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These notes relate to the Lords Amendments to the Education and Skills Bill, as brought from the House of Lords on 11th November 2008 [Bill 164]

EDUCATION AND SKILLS BILL


EXPLANATORY NOTES ON LORDS AMENDMENTS

INTRODUCTION

1.     These explanatory notes relate to the Lords Amendments to the Education and Skills Bill, as brought from the House of Lords on 11th November 2008. They have been prepared by the Department for Children, Schools and Families and the Department for Innovation, Universities and Skills in order to assist the reader of the Bill and the Lords Amendments and to help inform debate on the Lords Amendments. They do not form part of the Bill and have not been endorsed by Parliament.

2.     These notes, like the Lords Amendments themselves, refer to HL Bill 58, the Bill as first printed for the Lords.

3.     These notes need to be read in conjunction with the Lords Amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Lords Amendments.

4.     All the Lords Amendments were in the name of the Minister. Amendments 171, 172, 183, 184, 187, 189, 208 and 214 were in the names of both the Minister and non-Government Peers.

COMMENTARY ON LORDS AMENDMENTS

Lords Amendments 1 to 23 and 38: Employer appeals

5.     Amendments 1 to 23 and 38 will create a means by which employers can object to a penalty notice given under clauses 22 or 28 in the first instance, and appeal against such a penalty notice to the First-tier Tribunal, in the second instance. These amendments were tabled in response to recommendations made by the House of Lords Select Committee on the Constitution.

6.     Amendments 1, 11 and 12 will require such a penalty notice, or an enforcement notice given under clause 27, to state particulars of the reason why it was given.

7.     Amendments 2 and 13 will require a penalty notice to explain the steps that an employer would need to take in order to object to or appeal against it.

Bill 164-EN     54/3

8.     Amendments 3 and 16 will allow an employer to object to a penalty notice within two weeks of being given the notice. The local education authority will have to consider the employer’s notice of objection and either withdraw the penalty notice, reduce the amount of the penalty (if the amount was incorrect) or confirm the penalty notice. The local education authority will have to notify the employer of its decision within a prescribed time period.

9.     Amendment 4 will enable an employer to appeal to the First-tier Tribunal against a penalty notice given under clause 22. The employer could appeal on the grounds that: they did not commit the contravention stated in the penalty notice; the circumstances in which the contravention took place make the penalty notice unreasonable; or the amount stated in the penalty notice is too high. Any appeal would have to be made within the time limit set by the Tribunal Procedure Rules under paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal would have the power to: allow the appeal and cancel the penalty notice; replace the penalty with a smaller amount (if the amount was incorrect); or dismiss the appeal.

10.     Amendment 17 makes similar provision about appealing against a penalty notice given under clause 28 (as a result of a failure relating to an enforcement notice under clause 27), except that the grounds for appeal also include the ground that the employer did not commit the contravention stated in the enforcement notice.

11.     The local education authority will be able to withdraw a penalty notice given under clauses 22 or 28, even if no objection is made, but, as a result of Amendments 5, 6, 18 and 19, these powers will cease when any appeal against the penalty notice is determined. Similarly, as a result of Amendments 14 and 15, the power to withdraw an enforcement notice given under clause 27 will cease, if a penalty notice is issued in connection with it, when any appeal against the penalty notice is determined.

12.     Amendments 7 to 9 and 20 to 22 provide that, if a penalty is reduced or withdrawn, any sums of money already paid must be repaid to the employer with interest at the appropriate rate.

13.     Amendments 10 and 23 make drafting changes. Amendment 38 requires a local education authority to give an employer notice of the outcome of an objection or appeal before taking steps to recover a financial penalty imposed under clause 22 or 28.

14.     The Government considers that the proposed system of enforcement against employers under Chapter 3 of Part 1 is compliant with Article 6 of the ECHR. But, in view of the new right of appeal to the First-tier tribunal, the basis for that has changed. The Government now considers that the proposed system is compliant with Article 6 because there is a statutory right of appeal to an independent and impartial tribunal. Previously, the Government had said that the proposed system was compliant with Article 6 as the legitimacy of the penalty imposed on an employer would be determined by a county court, and that it would be possible to issue proceedings for judicial review in relation to a penalty notice or an enforcement notice.

