Education And Skills Bill - continued          House of Commons

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Lords Amendments 44 and 79: Legal professional privilege

60.     Amendment 44 to clause 82 and Amendment 79 to clause 96 will prevent the Chief Inspector from inspecting or copying any records or documents which are subject to legal professional privilege or which fall within the categories of “excluded material” and “special procedure material”. The amendments were tabled in response to recommendations by the Joint Committee on Human Rights about the apparent lack of safeguards on the face of the original Bill in relation to the Chief Inspector’s powers to enter the premises, inspect and take copies of records where she is conducting a regular inspection under this Part or, more particularly, where she has reasonable cause to believe that an unregistered independent educational institution is being operated. In particular, the Committee were concerned about the apparent vulnerability of material which is subject to legal professional privilege.

Lords Amendments 80 and 81: Inspection fees

61.     Amendment 81 will enable fees set in regulations made under clause 97 to be required to be paid annually and in advance of the inspection.

62.     A number of technical changes introduced by this amendment will also allow the regulations to provide for:

    a)     fees to be determined by reference to circumstances which exist before the inspection takes place;

    b)     more than one fee to be paid in relation to a periodic inspection (for example, this will allow for an annual fee to be charged); and

    c)     a discretion to be granted to the registration authority, to determine which institutions qualify for reduced tariff inspections.

63.     In addition the amendments: will provide that regulations cannot require a fee to be paid to the Chief Inspector for a periodic inspection where an independent inspectorate is approved for the institution; and include a power not to refund a fee paid where an inspection does not take place (which is designed to address a case where an institution has paid a fee in advance of an inspection but closes before the periodic inspection takes place).

64.     Amendment 80 is a technical amendment which will remove wording from the Bill which Amendment 81 renders unnecessary.

Lords Amendments 150, 151 and 152: Transitional provisions

65.     Amendments 150, 151 and 152 will introduce new clauses making transitional provisions in relation to independent educational institutions in Chapter 1 of Part 4. These will allow for the continuity of law between existing and new provisions, which will enable regulatory functions and enforcement action to be carried out without a break. They will provide for the existing register of independent schools for England (kept under section 158 of the Education Act 2002) to become the new register of independent educational institutions. They will create a power to waive fees payable to the Chief Inspector in relation to inspections. The amendments will also reproduce for England the transitional provisions enacted in section 171 of the Education and Inspections Act 2006, which cover the transition from barring directions in relation to the participation in the management of independent schools currently made under section 142 of the Education Act 2002 to the powers of direction which are now re-enacted in clause 114 of the Bill.

Lords Amendment 167: School Admissions Code

66.     The Secretary of State must under section 85(2) of the School Standards and Framework Act 1998 carry out consultation on any new or revised Code relating to school admissions. The Bill amends provisions governing such codes. Amendment 167 removes any doubt about whether consultation on a draft School Admissions Code, or School Admissions Appeals Code, which depends on amendments made by the Bill is valid if it takes place before the Bill is enacted.

67.     By enabling consultation to take place now, the Amendment makes it possible for a new Code to come into force for admissions from September 2010 rather than September 2011.

Lords Amendments 168 and 169: Attendance offsite for purpose of improving behaviour

68.     Clause 138 gives a school governing body the power to direct a registered pupil to attend any place outside the school premises for the purpose of receiving educational provision which is intended to improve a pupil's behaviour.

69.     Amendments 168 and 169 enable the Secretary of State to make regulations prohibiting a governing body from requiring a pupil to attend off-site provision for a greater number of days in a school year than is specified in the regulations.

70.     Clause 138 imposes other obligations upon the Secretary of State to make regulations requiring governing bodies to keep under review any requirement for a pupil to attend off-site provision. The Government expects that regulations will impose a requirement to review an off-site direction every 30 days during the time that the pupil is attending off-site provision.

71.     The Government’s intention is that the requirement for an individual pupil to attend off-site provision must be for a limited period and subject to regular review.

Lords Amendments 170, 181, 182 and 209: National Curriculum assessment arrangements

72.     Amendment 170 amends section 88 of the Education Act 2002 to remove the obligation on schools and local education authorities to implement the assessment arrangements for the National Curriculum as they stand at the start of the school year. Instead, schools and local education authorities will be required to implement assessment arrangements as they exist at a given point in time.

73.     Amendments 181 and 182 allow these new provisions to come into force on Royal Assent, to enable the Secretary of State to remove the obligation on schools to administer Key Stage 3 National Curriculum tests in the current school year.

