to initial teacher training (ITT) courses at accredited institutions and may confer a discretion on the Teacher Training Agency or Higher Education Funding Council for Wales, or other specified persons or bodies. The regulations may also impose a duty on the Teacher Training Agency. The Secretary of State has to consult the GTC about any changes to such courses.

Clause 141: Wales

275.     This interpretative provision ensures that the Secretary of State's powers under clauses 128 to 137 will continue to be exercised on a devolved basis in Wales.

Clause 142: Repeal

276.     This clause repeals sections 218 and 218A of the ERA.

1999 Pay document

Clause 143

Clause 143: Application of pay-scale

277.     School teachers' pay and conditions are determined under the provisions of the STPCA, and set out in the School Teachers' Pay and Conditions Document which is updated as of September each year. Until 31 August 1999, the school teachers' pay spine comprised 18 points, numbered 0 to 17. Two points were awarded for possession of a good honours degree, and points were awarded incrementally for years of experience up to a total of 9 points for both qualifications and experience. Points could also be awarded on the basis of other criteria. Newly qualified teachers normally started on point 0 or point 2, depending upon whether or not they were a good honours graduate.

278.     With effect from 1 September 1999, point 0 was removed and the differential for good honours degrees reduced to 1 point for new entrants. Subsequently, the Department formed the view that the legal effect of the amendments was uncertain. The Department sought to remedy this by means of a remedial order, which took effect on 1 April 2000. However the Department believes that the order did not resolve the matter fully. This clause now seeks to tidy up the way in which point 0 was removed in order to ensure that all teachers' true lawful pay entitlement is clearly the entitlement intended in the 1999 and subsequent School Teachers' Pay and Conditions Documents. The provisions should work in practice by making no difference to teachers' pay.

General Teaching Councils for England and Wales

Clause 144

Clause 144 and Schedule 13: The General Teaching Councils

279.     This Schedule amends section 2 of the Teaching and Higher Education Act 1998 (THEA) by extending the existing advisory functions of the GTCs for England and for Wales.

280.     The Schedule amends section 3 of the THEA (relating to the registration of teachers with the GTCs for England and for Wales) giving the Secretary of State power to introduce a new category of provisional registration of teachers. Eligibility for such registration will be defined in the regulations, and is expected to apply to trainee teachers and teachers from overseas. Registration for teachers with qualified teacher status is consequently redefined as "full" registration.

281.     The Schedule also provides that a person will not be eligible for registration, whether full or provisional, unless he or she has been judged by the GTCs as suitable to be a teacher. It will be for the GTCs to determine suitability. They might, for example, wish to satisfy themselves as to the good character of individuals by means of criminal record checks and character references for overseas teachers. Amendments to the Police Act 1997 will provide that the GTCs have access to criminal records. The GTCs will exercise their functions on the assessment of suitability at the point that a person applies to become provisionally registered or re-registered; or fully registered or re-registered.

282.     The Schedule provides for a right of appeal to the High Court against a refusal of an application for registration on the grounds of suitability. The power to make regulations in section 4 of the THEA is extended so that an applicant so refused may be informed of the reasons for the decision and of his or her right of appeal.

283.     Section 4 of the THEA is also amended to provide that the GTCs, in setting the level of the fee, should have regard to expenditure on all their functions, including registration.

284.     The Schedule extends the functions of the GTCs to include activities designed to promote the standing of the teaching profession.

285.     The Schedule amends Schedule 1 to the THEA to allow the Secretary of State and the NAW by order to amend certain provisions of Schedule 1 with a view to removing or relaxing the controls which they exercise over the GTCs for England and Wales respectively - for example, to remove the need for their consent to the borrowing of money by the GTCs, or to the provision of pension schemes.

286.     The Schedule amends Schedule 2 to the THEA to allow the GTCs to attach conditions to any suspension order made in relation to a teacher against whom they bring disciplinary proceedings. Where a suspension order is made, the teacher's name is removed from the register. Under the amendment, the teacher would be required to comply with any conditions - for example, to undertake a course of counselling - before he or she is eligible to be registered again.

287.     The Schedule also amends Schedule 2 to the THEA to provide that references to registration mean either full or provisional registration.



Clauses 145 to 148

Clauses 145 and 146: Duties of LEA in respect of childcare; Early years development partnerships and plans

Early Years Development Partnerships were established by section 119 of the SSFA to plan and co-ordinate Early Years Education in each LEA area. In May 1998, on a non-statutory basis, Partnerships took on the additional role of planning and co-ordinating childcare and the newly formed Early Years Development and Childcare Partnerships (EYDCPs) commenced operation in April 1999.

