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These notes refer to the Apprenticeships, Skills, Children and Learning Bill as introduced in the House of Commons on 4 February 2009 [Bill 55]
APPRENTICESHIPS, SKILLS, CHILDREN AND LEARNING BILL
EXPLANATORY NOTES
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INTRODUCTION
1. These Explanatory Notes relate to the Apprenticeships, Skills, Children and Learning Bill introduced in the House of Commons on 4 February 2009. They have been prepared by the Department for Children, Schools and Families (DCSF) and the Department for Innovation, Universities and Skills (DIUS) in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. The Bill contains provisions on a range of policies which span the responsibilities of both DCSF and DIUS.
4. The Bill incorporates proposals previously published in July 2008 as the Draft Apprenticeships Bill. The Draft Apprenticeships Bill was the subject of pre-legislative scrutiny by the Innovation, Universities, Science and Skills Select Committee and the Children, Schools and Families Select Committee, whose reports are available on the Parliament website ().
Bill 55-EN 54/4
5. A key element of the Bill is the continued reform of 14 to 19 education and training. This builds on the Education and Skills Act 2008, which raised the age of participation in education or training to 18 for all young people from 2015. In line with proposals originally included in the March 2008 White Paper Raising Expectations: Enabling the system to deliver, the Bill will put in place the underpinning legislation required to deliver this policy.
6. The Bill will transfer responsibility for funding education and training for young people over compulsory school age but under 19 from the Learning and Skills Council to local education authorities. Local education authorities will also take on responsibility for the education of young people in custodial establishments, and for the education and training of certain learners with learning difficulties or disabilities up to the age of 25.
7. The Bill will also establish the Office of Qualifications and Examinations Regulation (Ofqual) as a new independent regulator of qualifications and assessments, while the Qualifications and Curriculum Authority (the QCA) will continue to exercise its non-regulatory role under the new name of the Qualifications and Curriculum Development Agency (the QCDA).
8. The Bill will create the Young People’s Learning Agency for England (YPLA), which will support local education authorities in their new role. It will also create the office of Chief Executive of Skills Funding. The holder of this office will head the Skills Funding Agency (SFA), which will be established by administrative means. The Chief Executive of Skills Funding will be responsible for establishing and leading a new, demand-led system of skills provision for adults.
9. Further background is included on these and the other elements of the Bill in the “Overview of the Structure”’ section.
10. A glossary of terms and abbreviations used in these Explanatory Notes is provided at the end of these Notes.
Local education authority
11. Throughout the Notes the term “local education authority” is used to refer to those local education authorities with education functions identified in section 12 of the Education Act 1996. The term “local education authority” has been in use since 1944 to identify those authorities but it has given rise to some perceptions that a local education authority has an identity of its own separate from the local authority.
12. In line with government policy to improve outcomes for children by promoting greater cooperation between agencies delivering children’s services, and the introduction of the post of director of children's services and lead member for children's services in the Children Act 2004, local authority children’s services (mainly education and children’s social services) are being integrated. To reflect this it is now government policy that the terms “local education authority” and “children’s services authority” should no longer be used. To make this fully effective requires an equivalent change in the terminology used in legislation.
13. Education legislation, however, uses the term “local education authority” and, as the Bill both amends and builds on a number of Education Acts, it has been necessary to continue to use the term local education authority in the Bill. It is therefore used throughout these Notes (and, where appropriate, is abbreviated to LEA). But in due course an order made under section 162 of the Education and Inspections Act 2006 will convert references in legislation to “local education authority” (and references in legislation to “children’s services authority”) to references to “local authority”.
OVERVIEW OF THE STRUCTURE
Part 1: Apprenticeships, Study and Training
14. This Part makes provision about apprenticeships, including provision about the issue of apprenticeship certificates, and for the issue of apprenticeship frameworks. It also obliges schools, when advising pupils on careers, to consider whether it would be in the best interests of pupils to receive advice relating to apprenticeships.
Part 2: Local Education Authority (LEA) Functions
15. This Part sets out the new duties LEAs will have to provide education and training for those who are over compulsory school age but under 19 and for those aged 19 or over but under 25 who have had a learning difficulty assessment. It also places obligations on LEAs in respect of the transport to be provided to those groups.
16. In respect of individuals in young offender institutions (YOIs), it places an obligation on the LEA in whose area an individual normally lives to promote the individual's education, and an obligation on the LEA in whose area the individual is in custody to provide suitable education.