Lords Amendment 24: Variation of attendance notice

15.     Amendment 24 would make clear that where a variation is made to an attendance notice as provided for in clause 44, all of the requirements about the description of education or training in the notice set out in clause 41 still apply, as they did to the original notice.

Lords Amendments 25 and 26: Financial penalty for a young person

16.     Clauses 45 to 47 provide that failure to comply with an attendance notice given under clause 40 could lead to a financial penalty and, if that penalty is not paid, to conviction of an offence under clause 45. Amendments 25 and 26 will ensure that the amount of the financial penalty, which must be prescribed in regulations, cannot exceed the maximum fine that could be imposed on conviction of the offence, which is level 1 on the standard scale of fines for summary offences. This complies with the recommendations of the House of Lords Delegated Powers and Regulatory Reform Committee.

Lords Amendments 27 to 31, 173, 178 to 180, and 211: Fine enforcement

17.     Amendments 27 to 31, 173, 178 to 180 and 211 will ensure that ordinary adult fine enforcement procedures will not apply in the case of a person who received a fine for an offence under clause 45 of failure to comply with an attendance notice without reasonable excuse.

18.     Amendment 28 applies to a person who reaches 18 after being given a fine. Once the individual had turned 18, fine enforcement would be transferred from the magistrates’ court to a county court, provided that the magistrates’ court were satisfied that the young person had the means to pay the fine (and any enforcement processes already begun had been completed). The magistrates’ court’s powers (apart from those relating to enforcement processes already begun) would cease when the person reached 18, so that subsequent enforcement could take place only in a county court. The county court would have no power to impose custody for non-payment. Any amount outstanding in relation to the surcharge and costs orders would be transferred to the county court, together with the amount of the fine.

19.     Amendment 29 makes similar provision in respect of a person who is 18 when given a fine. In that case the fine (and associated surcharge and costs) would be enforceable from the outset only in a county court.

20.     Amendments 28, 30 and 31 provide for the Lord Chancellor to make further detailed provision by subordinate legislation. Amendments 173, 178 and 179 make consequential amendments.

21.     Where a person aged under 18 fails to pay a fine, a youth default order could be made under section 39 of the Criminal Justice and Immigration Act 2008. Amendment 211 will amend Schedule 7 to that Act to allow the magistrates’ court to revoke a youth default order relating to a fine in respect of an offence under clause 40 once the young person reached the age of 18 and instead impose a new fine of an amount which takes account of the extent to which the young person had complied with the youth default order. That fine would be enforceable only in a county court.

Lords Amendment 32: Review of initial operation of Chapter

22.     Chapter 5 of Part 1 makes provision about the actions and proceedings that may be taken if a young person fails to fulfil their duty under clause 2 to participate in education or training. Amendment 32 provides for a review of, and report on, the initial operation of that Chapter. It is the Government’s intention that this review will be conducted by a person independent of the Government. Under clause 154, Part 1 must be fully in force by the school leaving date for 2015 (and will have come into force for certain year groups before then). The period reviewed will therefore cover the first full year for which Part 1 is in force.

Lords Amendments 33 to 37: Parliamentary staff

23.     Although the duties on employers in Chapter 3 of Part 1 apply in relation to employment in the House of Lords and House of Commons respectively, in the same way that they do to employment of all other young people, Amendments 33 and 34 provide for the powers for local authorities to take enforcement action not to apply.

24.     Amendment 35 removes the definition of House of Lords staff in subsection (5) of the existing clause 51, as this term will be defined in the new clause (amendment 33) relating to House of Lords staff.

25.     Amendment 36 removes the current definition of a “relevant member of the House of Commons staff” and instead applies the existing definition in the Employment Rights Act 1996.

26.     Amendment 37 makes provision for who is to be treated as the employer in relation to House of Commons staff, by reference to section 195 of the Employment Rights Act 1996.

