SEVENTEENTH REPORT
29 April 1998
By the Select Committee
appointed to report whether the provisions of any bill inappropriately
delegate legislative power, or whether they subject the exercise
of legislative power to an inappropriate degree of parliamentary
scrutiny; to report on documents laid before Parliament under
section 3(3) of the Deregulation and Contracting Out Act 1994
and on draft orders laid under section 1(4) of that Act; and to
perform, in respect of such documents and orders, the functions
performed in respect of other instruments by the Joint Committee
on Statutory Instruments.
SCHOOL STANDARDS AND
FRAMEWORK BILL
Introduction
1. This Bill
introduces a wide range of provisions relating to raising standards
in schools and the establishment of a new schools framework. The
provisions of the Bill on raising school standards include placing
limits on infant class sizes; the role and responsibilities of
local education authorities (including power for the Secretary
of State to secure proper performance of local education authority
functions); the setting up of Education Action Zones; and arrangements
for intervening in schools causing concern. The provisions setting
up the new schools framework relate to new categories for schools;
the establishment, alteration and discontinuance of schools; school
government; financial management; staffing and conduct; religious
education and worship; and arrangement for the admission and selection
of pupils.
2. This is
a large Bill which currently contains 133 clauses, with almost
twice that number of delegated legislative powers. Large numbers
of regulation-making powers can also be found in previous legislation
relating to schools, and the Committee accepts that this trend
has developed over a period of some years. It is, however, a trend
which the Committee views with considerable concern. The aim of
legislation should be that, in the absence of cogent reason to
the contrary, matters of important substance should be contained
within the primary legislation.
3. This Bill
deals with some issues of significant controversy, and clearly
it is for the House to consider and resolve these issues. The
Committee's task is to consider the substantial number of secondary
legislative powers which the Bill contains. At second reading
several speakers commented on the extent of these powers, which
enhances the case for giving the Bill careful scrutiny. The Committee
is well aware that the Bill covers an area in which what to some
might seem relatively minor matters of administrative detail can
be matters of the utmost importance to the individual families
concerned. However, some of the powers in the Bill are clearly
of much greater significance than others. In this report we draw
the attention of the House to those which, in the Committee's
view, are of most importance.
Limits on infant class
sizes
4. Clause 1
gives the Secretary of State the power to set limits on the size
of infant classes in maintained schools and fix the dates by which
such limits should be met. Regulations may set different maxima
for different year groups and allow exceptions. The power to make
such regulations will be exercised by statutory instrument subject
to the negative procedure.[1]
The responsibility for meeting an imposed limit is placed on the
Local Education Authority (LEA) and the governing body.
5. This is
a very significant power, with implications for families, teachers
and governing bodies up and down the country. It is important
to note that the clause itself does not state any numerical limit.
The explanatory memorandum explains that the Government intends
a limit of 30 to apply to all infant classes from September 2001,
but such a major change cannot be imposed overnight. It further
states that the use of regulations "allows for flexibility
in the imposition of the limits on different year groups; in particular
it should be noted that the date from which limits should apply
to the different year groups will be linked to the approaches
set out in the plans to be produced by LEAs under clause 2, so
decisions on the period from September 1999 to July 2001 must
await the evaluation of such plans by the Secretary of State.
The use of regulations to determine allowable exceptions also
permits the Secretary of State to react appropriately to any practical
difficulties which have not been envisaged."[2]
One area which will obviously be significant will be appeal arrangements,
as in over-subscribed schools children sometimes fail to obtain
a place because another child has been given one in error.
6. The Committee
accepts the need for flexibility in implementing this highly significant
change in schools policy, and thus the need for regulations. But
regulation-making powers should be used in this area only insofar
as they are essential to achieve the necessary flexibility. In
the view of the Committee, the most important parameters, including
the all-important target of the maximum number of pupils in an
infant class, should appear on the face of the Bill. The House
may therefore wish to consider whether the Bill should be amended
to include the target maximum number of pupils on the face of
the Bill. It may also think the use of negative procedure inappropriate
for such an important power, and may thus wish to consider amending
the Bill to allow for the affirmative resolution procedure.