Part 3: The Young People's Learning Agency for England
17. Part 3 establishes the Young People’s Learning Agency for England (YPLA) and sets out its core functions. The YPLA will support and enable local education authorities to carry out their new duties.
Part 4: The Chief Executive of Skills Funding
18. This Part creates the office of Chief Executive of Skills Funding. The Chief Executive, with his or her staff, will constitute the Skills Funding Agency and will take on responsibility for funding post-19 education and training. All the necessary functions will be conferred on the Chief Executive. Many of the duties relate to responsibilities to ensure there are appropriate and sufficient numbers of apprenticeship places available.
Part 5: Parts 2 to 4 Supplementary
19. Part 5 puts in place arrangements to ensure that the various bodies involved in providing education and training for those aged 16 and above may appropriately share information that is needed to carry out their functions. It also abolishes the Learning and Skills Council and makes consequential provision.
Part 6: The sixth form college sector
20. Part 6 gives sixth form colleges a distinct legal identity within the further education sector.
Part 7: Office of Qualifications and Examinations Regulation
21. Part 7 establishes Ofqual, which has existed in interim form as a committee of the QCA since April 2008, and sets out its functions. Specifically it sets out the mechanics for how Ofqual will regulate awarding bodies and the qualifications they award or authenticate, and the regulation of assessment arrangements for the National Curriculum (NC) and those for the Early Years Foundation Stage (EYFS).
Part 8: Qualifications and Curriculum Development Agency
22. The Bill repeals the existing legislation which established and conferred functions on the QCA. The body will continue in existence under the Bill under the new name of the Qualifications and Curriculum Development Agency. The principal difference will be that it will no longer exercise any regulatory functions (responsibility for these will in future lie with Ofqual).
Part 9: Children’s Services
23. This Part establishes Children’s Trust Boards and provides for them to take over from local authorities responsibility for preparing a children and young people's plan.
24. It also defines children’s centres in legislation and requires local authorities to arrange for sufficient numbers of children’s centres in their area to meet local need, as well as making further provision for the inspection of children's centres.
Part 10: Schools
25. Chapter 1 will amend the current intervention powers which local education authorities and the Secretary of State have in respect of schools which are causing concern. It will also give local education authorities and the Secretary of State specific powers to intervene to ensure schools comply with the School Teachers’ Pay and Conditions Document.
26. Chapter 2 will streamline the process by which parents can make complaints about schools, transferring responsibility to hear complaints from the Secretary of State to the Local Government Ombudsman.
27. Chapter 3 will enable the Chief Inspector of Education and Children’s Services (Ofsted) to publish an interim statement on schools between inspections.
28. Chapter 4 will establish the School Support Staff Negotiating Body (SSSNB) as a statutory body and give the Secretary of State powers to ratify agreements reached by the SSSNB on school support staff pay and conditions and to make orders that will determine how those ratified agreements will be given effect to in schools.
Part 11: Learners
29. This Part will extend the power that teachers and staff in schools and further education (FE) institutions currently have to search pupils (or students in the case of FE institutions) for weapons, so that it also covers illegal drugs, alcohol and stolen items.
30. It will also require schools and FE institutions to report to parents significant incidents where force is used on pupils and students aged 19 or under.
31. It will also require schools to enter into partnerships with each other for the purpose of improving behaviour and attendance.
Part 12: Miscellaneous
32. This Part will make amendments to change the way in which local education authorities provide information about expenditure on schools, allow for data necessary to support the “Raising the Participation Age” policy to flow to LEAs and will make changes which would mean that recipients of student loans would not reduce their liability to repay these if they entered into Individual Voluntary Arrangements. It will also allow FE institutions in Wales to be authorised to award Foundation Degrees.
TERRITORIAL EXTENT AND APPLICATION
33. Most of the provisions contained in the Bill extend to England and Wales only, with a small number of provisions extending more widely. These are shown in the table at Annex A.
Territorial application: Scotland
34. At introduction the Bill contains provisions that trigger the Sewel Convention. The provisions are those re-stating powers conferred by sections 11 and 12 of the Further Education and Training Act 2007. Those sections currently enable the Learning and Skills Council to make arrangements to provide services to the Scottish Executive. These powers will be replicated for both the Chief Executive of Skills Funding and the Young People’s Learning Agency for England, in clauses 65, 66, 103 and 104. The Sewel Convention provides that the UK Parliament will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
35. In addition, clause 39 - which cover the right to request time to train - will apply in Scotland. As this clause amends legislation which relates to the reserved matter of employment rights and duties, it does not trigger the Sewel Convention.