Lords Amendments 39, 175, 177 and 191: Corresponding Provision for Wales

27.     Amendment 39 enables the Secretary of State, by order, to make provision for Wales corresponding to the duties on employers in clauses 19 to 30, and related provisions in clauses 31, 32, 33, 49, 50 and 52. This power would apply only if the National Assembly for Wales made a Measure that appeared to the Secretary of State to correspond to clause 2 of the Bill - effectively a Measure raising the participation age in Wales.

28.     The National Assembly for Wales could not currently make such a Measure, but could gain the competence to do so in future through a Legislative Competence Order under section 95 of the Government of Wales Act 2006.

29.     This amendment ensures that if the participation age were raised in Wales in future, the duties on employers could be applied in Wales too, and would apply in the same way to employers on either side of the border.

30.     Amendment 175 makes an order made under the new clause subject to the affirmative resolution procedure. Amendments 177 and 191 require the Welsh Ministers to be consulted before exercising the power conferred by the new clause inserted by Amendment 39, and before that provision is brought into force.

Lords Amendment 40: Provision of support on conditional basis: learning and support agreements

31.     Under clause 54, a local education authority must provide or arrange for the provision of Connexions services. Amendment 40 will enable the Connexions service provider, as part of the Connexions service, to enter into a learning and support agreement with a young person aged 13 to 19. This includes a young person who is not participating, or at risk of not participating, in education or training as required by clause 2.

32.     A learning and support agreement comprises agreement by a young person to comply with certain requirements, and agreement by the Connexions service provider to provide specified support (which could, for example, include financial support or an incentive payment) on condition that the young person complies with those requirements, but does not amount to a legally binding contract. The process of entering into a learning and support agreement involves identification and assessment of need, and the young person must be involved in negotiating the agreement.

33.     Clause 39(5) requires a local authority to ensure that Connexions support has been offered to a young person to whom Part 1 applies before taking enforcement for failure to comply with the duty imposed by clause 2. Entering into a learning and support agreement is an example of the kind of support that might be offered in this situation.

Lords Amendments 41 to 166: Chapters 1 and 2 of Part 4

34.     These amendments will result in the Secretary of State retaining the registration, monitoring, regulation and enforcement functions in relation to independent educational institutions in England. The Bill transfers these functions to Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (the Chief Inspector). These amendments will reverse that transfer. In addition, the Bill transfers the registration, monitoring, regulation and enforcement functions as they relate to independent schools specially organised for children with special educational needs and non-maintained special schools to the Chief Inspector. These amendments reverse that transfer.

35.     The Chief Inspector will retain her current role in relation to inspection of independent schools and, in future, independent educational institutions. The Chief Inspector also remains responsible for monitoring other independent inspectorates.

36.     Amendments 41, 42 and 43 modify clause 80 and will require the Secretary of State, not the Chief Inspector, to keep and publish the register of independent educational institutions.

37.     Amendments 45 to 57 modify clauses 83, 84 and 85 which deal with the procedure for registration as an independent educational institution. The amendments will provide for the proprietor of an institution to apply to the Secretary of State (not the Chief Inspector) for registration, who will notify the Chief Inspector of any application received. The Chief Inspector will inspect the institution and make a report to the Secretary of State on whether or not the required standards would be met upon registration. The Secretary of State, not the Chief Inspector, will make the decision on registration and advise the institution accordingly. The Secretary of State, not the Chief Inspector, will be responsible for entering an institution on the register, and will also have the power to remove an institution from the register if it no longer meets the definition of an independent educational institution and it is unlikely to do so in the course of the next year. The Secretary of State, not the Chief Inspector, must notify the proprietor of such a decision.

38.     Amendments 58 to 70 to clauses 87, 88, 89 and 90 deal with approval of material changes to an institution’s registered details. Applications for approval will be made to the Secretary of State, as registration authority, not the Chief Inspector. The Secretary of State may direct the Chief Inspector to inspect the institution and make a report on the extent to which any standards (which the Secretary of State or the Chief Inspector consider to be relevant) are likely to continue to be met if the change is made. The Secretary of State, not the Chief Inspector, will decide whether to approve the change and advise the institution accordingly. The Secretary of State, rather than the Chief Inspector, will also be able to deregister an institution which makes an unapproved material change.