Regulations governing
foundation bodies
7. Clause 21
defines different kinds of foundation and voluntary school and
different kinds of foundations separate from the school. It also
enables the Secretary of State to make regulations governing foundation
bodies established under this clause. Subsection (7) of this clause
allows the regulations to apply any provisions in Part II of the
Bill or to modify or replicate them. This is a very wide enabling
power which enables the Minister to modify the Bill itself. The
explanatory memorandum does not explain in any detail why such
a wide power is considered necessary, and the Committee finds
it difficult to justify such a power. In the absence of a satisfactory
explanation the House will doubtless wish to consider whether
the power is justified.
Responsibility and functions
of governing body
8. Clause 37(3)
provides that regulations may set out terms of reference for governing
bodies; define the respective roles of head teachers and governing
bodies; and confer functions on them. The explanatory memorandum[3]
explains that the regulations may set out in general terms how
head teachers and governing bodies should work together, and indicate
the parameters of governing body activity.
9. Clause 38
deals with the governing body's additional functions. It places
a new duty on governing bodies, in accordance with regulations,
to establish procedures for dealing with complaints about the
school. The explanatory memorandum[4]
explains that "the regulations might cover responsibility
for handling complaints; a requirement for a mechanism for appeals
to be heard; responses to complaints; and the records which should
be kept." The Committee accepts that the provisions would
be procedural. Nevertheless, they place a considerable additional
burden on governing bodies. The House may wish to consider
amending Clauses 37 and 38 of the Bill to provide for the affirmative
resolution procedure to be applied on the first occasion that
these powers are exercised.
LEAs' Aggregated Schools
Budget and financial schemes
10. Clauses
45 and 46 relate to the LEA's Aggregated Schools Budget and the
schools' budget share. Clause 47(2) and Schedule 14 require each
LEA to prepare a scheme for financing schools in accordance with
regulations. The regulations may cover such matters as the carrying
forward of surpluses and deficits, financial controls and the
terms on which the LEA will provide services. The reference
to carrying forward surpluses is likely to be of particular concern
to governing bodies and LEAs, for very different reasons. As the
explanatory memorandum[5]
makes clear, these three clauses represent a considerable change
to existing legislation. The House may consider the powers granted
by these three clauses to be sufficiently important to justify
amending the Bill to allow for the affirmative resolution procedure.
Modification of employment
law
11. Clause
76(1) enables the Secretary of State to modify employment law
in relation to the staffing of schools. Orders under the subsection
are subject to negative procedure and are limited to "modifications"
which the Secretary of State "considers necessary or expedient
in consequence of the operation of" certain provisions in
the Bill. This is not a Henry VIII power as the modified enactments
will continue to have effect without the modifications for all
other purposes but it is clearly important. Nevertheless, the
Committee considers that the negative procedure provided is appropriate.
Codes of practice
12. Clause
79 requires the Secretary of State to issue a code of practice
giving practical guidance to authorities and other bodies about
the exercise of their functions under the admission arrangements
Chapter of the Bill. Clause 80 deals with the making and approval
of that code. Subsection (2) requires consultation and subsection
(3) requires the code to be laid in draft before Parliament. Subsection
(4) allows each House 40 days to resolve not to approve the draft.
If no such resolution is passed the Secretary of State may issue
the code. Subsection (5) provides for a "commencement"
order to determine when the code is to take effect (the order
is not subject to Parliamentary control). The Committee considers
that the Parliamentary scrutiny and consultation arrangements
provided for are appropriate for a code of this importance.
13. Clause
119 provides for a code of practice for securing effective relationships
between LEAs and maintained schools. Subsection (3) requires the
Secretary of State to "consult such persons as he thinks
fit" before issuing the code but there is no provision for
Parliamentary consideration of a draft. This power, which the
Committee sees as being of considerable significance, is not discussed
in the explanatory memorandum. The House may wish to consider
whether the same Parliamentary scrutiny and consultation arrangements
as are provided for codes of practice made under clause 79 should
apply to clause 119.
