Select Committee on Delegated Powers and Deregulation Second Report



Memorandum by the Department for Education and Employment


1.  The Clerk to the House of Lords Delegated Powers and Deregulation Committee has requested a memorandum from the Department for Education and Employment in respect of the Education (Schools) Bill 1997, first read on 11 June 1997.

    Outline and scope of the Bill

2.  The Bill has seven clauses and one schedule. Its provisions bring the assisted places schemes in England and Wales and Scotland to an end, while continuing to assist children who already hold such places. The Bill provides for:

a.      the repeal of the duty on the Secretary of State to operate the scheme in England and Wales and of the other statutory provisions relating to the scheme contained in sections 479 to 481 of the Education Act 1996 ("the 1996 Act"), and for the termination of the agreements made between the Secretary of State and schools participating in the scheme;

b.    the operation of the scheme in Scotland to be restricted so that it only applies to existing assisted pupils;

c.      pupils holding assisted places at the beginning of the 1997/98 school year to be eligible to continue to hold their places for that and subsequent years until the upper age limit of the school, although pupils receiving primary education will hold their places only until they have completed their primary education (save in special circumstances);

d.      the Secretary of State to make regulations in connection with the phasing out of the schemes.

    Proposals for subordinate legislation

3.  Clause 3(1) of the Bill allows the Secretary of State, by regulations, to make such provision as appears to him to be expedient in connection with the provisions of clauses 1 and 2. Particular types of regulations which may be made under clause 3(1) are described in subsections (2) and (3) of that clause. In essence these permit the Secretary of State to prescribe conditions that are to be complied with by former participating schools[1] in respects of the provision of assisted places for existing assisted pupils[2] under clause 2(1), in particular: as regards the fees that may be charged for such pupils; the extent to which those fees are to be remitted; the payment of grants for incidental expenses and remission of incidental charges incurred by pupils; and administrative arrangements under which schools may claim from the Secretary of State reimbursements of remitted fees and charges, and grants for incidental expenses.

4.  Subsections (2) to (7) and (9) of Clause 3 contain provisions which are similar to those which currently appear in sections 480(1) to (3) and 481 of the 1996 Act (although the provisions of s.480 (1)(a) and (d) relating to the selection and admission of new assisted pupils are not reproduced in the Bill for obvious reasons). But the following provisions of clause 3(2) are new:

      a. paragraph (b) which allows the Secretary of State to prescribe arrangements under which he may detemine maximum fee levels that may be charged by schools in respect of existing assisted pupils.

      b. paragraph (d) which would enable him to make lump sum payments to schools to discharge his future liabilities to reimburse remitted fees; and

      c. paragraph (f) which would permit him to authorise a school to provide an assisted place for an existing assisted pupil where his current school closes, merges or decides no longer to provide assisted places.[3]

5.    Clause 5(1)(e) of the Bill inserts new subsections (9A) to (9C) into section 75A of the Education (Scotland) Act 1980[4] ("the 1980 Act"). These extend the existing regulation-making powers contained in section 75A so as to allow the Secretary of State for Scotland to make provision by regulations in connection with the phasing of out of the Scottish scheme. The new subsection (9A) would allow provisions to be made in Scotland identical to those mentioned in paragraph 4(b) and (c) above.

6.    In considering the types of provisions which would be appropriate for sub-ordinate legislation, the Department has followed the established principles, namely:

      a.    avoiding too much technical and administrative detail on the face of the legislation, and keeping Bills shorter than they would otherwise be;

      b.    ensuring flexibility in responding to changing circumstances, and a measure of ability to make changes quickly in the light of experience and without the need for primary legislation;

      c.    allowing detailed administrative arrangements to be set up and kept up-to-date within the basic structures and principles set out in the primary legislation, subject to Parliament's right to challenge any inappropriate use of power; and

      d.    allowing flexible timing to get legislation right, to consult, and to change it where circumstances change.

Parliamentary scrutiny of Regulations

7.    By virtue of section 569(3) of the 1996 Act, regulations made under section 480 in respect of England and Wales are subject to the affirmative resolution procedure.

      In contrast, regulations made under section 481 (incidental expenses of pupils holding assisted places) and section 75A(9) of the1980 Act are subject to the negative resolution procedure: see section 569(2) of the 1996 Act and section 133(2) of the 1980 Act. The Bill provides for regulations under clause 3 and the new section 75A(9B) to (9C) of the 1980 Act (inserted by clause 5) to be subject to the negative procedure: see clause 3(8) of the Bill and section 133(2) of the 1980 Act.

8.    Clause 3(6) and (7) of the Bill provides for periodic reviews of regulations made under subsection (2)(a) or (b) of that clause, and consultation as regards regulations made under subsection (1) or (2) with bodies which are representative of assisted places schools. These arrangements reflect current legislation (see s.480(3) and (4) of the 1996 Act) and have served a useful purpose. But we take the view that the affirmative resolution procedure is no longer necessary given that the regulations will relate to progressively fewer numbers of existing assisted pupils. It is considered that the negative resolution procedure will provide a sufficient degree of Parliamentary scrutiny and is more in keeping with practice regarding regulations of this kind.

Proposals for discretionary powers

9.    The Bill confers the following discretionary powers on the Secretary of State -

      a.    a pupil selected during the 1996/97 school year for a new assisted place beginning in the 1997/98 school year would not be an "existing assisted pupil" if he does not take up the place at the start of the autumn term in 1997, unless the Secretary of State determines that that requirement should be waived. The Secretary of State may exercise this discretion where he is satisfied that it is reasonable to do so in view of particular circumstances (such as illness) relating to that child; and he could in no circumstances allow the child to take up an assisted place after the end of the 1997-98 school year (see clause 2(5) and the new subsection (1A) inserted into the 1980 Act by clause 5(1)(b)); and

      b.    an assisted pupil receiving primary education during the 1997/98 school year, will normally cease to hold that place at the conclusion of the school year in which he completes his primary education, unless the Secretary of State decides to allow him to continue as an assisted pupil for a period in which he is provided with secondary education. The Secretary of State can exercise this discretion where he is satsfied that it would be reasonable to do so in view of particular circumstances affecting that child, for example where it would be difficult for him to find a place at a maintained school because the normal age of transfer to secondary schools in the area in which he lives is later than age 11 (see clauses 2(2) and the new subsection (1B) inserted into the 1980 Act by clause 5(1)(b)).

      These are not, strictly speaking, delegated legislative powers, and will not be subject to any form of Parliamentary scrutiny.


10.    Clause 7 provides for certain provisions of the Bill, once enacted, to come into force on Royal Assent, others on 1 September 1997, and for the remainder on dates to be appointed by the Secretary of State in commencement orders. In accordance with usual practice, such orders will not be subject to Parliamentary procedure.

13 June 1997

1   See clause 4(1) for the definition of "former participating schools". Back

2   The term "existing assisted pupil" is defined in clause 2(5). Back

3   Fee levels are currently dealt with in participation agreements, but these will cease to have effect by virtue of clause 1(2) of the Bill. Back

4   Sections 75A and 75B, which established the assisted places places scheme in Scotland, were inserted into the 1980 Act by section 5 of the Education (Scotland) Act 1981. Back

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