288.     Clause 145 inserts into the SSFA a new section 118A which places a duty on LEAs to carry out annual reviews of childcare provision in their area and establish and maintain an information service on childcare and other related services. LEAs must have regard to any guidance issued by the Secretary of State, or NAW, in carrying out these duties.

289.     Section 19 of the CA requires local authorities to review the provision of day care and childminding within their area. Clause 145 now incorporates these requirements and therefore section 19 is to be repealed with respect to England and Wales only.

290.     The amendments made by clause 146 ensure that EYDCPs must work with LEAs to review the sufficiency of childcare provision in the area and to prepare and publish a plan, for approval by the Secretary of State, or NAW, in respect of both nursery and childcare provision. LEAs are currently undertaking this work on a statutory basis for early years provision and on a non statutory basis for childcare provision.

291.     This clause also changes the name Early Years Development Partnership to Early Years Development and Childcare Partnership. This name is already in use by the LEAs and the Partnerships.

Clause 147: Childcare functions of HMCI and the Welsh Assembly

292.     The Tax Credits Bill includes provision which will enable certain costs incurred on childcare to be taken into account in calculating an individual's entitlement to certain tax credits. The Bill makes provision for the relevant childcare costs to be identified. The providers of the childcare will have to be approved in accordance with a scheme set out in the regulations.

293.     This clause allows the Secretary of State, by order, to confer on HMCI whatever functions are necessary or expedient to allow HMCI to be able to operate a childcare scheme set out in regulations made under the Tax Credits Act (when enacted). Functions are conferred on HMCI by Part 10A of the CA with regard to regulation and inspection of childcare in England. These may not extend to all functions that may be needed to operate a childcare scheme. This provision enables additional functions to be conferred for that purpose.

294.     It also allows the NAW to have additional functions specified in regulations made by the NAW which are necessary or expedient to allow the NAW to operate a childcare scheme under the Tax Credits Act (when enacted). Such regulations may only specify functions corresponding to those conferred by the Secretary of State on HMCI under the preceding subsection.

Clause 148 and Schedule 14: Regulation of child minding and day care

295.     Schedule 14 amends Part 10A of and Schedule 9A to the CA. Part 10A of the CA was inserted by section 79 of the Care Standards Act 2000 and transferred the function of regulating persons who act as child minders or who provide day care from local authorities to HMCI in England and the NAW in Wales. The amendments proposed include:

  • Consent to checks on suitability: The registration authority (HMCI in England and the NAW in Wales) is required under the CA to determine whether a person is qualified for registration as a child minder or a provider of day care. A person is so qualified if he is suitable to look after children under the age of eight and if his "associates" are suitable to look after or (as the case may be) to be in regular contact with children under the age of eight. "Associates" in this context means persons who look after children on premises on which child minding or day care takes place, persons who live or are employed on the premises (in the case of child minding) or who live and work on the premises (in the case of day care). As part of this assessment of a person's suitability, the registration authority will need to carry out certain checks (eg criminal record checks) on individuals. This provision permits the registration authority to treat failure by a person or his associates to give consent to a check as a ground on which it may conclude that the person in question is not suitable and consequently that a person is not qualified for registration.

  • Suspension of registration: An amendment to section 79H of the CA will ensure that a person whose registration is suspended under regulations made by virtue of that section, but who continues to operate as a childminder or day care provider, will, in the absence of reasonable excuse, be committing an offence in the same way as a person who acts as a childminder or provides day care without being registered.

  • Rights of appeal in relation to registration: An amendment to section 79M of the CA permits the matters which may be brought before the tribunal established under section 9 of the POCA (the Care Standards Tribunal (CST)) to be extended. This provision gives the Secretary of State and NAW the power to prescribe in regulations additional decisions arising under Part 10A which may be appealed to the CST. For example, decisions on the issue of certificates of suitability for persons working with children over the age of seven under section 79W of the CA cannot be appealed to the CST at present, but would be able to be included through regulations made under the proposed provision.

  • Inspections by HMCI: An amendment to section 79Q of the CA allows the inspections to be carried out either by the Chief Inspector or a registered inspector (as allowed for in the powers of delegation available to the Chief Inspector in the SIA). This provision applies to England only.

  • Rights of entry: An amendment to section 79U of the CA will ensure that an inspector is acting on the registration authority before he or she has the right of entry. Existing legislation gives right of entry to inspectors by virtue of being registered alone.