Admission arrangements
14. Clause
84(8) empowers the Secretary of State to make regulations in connection
with the determination or variation of admission arrangements.
The power is a wide one, extending to "such further provision
... as the Secretary of State thinks fit". The explanatory
memorandum states that the regulations will contain "matters
of detail" without indicating the kind of provision which
may be sought in this very sensitive area. In view of the sensitive
nature of the subject matter, the House may consider that the
Bill should be amended to ensure that the power is more tightly
circumscribed.
Grammar schools
15. Clauses
99-102 relate to admission arrangements for grammar schools. Orders
under clause 99, which are not subject to any Parliamentary procedure,
relate to the designation of grammar schools. The Department justifies
this by saying that each order will relate to one school only.
The Committee accepts that it would not be practicable for Parliament
to consider orders relating to individual grammar schools.
16. Clause
100 enables the Secretary of State to make regulations enabling
parents, at their request, to be balloted to determine whether
particular grammar schools or groups of grammar schools should
retain their selective admission arrangements. The ballot regulations
may make provision for determining the parents who are eligible
to request a ballot and vote in it; requiring a request for a
ballot to be made by means of a petition and signed by such number
of eligible parents as may be specified or determined in accordance
with the regulations; prescribing other requirements in relation
to any such petition; prescribing the designated body to which
any such petition is to be sent and which, under arrangements
made by the Secretary of State, is to make the arrangements for
holding the ballot; requiring prescribed bodies or persons to
provide prescribed information to the designated body; prescribing
the terms of the question on which a ballot is to be held and
the manner in which such a ballot is to be conducted; specifying
how the result of a ballot is to be ascertained; enabling the
Secretary of State to declare a ballot void and require the holding
of a fresh ballot; and requiring action to be taken within such
period as may be specified in or determined in accordance with
the regulations.
17. These
clauses of the Bill have already attracted considerable controversy
and the Committee would normally have expected the Department's
explanatory memorandum to provide detailed justification for the
proposed powers. This is not provided, and the memorandum repeatedly
states that the subject is an appropriate one for regulation because
of the amount of detail involved.[6]
In the view of this Committee, these powers cover important matters
of substance which cannot be dismissed as mere details. The House
may wish to consider whether the most important issues of substance
should be decided by Parliament and appear on the face of the
Bill. These issues include the specifying of those parents who
will be eligible, the percentage of eligible parents who will
have to petition against grammar schools to trigger a ballot and
the nature of the majority needed in the ballot to bring about
change. The House may also consider that the first regulations
should be subject to the affirmative procedure.
School lunches
18. Clause
107 empowers the Secretary of State to make regulations (subject
to negative resolution) prescribing nutritional standards for
school lunches. The subject of this power is an important one.
Government nutritional guidelines for school meals in England
and Wales were discontinued in 1980. Regulations made under section
49 of the Education Act 1944 had required Local Education Authorities
(LEAs) to provide pupils with a school dinner which was "suitable
in all respects as the main meal of the day". This requirement
was replaced by section 22 of the Education Act 1980 which replaced
LEAs' duties with discretionary powers, except for children entitled
to free school meals. Further changes were made by the Social
Security Act 1996, which limited the number of children entitled
to free school meals.
19. Clause
107(5) provides that "school lunch" has the meaning
given by regulations made by the Secretary of State. The memorandum[7]
fails to explain either why the term needs definition or why that
definition cannot appear on the face of the Bill. The real purpose
of this clause is to ensure the nutritional quality of school
meals and the Committee accepts that this is an appropriate area
to leave to regulations. But the Committee cannot see the need
for the Minister to be able to define what a "school lunch"
is, and in any case considers that it is inappropriate for Parliament
to allow a minister power to determine the scope of a power conferred
on him. The House may wish to consider whether this clause should
be amended to remove the power to define "school lunch"
in clause 107(5) and, if a definition is needed, to put it in
the Bill.
Nursery education
20. Clause
111 places a duty on LEAs to secure that the provision of nursery
education for their area (whether provided by the LEA or otherwise)
is sufficient to meet the needs of resident children who have
not reached compulsory school age but "have attained such
age as may be prescribed". Although the Department's memorandum
(paragraph 159) states that this means prescribed by order, the
definition of "prescribed" in clause 130(1) has the
effect of attracting a regulation-making power subject to negative
resolution procedure. The Committee sees no objection to this
power.