Territorial application: Wales
36. The Bill confers a number of new or expanded powers on the Welsh Ministers, in line with changes being made to certain powers of the Secretary of State in relation to England. In addition, the Bill makes two changes which are specific to Wales:
- a measure to enable institutions within the further education sector in Wales to apply to the Privy Council for the power to grant foundation degrees;
- an amendment to section 29 of the Education Act 2002 to require all schools in Wales to adopt a complaints procedure established by regulations made by Welsh Ministers.
Territorial application: Northern Ireland
37. At introduction the Bill contains provisions that require a legislative consent motion with regard to Northern Ireland. Clause 127 gives Ofqual a role in regulating certain vocational qualifications in Northern Ireland. By convention, Westminster will not normally legislate with regard to devolved matters in Northern Ireland without the consent of the Northern Ireland Assembly. If there are amendments relating to such matters which trigger the Convention, the consent of the Assembly will be sought for them.
38. In addition, the Bill re-states powers conferred by section 13 of the Further Education and Training Act 2007, which currently enables the Learning and Skills Council to make arrangements to provide services to the Northern Irish Executive. These powers will be replicated for both the Chief Executive of Skills Funding and the Young People’s Learning Agency for England, in clauses 65, 67, 103 and 105. A legislative consent motion is not, however, required for this matter.
COMMENTARY ON CLAUSES
PART 1: APPRENTICESHIPS, STUDY AND TRAINING
Chapter 1: Apprenticeships
Apprenticeship certificates: England
39. Clauses 1 to 4 make provision about apprenticeship certificates, and specify when an apprenticeship certificate must, or may, be issued to a person.
Clause 1: Duty to issue apprenticeship certificates: England
40. Subsection (1) requires the English certifying authority (see explanation of clause 4 which explains who the Government intends will carry out this function) to issue an apprenticeship certificate to a person who applies to it as described in that subsection and who satisfies the conditions in subsection (3), or any conditions prescribed under subsection (5).. The conditions in subsection (3) are that the person has been a party to an English apprenticeship agreement (see clauses 30 to 34) and at the date that the agreement was entered into, it related to a recognised English apprenticeship framework. In addition, the certifying authority must be satisfied that while working under the English apprenticeship agreement the applicant completed a course of training for the principal qualification identified by the framework, and that the applicant has met all the other requirements specified for the award of a certificate.
41. The effect of subsection (4) is that a person can be party to a succession of apprenticeship agreements relating to the same framework while working towards the principal qualification specified in the framework and/or can take two or more courses of training towards the principal qualification without losing the entitlement to an apprenticeship certificate.
42. The effect of subsections (5) and (6) is to enable regulations to provide for circumstances where a person has not entered into an apprenticeship agreement but is working under alternative working arrangements. The power to make regulations might be exercised, for instance, give a self-employed person or someone working as
an unwaged volunteer an entitlement to an apprenticeship certificate, provided they had met all the other requirements specified for the award of a certificate.
Clause 2: Power to issue apprenticeship certificates: England
43. This clause gives discretion to the English certifying authority to issue a certificate to a person who applies to it who is not within clause 1. The Government’s intention is that in most cases a certificate should not be issued to a person who has never entered into an apprenticeship agreement. This clause makes it possible for a certificate to be issued in exceptional circumstances where the English certifying authority considers that a person should be issued with a certificate even if they have not entered into an apprenticeship agreement. For example, this clause would permit the issuing of a certificate where persons have not entered into an apprenticeship agreement or where they have done the training for the principal qualification before entering into an apprenticeship agreement.
Clause 3: Issue of certificates by the English certifying authority: supplementary
44. Subsection (1) makes provision for English certifying authority to charge a fee for issuing an apprenticeship certificate where authorised to do so by the Secretary of State in accordance with the regulations. Subsection (2) allows the Secretary of State to make regulations to enable the English certifying authority to supply duplicate certificates, and subsection (3) specifies that these regulations may also include provision for the English certifying authority to charge a fee for that service.
