Select Committee on Delegated Powers and Deregulation 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.



  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.


  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.



  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)).


  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).


  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 (, where further information about the work of the Committee is also available. Back

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