Powers not subject to
Parliamentary control
21. Subsection
(2) of clause 127 provides that the provisions of the Bill listed
there are not to be exercised by statutory instrument. The list
is long but the Committee sees no cause for concern about any
of the powers (some of which we have discussed earlier), the majority
of which are in effect, administrative acts in respect of which
statutory instrument procedure is unnecessary.
22. In addition
to the powers listed in subsection (2), the powers listed in subsection
(4) will not be subject to Parliamentary control. Again the Committee
sees no cause for concern. The powers are either commencement
powers or very limited powers or embody decisions peculiar to
a particular body or set of facts.
Henry VIII Powers
23. There are
three Henry VIII powers in the Schedules to the Bill (paragraph
19 of Schedule 18 (appeals against exclusion of pupils), paragraph
16 of Schedule 24 (admission appeals) and paragraph 14 of Schedule
25 (appeals by governing bodies)). Each allows the Secretary of
State to make such amendments to the Schedule as he considers
expedient. These powers are subject to negative procedure and
are similar to powers conferred by the Education Act 1997. The
Department's memorandum does not explain why it is thought that
amendments to these Schedules may be needed and the House may
wish to ask the Minister to explain the need for these Henry VIII
powers, which are in terms wide enough to allow radical changes
to the major provisions about appeals. The House may also wish
to consider whether the Bill should be amended to provide for
the affirmative resolution procedure for these Henry VIII powers.
Recommendation
24. The
Committee wishes to draw to the special attention of the House
its comments on Clauses 1 (infant class sizes), 21 (regulations
governing foundation bodies), 37 and 38 (responsibility and functions
of governing body), 45-47 and Schedule 14 (Aggregated Schools
Budget and financial schemes), 84 (admission arrangements), 99-102
(grammar schools), 107 (definition of school lunches), 119 (relationships
between LEAs and maintained schools) and to its comments in the
preceding paragraphs about certain other regulation-making powers
in the Bill, including the Henry VIII powers in Schedules 18,
24 and 25. There is nothing else in the Bill which the Committee
wishes to draw to the attention of the House.
NORTHERN IRELAND (ELECTIONS) BILL
Introduction
25. This Bill
provides for the establishment of a new Northern Ireland Assembly
as envisaged in the Agreement of 10th April, and for elections
to it on 25th June. The "machinery" provisions will
come into force on passing but the "substance" cannot
come into force unless the referendum produces a majority supporting
the agreement (clause 8(3)).
Powers
26. Clause
2(5) and (6) (read with clause 6(2)(b)) allow the Secretary of
State to adapt the procedures for local or Parliamentary elections
to make them appropriate for elections to the Assembly. This has
become a familiar feature (eg in legislation enabling a referendum
to be held) and, in accordance with precedent, affirmative procedure
is applied (clause 6(2)(a)).
27. Clause
3 allows the Secretary of State to make provision for filling
casual vacancies in the Assembly's membership. Again affirmative
procedure is applied.
28. There is
a commencement power in clause 8(2). As is customary, it is not
subject to Parliamentary control. (Its link with the referendum
has been explained above).
29. Paragraph
5 of the Schedule allows the Secretary of State by order to provide
for salaries and allowances to be paid to members of the Assembly.
There is no Parliamentary control over such an order (but control
over money matters is for the Commons who have passed the bill
in its present form).
Recommendation
30. There is
nothing in the Bill which the Committee wishes to draw to the
attention of the House.[8]
1 By virtue of section 127 of the Bill. Back
2 Paragraph 14. Back
3 Paragraph 61. Back
4 Paragraph 64. Back
5 Paragraphs 76-89. Back
6 Explanatory memorandum, especially paragraphs 139, 142, 143, 146. Back
7 Explanatory memorandum, paragraphs 154-156. Back
8 This report is also published on the Internet at the House of Lords Select Committees Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back
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