The Education (National Curriculum) (Temporary
Exceptions for Individual Pupils) (England) Regulations 2000 (S.I. 2000/2121)
10. The Committee draws the special attention of
both Houses to these Regulations on the grounds that they are
in a number of places defectively drafted.
11. These Regulations, made principally under sections
365 to 367 of the Education Act 1996, enable head teachers of
certain maintained schools in England to direct that the provisions
of the National Curriculum should not apply to a pupil, or should
do so with modifications.
12. Regulation 1(3) defines the expressions "general
direction" and "special direction" as "directions
given in the circumstances specified in regulation 3(1)(b)(i)
or (ii) respectively". Regulation 3(1), which sets out the
circumstances in which directions may be given, is not further
subdivided. Regulation 4(1), which is headed "General and
special directions" distinguishes a direction disapplying
the National Curriculum altogether (sub-paragraph (a)) from a
direction modifying its application (sub-paragraph (b)). The Committee
therefore asked the Department for Education and Employment to
verify the reference in regulation 1(3) and explain the meaning
of those expressions.
13. The Department, in its memorandum printed in
Appendix 5, confirms that the reference is incorrect and should
have been to "regulation 3(1) and (2)". A "general
direction" is thus one made in the circumstances referred
to in regulation 3(1) and a "special direction" is one
made in the circumstances referred to in regulation 3(2), albeit
that either kind of direction may make either kind of provision
referred to in regulation 4(1). The Committee therefore reports
regulation 1(3) for defective drafting, as acknowledged by the
14. Regulation 2(1) revokes previous Regulations
providing for the giving of directions. Regulation 2(2) provides
that, notwithstanding the revocation of the previous Regulations,
anything done under the revoked Regulations "on a date prior
to the day before the day on which these Regulations come
into force" is to have effect as if done "on that date"
under the corresponding provision of these Regulations. The Committee
asked the Department to explain the intended effect of regulation
2(2) and, in particular, why the underlined words had been included
and whether "that date" was intended to refer to the
date of the act in question or the date on which these Regulations
came into force.
15. The Department in its memorandum explains that
the intended effect of this provision is to ensure that directions
given prior to the commencement of these Regulations remain operative
but are subject to the requirements of these Regulations. The
Department acknowledges that regulation 2(2) is incorrectly drafted.
Either "prior to the day" or "before the day"
should have been omitted. The reference to "that date"
is intended to refer to the date of the act in question. The Committee
reports regulation 2(2) for defective drafting, as acknowledged
by the Department.
16. Regulation 9(1) provides that, where a general
direction has been given, a further direction may be given beginning,
as the case may be, "(a) immediately after the end of the
operative period of the first direction; and (b) immediately after
the expiry of a further direction given under sub-paragraph (a)".
Regulation 10(2) provides that, where a special direction has
been given, a further direction may be given "beginning immediately
after the expiry of the operative period of the first direction".
But regulation 10(3) then specifies the number of times a further
special direction may be given, which in the case of sub-paragraph
(c) is "any number of times while paragraph (1)(c) applies".
Given the contrast between the wording of regulations 9 and 10,
the Committee asked the Department to explain whether the intended
effect of regulation 9(1) was that a further general direction
may be given any number of times or only twice, and why the regulation
did not expressly indicate the number of times such a direction
may be given.
17. In its memorandum the Department explains that
the intended effect of regulation 9(1) is that only two further
general directions may be given. Regulation 9(1)(b) only permits
a second further direction to be given immediately after the expiry
of the operative period of a further direction given in accordance
with regulation 9(1)(a), which in turn may only be given immediately
after the operative period of the first direction. Regulation
10(3) spells out the number of times a further special direction
may be given because a different number is permitted in different
18. The Committee does not find this explanation
satisfactory. Regulation 10(3) has the effect that the expression
"first direction" in regulation 10(2) does not always
bear its literal meaning, yet that meaning is intended in regulation
9(1). In the Committee's view the intended effect of regulation
9(1) should have been made clear and it therefore reports regulation
9(1) for defective drafting.
19. Regulations 9(2), 10(4) and 11(2) provide that
regulation 6 (which makes provision for information about directions)
shall apply to a further direction (of the kinds referred to in
those regulations) as it applies to a direction. The Committee
asked the Department to explain the need for these provisions
and, if needed, why they do not also apply regulations 5, 7 and
8 (which deal with the form and content, variation and revocation
of directions). The Department's memorandum states that it is
intended that "regulations 5 and 7" should apply to
further directions, but it was not thought necessary to state
this because regulations 5 and 7 are not expressed to apply only
to the first general or special direction. The Department does,
however, recognise that it would have been better to have referred
to these regulations as well.
20. Leaving aside the Department's failure to deal
with regulation 8, the Committee does not understand this explanation.
Regulation 6 equally is not expressed to apply only the first
general or special direction. The Committee considers it doubtful
whether it is necessary expressly to apply any of regulations
5 to 8 to a further direction. But to provide expressly for only
one of them to apply creates a doubt as to the intention in respect
of others. The Committee therefore reports regulations 9(2), 10(4)
and 11(2) for defective drafting, effectively acknowledged by
21. Regulation 11 provides for the giving of a further
direction based on different reasons from an earlier direction
but, in contrast to regulations 9 and 10, makes no provision as
to when the further direction is to commence or its maximum duration.
The Committee asked the Department to explain the reason for this.
In its memorandum the Department states that no such provision
is made because regulation 4, which deals with these matters,
will apply. As in the case discussed in the preceding paragraph,
the Committee recognises that this could be the case but considers
that the inclusion of paragraph (2) of regulation 11 creates a
doubt as to whether this is intended. It therefore reports regulation
11 for defective drafting.
22. The Department undertakes to correct these errors
immediately, if the Committee is of the view that this should
be done. The Committee considers that the defects identified are
sufficiently serious to require prompt amendment and therefore
urges the Department to make amending Regulations (which should
be issued free of charge to known recipients of these Regulations
in accordance with paragraph 3.24 of Statutory Instrument Practice)
at the earliest opportunity.