39.     Amendments 71 to 77 will modify clauses 93 and 94 which deal with inspections and reports. The Chief Inspector will have a duty to inspect each independent educational institution at intervals prescribed by the Secretary of State. The Chief Inspector will not be required to inspect an institution if notified by the Secretary of State that it will be inspected by an independent inspectorate. The Chief Inspector must prepare a report on the extent to which any relevant standard is met and is likely to continue to be met.

40.     Clause 94 as amended will allow the Secretary of State to direct the Chief Inspector or arrange for a relevant Independent Inspectorate to carry out an inspection of an independent educational institution at any time. A report must be prepared on the extent to which any relevant standard is being met by the institution in question.

41.     Given that amendments make the Secretary of State the registration authority for the purposes of this Part (in place of the Chief Inspector in the original Bill), and because of the changes to clause 94, clause 95 is rendered unnecessary. Clause 95 provided the Chief Inspector, as registration authority, with the power to inspect any institution at any time. Amendment 78 will remove clause 95.

42.     Amendments 82, 83 and 84 will modify clause 98, to allow the Secretary of State, not the Chief Inspector, to deregister an institution for failure to pay fees in relation to an inspection carried out by the Chief Inspector, and require the Secretary of State to notify the proprietor accordingly.

43.     Clause 99, which deals with publication of inspection reports, will be altered by Amendment 85 to require the Chief Inspector to publish inspection reports as directed by the Secretary of State.

44.     Amendments 86 to 113 will modify clauses 100 to 104, which relate to institutions which are failing to meet the regulatory standards. The amendments will allow the Secretary of State, not the Chief Inspector, to require the proprietor of an institution to provide an action plan and will allow the Secretary of State to approve or reject the action plan. The amendments will allow the Secretary of State, rather than the Chief Inspector, to take appropriate enforcement action (removal from the register or imposition of a relevant restriction, as set out in clauses 104 and 105) provided that one of the conditions for doing so (contained in clause 103) has been met. The amendments will make changes to the language of the conditions to clarify that action plans will have been required by or provided to the Secretary of State and that (so far as the second condition is concerned) the Secretary of State has not been satisfied that all of the standards have been met at any time during the period specified. The amendments allow the Secretary of State, not the Chief Inspector, to vary or withdraw a relevant restriction. Further, the Secretary of State must notify the institution of decisions he takes under these clauses.

45.     Amendments 114, 115 and 116 to clause 105 will allow the Secretary of State, rather than the Chief Inspector, to deregister an institution which permits a person who is subject to a relevant direction, order or decision of a similar character to carry out certain activities in relation to the institution, and require the Secretary of State to notify the institution accordingly.

46.     Amendments 117 to 123 to clauses 106 and 108 will allow the Secretary of State, rather than the Chief Inspector, to apply to a justice of the peace for an emergency order either to deregister an institution immediately, or to impose a relevant restriction on its operation, where a student is suffering or likely to suffer significant harm. The amendments will require the Secretary of State, not the Chief Inspector, to serve the order, supporting evidence and notice of the right of appeal on the proprietor of the institution and to inform relevant local education authorities.

47.     Amendments 124, 125, 126 and 127 will modify clause 109 to allow regulations to require proprietors of registered institutions to provide prescribed information to the Secretary of State, rather than the Chief Inspector. Further, the amendments will provide for the regulations to allow the Secretary of State, not the Chief Inspector, to deregister an institution which fails to provide the required information (subject to a right of appeal). The Secretary of State will be required (under the regulations) to notify the institution of any decision to deregister.

48.     Amendments 128 to 130, 132 to 137 and 139, and 131 and 138 will modify clauses 110 to 113. The amendments will ensure that rights of appeal (to be exercised by proprietors) lie against decisions taken by the Secretary of State, rather than the Chief Inspector, or against an order imposed by a justice of the peace. The amendments will give the Tribunal jurisdiction to require the Secretary of State, not the Chief Inspector, to take certain action in relation to the register depending on the Tribunal’s findings on appeal. In an appropriate case, the Secretary of State will be able to determine the date for the removal of an institution from the register where the Tribunal has ordered removal but omitted to set a date.