74.     Amendment 209 is a consequential amendment, which ensures that the changes effected by Amendment 209 are carried forward when section 74 of the Education and Inspections Act 2006 (which makes prospective amendments to section 88 of the 2002 Act) comes into force.

Lords Amendment 171, 172, 183, 184, 187, 189, 190, 208 and 214: Governing bodies of maintained schools to invite and consider pupils’ views

75.     Amendment 171 will insert a new section 29A into the Education Act 2002, the effect of which is to place duties on governing bodies of maintained schools in England and Wales to invite the views of registered pupils about prescribed matters, and consider any views on those matters expressed by pupils (whether or not in response to an invitation) in light of their age and understanding. The matters on which governing bodies must consult pupils are to be prescribed by regulations made by the Secretary of State for England and the Welsh Ministers for Wales (and Amendment 208 prescribes the procedure in the National Assembly for Wales for the latter). Subsection (3) of the new section to be inserted by amendment 171 allows governing bodies to invite the views of all registered pupils at the school, or to consult only those pupils who it considers are affected by the matter or are representative of those groups of pupils.

76.     Amendment 172 amends section 176 of the Education Act 2002 (which requires local education authorities and governing bodies of maintained schools to have regard to guidance about consultation with pupils) so that it only applies to local education authorities in Wales. In England, section 3A of the Local Government Act 1999 (which was inserted by section 138(1) of the Local Government and Public Involvement in Health Act 2007) requires certain local authorities in England, including local education authorities, to involve representatives of local persons in the exercise of their functions, where they consider it is appropriate to do so. Section 29A of the Education Act 2002 (inserted by Amendment 171) will replace the duty currently imposed on governing bodies of maintained schools in England and Wales by section 176 of that Act.

Lords Amendments 174 and 176: Financial penalty for employer

77.     Amendments 174 and 176 will ensure that regulations setting the amount of the financial penalty for an employer are subject to the affirmative procedure unless their sole purpose is to decrease the size of any penalty or an amount by reference to which penalties are calculated. This amendment was recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.

Lords Amendment 180: Interpretation

78.     Amendment 180 makes a technical change to define “prescribed” and “regulations” except where it is clear from the context that some other meaning applies (for example, where a provision confers power on the Lord Chancellor to make regulations).”

Lords Amendments 182, 185, 186 and 188: Commencement of admissions provisions

79.     These amendments make technical and drafting changes to the commencement of the admissions provisions in the Bill, and in particular those in Schedule 1. Schedule 1 introduces a series of amendments to the School Standards and Framework Act 1998, some of which are to be commenced by the Welsh Minsters, so far as they apply in relation to Wales. Otherwise those amendments are to be commenced by the Secretary of State. The effect of Amendments 182, 185, 186 and 188 is to provide that the technical amendment introducing the amendments of the School Standards and Framework Act 1998 can be brought into force by the Welsh Ministers in relation to Wales only so far as it relates to those other paragraphs of the Schedule which they can commence in relation to Wales, and not all of them.

Lords Amendment 190: Drafting change

80.     This amendment will make it clearer in drafting that apart from the provisions mentioned in subsections (1) to (3) of clause 154, the remaining provisions of the Bill will be brought into force by the Secretary of State by order.

Lords Amendments 207 and 213: Consequential amendments: Welfare Reform and Pensions Act 1999

81.     These amendments make consequential changes to section 72 of the Welfare Reform and Pensions Act 1999 to allow regulations to make provision for social security information to be shared between the Department for Work and Pensions and a person providing Connexions services under clause 54. The amendment is needed because, although section 72 already allows information to be provided to a local authority or a person providing services to a local authority, the definition does not include a county council.


82.     Some amendments will result in additional public expenditure as follows:

    a.     Amendments 1 to 23 and 38, introducing rights of appeal for employers against the issuing of penalty notices, are estimated to result in an additional £0.3 million cost to government;

    b.     The amendments to Part 4 of the Bill to reverse the proposed transfer of the registration and regulation of independent educational institutions and non-maintained special schools from the Secretary of State to the Chief Inspector are likely to reduce the scope for efficiency savings.

83.     Amendments 170, 181, 182 and 209 to enable National Curriculum assessment arrangements to be altered mid-year do not affect public expenditure. However, using these revised powers the government intends to table an order to discontinue Key Stage 3 assessments from summer 2009, which is likely to lead to cost savings in over 3000 schools.

84.     All of these costs and benefits are set out in an updated impact assessment which has been published to reflect the amendments made in the Lords and can be found at: and is available to Members in the Vote Office.

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Prepared: 12 November 2008