  • Disqualification for registration: An amendment to Schedule 9A of the CA will introduce a power for regulations to be made permitting the registration authority to waive disqualification for registration where a person has disclosed to the registration authority a matter (eg criminal conviction) which would under existing regulations lead to that person's disqualification. If the registration authority withdraws its consent to registration, a person will once more be disqualified. It is intended that the registration authority will give consent where it considers the reason for disqualification irrelevant to registration. This power was previously available to local authorities when they were responsible for registration and inspection.

  • The Schedule also includes amendments to sections 113 and 115 of the Police Act 1997 which provide, respectively, for the issue of criminal record certificates and enhanced criminal record certificates. These amendments make three main changes to existing legislation. First, they ensure that when a criminal record certificate is applied for under section 113 as part of the registration authority's assessment of a person's suitability certain additional matters specific to a person's suitability to work with children (such as whether a person is included in the list kept under section 1 of the POCA) can be obtained not only in relation to persons applying to be registered, or already registered, but also in relation to their "associates" (as defined in the first bullet of this paragraph above). At present the legislation only permits this in relation to the former categories. Second, the amendments provide that the enhanced criminal record certificate (under section 115), as well as the criminal record certificate (under section 113), can contain the additional matters specific to a person's suitability to work with children, where such a certificate is applied for in connection with registration under Part 10A. Third, the amendments provide that a criminal record certificate and an enhanced criminal record certificate (including the additional matters referred to above) can be obtained in relation to an applicant for, or a holder of, a certificate under section 79W and his associates. Section 79W applies, broadly, to a person who looks after or provides care to children over the age of seven and under the age of 15 or, in the case of disabled children, 17.

Nursery Education

Clauses 149 to 152

Clause 149: Powers of LEA in respect of funded nursery education

296.     This clause provides that where, in the exercise of the duty (to ensure provision of nursery education in their area) imposed on them by section 118 of SSFA, LEAs make financial assistance available to providers of nursery education, they must take account of any guidance which may be issued by the Secretary of State, or in the case of Wales, the NAW.

297.     The guidance may set out specified conditions that providers of nursery education must meet. If they fail to meet such conditions, then repayment of any financial assistance made to them by the LEA may be required.

Clause 150: Establishment or alteration of maintained nursery schools

298.     This clause amends section 28(1) of the SSFA to provide that if an LEA wishes to establish a maintained nursery school it must publish proposals to do so. LEAs must already publish proposals if they wish to close a nursery school or establish a community or foundation school.

299.     For Wales, the clause also amends section 28 of the SSFA to require an LEA to publish proposals to make any prescribed alteration to a maintained nursery school. Alterations to be prescribed as requiring the publication of proposals are likely to include changes in the main language of instruction, relocation to a new site, and significant enlargement.

Clause 151 and Schedule 15: Inspection of nursery education

300.     This clause gives effect to Schedule 15 which amends Schedule 26 to the SSFA. The amendments cover the following:

  • Conduct of inspections by Inspectorate: Nursery education is currently inspected by registered nursery inspectors, i.e. inspectors of nursery education placed on a register by the HMCI in England or Her Majesty's Chief Inspector of Education and Training in Wales (each referred to here as the "Chief Inspector"). The conditions governing such an inspector's registration, removal from the register, appeal rights, etc. are contained in Schedule 26 to the SSFA. The amendments make two main changes to the current regime. First, the amendment permits inspection to be carried either by members of the inspectorate, which includes the Chief Inspector and his employees or by registered nursery inspectors. This means that, for example, in relation to England, HMCI can use Ofsted employees (in particular, suitably qualified child care inspectors) to carry out such inspections without them having also to comply with provisions relating to registration which are inappropriate to an employee's status. Second, the amendments change the regime applying to registered nursery inspectors in order to give the Chief Inspector more control over who is placed on the register. At present, anyone may apply for registration and has a right to have his application considered and then to be registered if he fulfils statutory criteria.

  • Appeals: The Registered Nursery Inspector's Tribunal (RNIT) established by Schedule 26 to the SSFA, currently hears any appeal against the removal of a registered nursery inspector from the register, as well as a refusal to renew registration and any imposition or variation in conditions attaching to registration. Under Part 10A of the CA, the Tribunal established by section 9 of the POCA (the CST), when it is set up, will hear any appeal against the removal of early years child care inspectors from the register. This provision will enable registered nursery inspector appeals to be heard in England by the CST rather than the RNIT, giving a single point for appeals from early years child care inspectors and registered nursery inspectors against, among other matters, removal from the two registers.

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Prepared: 26 November 2001