49.     Amendments 131 and 138 change references to the Care Standards Tribunal, which currently hears appeals brought by proprietors of independent schools. Appeals by proprietors will now be heard by the First-tier Tribunal in accordance with provisions to be made under the Tribunals, Courts and Enforcement Act 2007 rather than the Tribunal established under section 9 of the Protection of Children Act 1999. Amendments 162, 164 and 196 remove paragraph 17 of Schedule 1 to effect the same change in relation to the appeal rights provided to non-maintained special schools through clause 129.

50.     Amendments 140 to 148 will alter clauses 114, 116 and 117. The Secretary of State, not the Chief Inspector, will be the appropriate authority for the purposes of making directions prohibiting or restricting a person from participating in the management of an independent educational institution and appeals will lie against his decisions. Amendments 143 and 144 will allow the Chief Inspector to share any relevant information to enable the Secretary of State to carry out his duties under clauses 114 and 115.

51.     Amendment 149 will modify clause 120 to allow proceedings against independent educational institutions to be commenced only with the consent of the Secretary of State. The Chief Inspector’s consent will not be required.

52.     Amendments 153 to 156 amend clause 125. The effect of these amendments is to: remove the references to “the Chief Inspector”; change “relevant authority” to “appropriate national authority” (which is used in subsequent clauses in Chapter 2); provide that the appropriate national authority for schools in England is the Secretary of State; and amend section 342 of the Education Act 1996 (which provides for the approval of non-maintained special schools) to take account of the new definitions.

53.     Amendment 157 removes clause 126, which would have transferred the responsibility for approval and regulation of non-maintained special schools to the Chief Inspector.

54.     Amendment 158 amends clause 128 to enable the Secretary of State, rather than the Chief Inspector, to make an application to a Justice of the Peace for an order to withdraw approval from a non-maintained special school in an urgent case.

55.     Amendments 159, 160, 161 and 163 amend clause 129 to change references from the “Chief Inspector” to “the Secretary of State” who will now continue to make decisions that may be appealed against under this clause. These are decisions about withdrawal of approval or refusal to agree to requests to change particular arrangements relating to a non-maintained special school, such as the age range or the type of special educational needs catered for by the school.

56.     Amendments 165 and 166 amend clause 131 to substitute references to the “appropriate national authority” for references to the “Chief Inspector”.

57.     This group of amendments will reverse consequential amendments made by Schedules 1 and 2 of the Bill. These amendments will result in the current wording of the following provisions remaining on the statute book:

    a.     section 87 of the Children Act 1989, which requires the Secretary of State to be informed of failures to safeguard the welfare of children in independent boarding schools;

    b.     section 28E of the Disability Discrimination Act 1995, which requires copies of accessibility plans to be provided to the Secretary of State on request;

    c.     Amendment 215 is a technical amendment which ensures that Section 28E of the Disability Discrimination Act 1995 continues to refer to Academies and not to City Academies.

58.     Amendments 194 and 195 amend paragraph 15 of Schedule 1. Amendment 194 amends this paragraph to reflect the change of reference to “the appropriate national authority” rather than “the Chief Inspector” following the amendments to Chapter 2 of Part 4. Amendment 195 removes the reference to “relevant authority” (in Chapter 2 of part 4). The effect of these amendments is that the term “appropriate national authority” will be inserted in the table of expressions in section 580 of the Education Act 1996 in place of the term “the relevant authority (in Chapter 2 of Part 4)”, which is omitted.

59.     Amendments 197 to 206 will modify section 167C of the Education Act 2002, to allow Welsh Ministers to share information with the appropriate authority for Wales. The amendments also remove mention of “HMCI” (The Chief Inspector for England) from the Welsh information sharing provisions in light of the other amendments to Part 4 of this Bill. To reflect the position in England, amendments will allow the appropriate authority and Chief inspector in Wales to share relevant information. Amendment 202 allows the appropriate authority for Wales to share information with the Chief Inspector (for Wales) which is held by the appropriate authority in connection with its powers to make a direction prohibiting or restriction persons from participating in the management of independent schools in Wales. These amendments will require the Welsh appropriate authority to notify the Secretary of State (and if different, the English appropriate authority) of any directions it makes for Wales under section 167A of the Education Act 2002.

 
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