Clauses 132 and 134: Other conditions of recognition: entry and inspection conditions

839.     The Government’s view is that the imposition of a condition on an awarding to permit Ofqual to enter the body’s premises is not in breach of Article 8. Such a condition does not impose a right of entry. There are safeguards attached to such a condition. It cannot apply to a private dwelling. Notice must be given of any proposed entry and entry must be at a reasonable time. A direction that an awarding body should comply with such a condition may engage Article 8; please see below in relation to clause 144.

Clause 144: Power to give directions

840.     The Government’s view is that there is nothing inherently in breach of any ECHR Article in Ofqual’s power to give directions to recognised bodies; however use of the power in individual cases might be challenged as being in breach of Articles 6, 8 or Article 1 of Protocol 1, in which case the availability of judicial review ensures that sufficient safeguards and remedies are available.

841.     If a direction is made that impinges on the possession of recognition and the benefits which flowed from it, then a civil right for the purposes of Article 6 may be engaged. An aggrieved awarding body would have access to an impartial and impartial tribunal for the purposes of that Convention right. The provisions contain safeguards for the fair conduct of any intention to make a direction and for an internal review of such a decision, combined with the availability of judicial review. Any deprivation may engage Article 1 of Protocol but would, in the Government’s view, be justified as in the public interest and as a consequence of an awarding body violating conditions provided by law. Article 8 may be engaged where the direction making power is to direct compliance with a condition requiring permission to enter premises. The proper regulation of qualifications is necessary for the well-being of the country. No direction can be enforced without an application to the court, providing judicial scrutiny of any such proposal to direct.

Clauses 154, 160 and 176: Powers to require information and provision of information or advice

842.     Ofqual is able to require specified persons to supply information to enable fulfilment of duties to keep under review National Curriculum and Early Years Foundation Stage assessment arrangements. Ofqual and the QDCA will also supply information to the Secretary of State. Such information is unlikely to identify individuals. Article 8(1) may be engaged in this process in the exceptional circumstance where personal information is disclosed. However the Government’s view is that any interference is justified in line with Article 8(2) in the interests of the economic well-being of the country in ensuring that assessment arrangements operate to facilitate an effective education system. The provisions are subject to the protections of Data Protection Act 1998.

Clause 184: Arrangements to promote co-operation

843.     Children’s Trust Boards (CTBs) will have power to request information from its board partners in order to perform its functions. It is unlikely that information identifying an individual will routinely be exchanged, but where this in the case, Article 8(1) may be engaged.

844.     Assuming Article 8 is engaged, the Government is satisfied that any interference will be justified under Article 8(2). The proposals pursue a legitimate aim as the information will be shared only in order to help local services to co-operate to improve children’s well-being, and so protect their health, morals, rights and freedoms. In addition, the Children’s Trust Board is a public authority for the purposes of section 6 of the Human Rights Act 1998 and will therefore be required to exercise these powers in a way that is compatible with Convention rights. In addition, the Children’s Trust Board is a public authority for the purposes of section 6 of the Human Rights Act 1998 and will therefore be required to exercise these powers in a way that is compatible with Convention rights.

Clauses 186 to 188: Children’s centres

845.     The powers of entry and related powers conferred on the Chief Inspector by new section 98D of the Childcare Act 2006 (inserted by clause 187 of the Bill) will enable the Chief Inspector to carry out inspections of children’s centres. The exercise of these powers may engage rights under Article 8 of the Convention (right to private life) and if they do, the Government’s view is that any interference with those rights is justified because it pursues the legitimate aim of inspecting children’s centres to ensure that services available there are appropriate and of the right quality to ensure the protection of the health and morals of children using the services, and their rights and freedoms. In addition, the Chief Inspector is a public authority for the purposes of section 6 of the Human Rights Act 1998 and will therefore be required to exercise these powers in a way that is compatible with Convention rights.