Clause 4: The English certifying authority
45. Subsection (1) enables the Secretary of State to designate a person to act as the English certifying authority for apprenticeship certificates. Subsection (2) requires a person authorised under subsection (1) to comply with directions and to have regard to guidance from the Secretary of State about the issue of certificates. The Government’s intention is that the Chief Executive of Skills Funding will be designated by the Secretary of State to exercise this and other apprenticeship functions and that the Chief Executive of Skills Funding will delegate this responsibility to the Chief Executive of the National Apprenticeship Service (see Notes to Clause 79), who will act as the certifying authority in England, and who may sub-delegate this function to sub-contractors.
Clause 5: Duty to issue apprenticeship certificates: Wales, Clause 6: Power to issue apprenticeship certificates: Wales, Clause 7: Issue of certificates by the Welsh certifying authority: supplementary, Clause 8: The Welsh certifying authority
46. Clauses 5 to 8 make provision about the issue of apprenticeship certificates in Wales. In particular, Clause 8 provides that the certifying authority for apprenticeships in Wales will be persons designated for that purpose by the Welsh Ministers.
Clause 9: Contents of apprenticeship certificate
47. This clause applies to England and Wales. It sets out the required contents of an apprenticeship certificate whether issued under clauses 1, 2, 5 or 6.
Apprenticeship frameworks: England and Wales
48. Clauses 10 to 20 cover apprenticeship frameworks which are high level curricula for an apprenticeship in a specified career. The frameworks typically include an integrated programme which contains a competence element; a knowledge element; transferable or key skills; and employment rights and responsibilities. The frameworks require a person to obtain a qualification such as an NVQ at level 2, 3 or 4 in a particular subject to meet the competence and knowledge elements, as well as key skills in literacy and numeracy. These clauses set out the procedures for the issue of apprenticeship frameworks which will be developed by employers, Standard Setting Bodies and Sector Skills Councils according to the specification of apprenticeship standards in England and Wales. The separate provision for a specification of apprenticeship standards for England in clauses 21-25 and for Wales in clauses 26-29 enables variations between the specification of apprenticeship standards for England and the specification of apprenticeship standards for Wales and the related recognised frameworks.
Apprenticeship Frameworks: England
Clause 11: English issuing authority
49. This clause enables the Secretary of State to designate a person to issue recognised English apprenticeship frameworks. A person designated under this clause is referred to as “the English issuing authority”. Subsection (2) provides that there is to be only one person authorised to issue frameworks for a particular apprenticeship sector. The intention is that, in England, frameworks will be issued by Sector Skills Councils working in partnership with Standard Setting Bodies. Subsection (3) requires a person authorised to issue apprenticeship frameworks to comply with directions and guidance given by the Secretary of State in carrying out this function.
Clause 12: Issue of apprenticeship frameworks etc.: England
50. This clause allows the English issuing authority to issue apprenticeship frameworks that comply with the specification of apprenticeship standards for England. Recognised English frameworks will remain current until withdrawn by either the English issuing authority or the Secretary of State. Subsection (4) allows for a recognised English framework to be withdrawn at any time by the English issuing authority or, if the issuing authority has ceased to exist, by the Secretary of State.
Clause 13: Recognised English frameworks: notification and publication requirements
51. This clause requires the English issuing authority to publish recognised English frameworks which it issues and to notify the Chief Executive of Skills Funding of the issue of a framework and send him a copy of the framework. Subsection (3) requires a person withdrawing a framework to publish notice of this and to advise the Chief Executive of Skills Funding of the withdrawal. Subsection (4) permits the English certifying authority to publish a recognised English framework or a notice of withdrawal however it chooses; but the effect of clause 11(3) is that in doing so the English certifying authority would still be required to have regard to guidance from the Secretary of State.
Clause 15: Transitional provision for apprenticeship frameworks: England
52. This clause enables the Secretary of State to make an order providing that a framework already existing as at the date when clause 12 comes into force is to be treated as if it were a framework issued under clause 12. This would enable a person to enter into an apprenticeship agreement relating to a framework of this type. The effect of subsection (4), though, is that an order under this clause will not be able to permit a person to enter into a first apprenticeship agreement, in relation to an order of this type, after the date specified in that subsection, which is no later than the day after the day that is the school leaving date for 2013. This will provide a reasonable period for deemed frameworks to continue while arrangements are made to issue new frameworks under the specification of apprenticeship standards for England. If new frameworks are issued before that date that would replace deemed frameworks, the Government intends to withdraw the deemed framework. Subsection (3) sets out provision which an order under this clause must include, in order to apply the provisions of the Chapter.
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