Appendix 6
Note by the Committee's Legal Adviser
Regulatory Reform (Voluntary Aided Schools Liabilities
and Funding) (England) Order 2002
Drafting points
Art.4
Why has "payable" been changed to "paid"
in the final words in quotes? The provision surely needs to apply
where expenditure is met initially from funds provided by the
LEA as well as where the governing body use such funds to reimburse
themselves for past expenditure.
Art. 7(a)(i)
Does this need to cover expenditure by the governing
body of implementing proposals under s. 28(2) (making a prescribed
alteration)? If so, "by virtue of this Schedule" seems
too narrow.
Art. 7(a)(ii)
The same words seem inapt here, as there is nothing
in Schedule 3 requiring a 'relevant body' to incur any expenditure.
Why have the existing words "on behalf of the governing body"
been changed?
Art 7 (d)
I assume the omission of "repairs" from
new paragraph 5(5) in Schedule 3 is deliberate (although I note
the Statement refers to 'capital repairs' (governors' liability)
and ' revenue repairs' (LEA liability). The department might be
asked to confirm.
Art 7(e)
Why has "expenses" in paragraph 5(11) (which
seems correct) been changed to "expenditure"?
Art. 9(1)(a)
Why has the expression "initial expenses"
been changed? This seems unnecessary, makes the cross-heading
inapt and may create an unintended ambiguity in the references
to "that expenditure" following sub-paragraph (a).
Art.9(d)
The reference to "(b)" is wrong. The words
concerned follow that sub-paragraph.
Art. 11
Why is this limited to caretakers' dwellings? What
parts of VA school premises does the LEA own?
Art. 11(1) and (2) needs
to be tied to land forming part of the premises of a particular
VA school; and 'commencement date' needs defining in Schedule
22.
The drafting of this paragraph might be improved
in a number of respects.
Art. 12
In line 1 "capital expenditure" should
be in quotes and "expenditure on" should be inserted
after "means".
At the end of paragraph (2) why is the expression
"expenditure for capital purposes" used instead of "capital
expenditure"?
In paragraph (3)(b) the meaning of "generally
recognised" is unclear (but since the practices need not
appear in a published code this element seems to add nothing),
nor is it clear by whom the practices are to be regarded as proper,
nor whether the last 7 words qualify "accounts" or "local
authorities", nor what "the description concerned"
means.
"Schedule" in paragraph (4) should read
"article". The drafting of this paragraph could be improved.
In paragraph (5) "Sub-paragraphs" should
read "Paragraphs" and "under" should read
"in". It would be better if "an order of the kind
mentioned [in] section 4(4) of that Act" read "a subordinate
provisions order (within the meaning of section 4(4) of that Act)
made in respect of those provisions".
Art. 13
The meaning of "approved" is not clear,
as paragraph 5 of Schedule 3 does not provide for obtaining approval:
and the amendments to paragraphs 5(3)(a) and 6(5) make a nonsense
of the existing references to 100% grant. The need for the amendment
to paragraph 6(5) is not clear.
Art.14
"Approved" again. Why does this refer to
alterations (which remain the responsibility of the governing
body)? The drafting might be improved.
Art. 15
What is the purpose of this? The LEA are responsible
for this expenditure before and after the Order, so it appears
to have the effect of limiting that responsibility to cases where
a Supplementary Credit Approval has been issued. That seems odd.
Art. 16
Apart from grammatical errors, it is not clear how
one is to know what works "are related to" the article
15 works.
The Explanatory Note might be improved -
_ third paragraph,
in the second sentence the reference to paragraph 6(2) does not
work, since it concerns promoters of new schools not governing
bodies;
_ fourth paragraph,
"necessary to conform" should read "necessary to
ensure that the school premises conform";
_ fifth paragraph,
this needs amplifying to explain what is meant by "proposals"
and instead of "buildings that form part of school premises
but are not school buildings" (the meaning of which is clear
only to a reader familiar with the technical meaning of these
terms) it would be more helpful simply to identify the buildings
referred to.
_ eighth paragraph,
should explain more clearly the effect of the transitional provisions;
- ninth paragraph, an explanation of the meaning
given to "capital expenditure" would more helpfully
appear in paragraph two, and this paragraph should indicate that
the order specifies that a subordinate provisions order will be
subject to negative resolution procedure.
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