Clauses 229 and 231: Powers of members of staff to search school pupils and students for alcohol, controlled drugs and stolen articles and to seize such articles

846.     Existing powers to search for offensive weapons are extended to enable searches for alcohol, controlled drugs and stolen articles to be undertaken in schools and FE and sixth-form colleges without the consent of the person being searched.

847.     Article 8(1) may be engaged in the exercise of such powers; however the Government is satisfied that any interference will be justified in line with Article 8(2) as being in the interests of public safety and the prevention of disorder or crime. Students or pupils consuming alcohol or taking drugs in FE institutions and schools may become disruptive. They may place their own health and safety at risk and, where they supply alcohol and drugs to other students or pupils, place the health and safety of those other students or pupils at risk. Seizure of alcohol from them may prevent alcohol-related and alcohol-induced crime, and seizure of controlled drugs may prevent the criminal offence of supply. In relation to stolen articles, seizure of such articles and their return to the lawful owner protects the rights of the owner. Where pupils are aware that they may be searched, this may act as a deterrent to prevent theft.

848.     Seizure of a prohibited item from a student or pupil amounts to a deprivation of property and potentially interferes with Article 1 of Protocol 1; however the Government believes this to be justified. In relation to alcohol, deprivation of property is in the public interest is in the public interest in order to avoid the disruption that would result from alcohol being consumed at the institution or in school.

849.     In relation to controlled drugs, possession is unlawful, therefore deprivation will prevent the continued commission of a criminal offence; may prevent the further offence of supply being committed; and may prevent harm being caused to students or pupils as a result of taking the drugs. Because of the risks to the safety of students or pupils and of the disorder that could result from allowing students or pupils to bring alcohol and controlled drugs into a school or college, the Government believes seizure of these items to be a proportionate response.

850.     In the case of stolen articles, arguably there is no interference where the item doesn’t belong to the student or pupil it has been seized from. It is possible that an item may be seized from its lawful owner. Nevertheless the Government believes that interferences is justified in order to establish legal ownership and to determine whether a crime has been committed.

851.     Safeguards are in place and these are described in the Commentary on the clauses.

Clauses 233 and 234: Recording and reporting the use of force in schools and FE Colleges

852.     Obligations are imposed upon governing bodies of FE institutions or schools to ensure that there is a procedure in place for recording each significant incident where force is used, and reporting such incidents to parents of students or pupils under the age of 20 as soon as is reasonably practicable after the incident has occurred. There is a potential interference with the rights of students or pupils and the rights of members of staff under Article 8(1) in respect of the making of the record and its retention by the institution or school. Reporting of information to parents without the consent of the students or pupils may also be an interference with the student’s or pupil’s rights under Article 8(1).

853.     The Government, however, believes any interference to be justified and proportionate. Interference with Article 8(1) rights of staff and students or pupils in relation to the making of the record and retaining it, will be justified in line with Article 8 (2) on the basis that the purpose of recording where force has been used on children serves to ensure that the power is not misused, and so is for the purpose of protecting children’s rights.

COMMENCEMENT

854.     Clause 255 provides for commencement. Clause 55, concerning the power of LEAs to arrange provision of education at non-maintained schools, and clauses 186 to189, which relate to children’s centres, will come into force at the end of two months from Royal Assent.

855.     Clause 255(3) lists those clauses which are brought into force in accordance with provision made by Welsh Ministers. As is clear in the subsection, some of the provisions apply to England and Wales so the Welsh Ministers have power to commence them so far as relating to Wales only; the remaining provisions in that list apply only to Wales

856.     All other provisions may be commenced by the Secretary of State by way of commencement order, but following consultation with the Department for Employment and Learning in Northern Ireland in respect of any provision of Part 7 which confers functions on Ofqual in relation to Northern Ireland.

857.     Subsection (5) provides that the Secretary of State must ensure that clauses 83 to 91 and 101 (which relate to apprenticeship schemes for persons aged 16 to 18) are in force no later than the day after the school leaving date for 2013.

GLOSSARY OF TERMS AND ABBREVIATIONS

ANNEX A: TERRITORIAL APPLICATION TABLE