ANNEX (continued)
CLAUSE BY CLAUSE ANALYSIS
OF DELEGATED POWERS (Clauses 1 - 26)
Clause 1: Power to set
infant class sizes
13. Clause 1 requires
the Secretary of State to make regulations that will impose limits
upon the number of pupils who may be in an infant class with a
single qualified teacher. Subsection (1) enables him to
state in regulations what the limits shall be, and the dates from
which they will apply. Subsection (3) provides for regulations
to impose different limits, and/or different dates for different
year groups in schools, and for regulations to specify circumstances
in which limits shall not apply or shall apply in a specific manner.
14. The Government
have announced that a limit of 30 will apply to all infant classes
from September 2001. It is clear that such a major change cannot
be imposed overnight. 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. Given such a number
of imponderables, and the level of detail involved, it is considered
that it would not be possible to implement the policy without
the flexibility afforded by a regulation making power.
Clause 2: Plans by LEAs
for reducing class sizes
15. The use of
a regulation making power in relation to such documents to set
out the detail of what is to be provided, and the consultation
to be undertaken, is well presented. This approach provides the
essential flexibility to keep the detail under review and make
changes where necessary.
16. Subsection
(2) enables the Secretary of State to determine the contents
and form of the statements. Subsection (3) permits regulations
to prescribe the consultation that LEAs shall carry out when preparing
statements. Subsection (4) allows regulations to impose
a duty upon other bodies or persons (e.g. governing bodies of
schools) to provide LEAs with the information they may require
to enable them to prepare statements. Subsection (5) permits
the Secretary of State to determine in regulations the date by
which statements must be submitted for his approval, and allows
him to impose different dates upon different LEAs (although he
may grant an extension of time to an individual LEA without having
to make further regulations).
17. Statements
are likely to be relatively complex documents which will need
to contain a large amount of information. It is however important
that they can be produced without placing undue burdens on schools
or LEAs. LEAs and others will therefore be consulted about the
details of the statements they will have to provide. The use of
regulations will allow the Secretary of State to have regard to
issues raised in this consultation. We believe it is therefore
appropriate for regulations, made by negative resolution, to be
used.
Clause 3: Payment of
grant in connection with reductions in infant class sizes
18. Clause 3
requires the Secretary of State to make regulations providing
for the payment of grants to LEAs in respect of the expenditure
they may incur in the course of securing the limits imposed under
clause 1 (see subsection (1)).
19. Subsection
(2) requires the Secretary of State to provide in regulations
for grant to be withheld from LEAs whose statements he has not
approved, and to have regard to the arrangements set out in statements
when determining whether any grant (and if so, what amount) is
to be paid to LEAs. Subsection (3) permits the Secretary
of State to make the payment of grant subject to certain conditions,
and to require LEAs receiving grant to comply with such conditions.
20. Grants will
be paid annually and the conditions to which the payment of grant
will be subject will be reviewed each year. It would not be possible
to achieve this flexibility without a regulation making power.
Clauses 6 and 7: Education
Development Plans
21. Clause 6
enables the Secretary of State to make regulations covering the
content and frequency of Education Development Plans which LEAs
are to be required to prepare. Education Development Plans consist
of a statement of proposals by LEAs for raising standards of pupils
and improving performance of schools; and annexes to the statement.
22. Subsection
(1) allows the Secretary of State to determine in regulations
the intervals at which LEAs must submit Education Development
Plans. Subsections (4) and (5) provide for the Secretary
of State to issue regulations setting out the content of the statement
of proposals and the content of the annexes to the statement.
Under subsection (8) LEAs must have regard to any guidance
given from time to time by the Secretary of State.
23. These provisions
will be detailed. They are likely to require revision to allow
changes in local arrangements and timescales. For these reasons,
they seem an appropriate subject for regulations (subject to negative
resolution) rather than primary legislation.
24. Clause 7 deals
with the approval, modification and review of the LEA's statement
of proposals. Subsection (1) allows the Secretary of State
to stipulate in regulations the date by which LEAs have to submit
their statement of proposals for his approval. Subsection 4(b)
enables the Secretary of State to determine in regulations the
date whereby an LEA must submit a revised statement if required
by the Secretary of State. Subsection (9) allows the Secretary
of State to set out in regulations the manner and date by which
LEAs shall publish their Education Development Plan and the persons
to whom it should be provided. Regulations subject to negative
resolution will allow the necessary flexibility over the dates.
Clause 9: Parent representatives
on Education Committees
25. This clause
allows the Secretary of State to make regulations, subject to
negative resolution, about the inclusion on LEA committees of
representatives of parent governors at maintained schools.
26. The regulations
will enable the detail of the arrangements for parent governor
representatives to be set out. Some of the issues which regulations
may prescribe are listed in subsections (7) and (8). They
include: the number of representatives; election procedures; voting
rights; terms of office; and any exceptions allowing authorities
with a small number of schools to appoint representatives of parents,
rather than parent governors. This level of detail would not be
appropriate for primary legislation.
27. The Government
will be consulting on the proposed content of the regulations.
The use of regulations will allow further time to consult with
the various interested parties, after Royal Assent, to ensure
the detail is appropriate and that broad consensus is achieved.
Regulations will also allow a degree of flexibility to adjust
arrangements in response to experience and/or as circumstances
change.
Clause 10: Establishment
of Education Action Zones
28. Subsection
(1) allows the Secretary of State to make an order creating
an Education Action Zone (EAZ) in a particular area for the purpose
of improving educational standards. The order will specify which
schools constitute the EAZ. Subsection (2) allows the Secretary
of State to make an order extending the duration of the EAZ from
3 to 5 years, with the agreement of each participating school.
Subsection (3) allows the Secretary of State, by order,
to add to the list of schools in the EAZ, after its establishment,
by including any school subject to special measures (clause 15
of the Bill), providing that the school to be added, as well as
the participating schools, agree. Such matters are clearly apt
to be addressed in subordinate legislation.
29. Subsection
(7) allows the Secretary of State to make an order to apply
the EAZ provisions to Wales. Subject to the passage of the Government
of Wales Bill, it is anticipated that the establishment and operation
of EAZs in Wales would be a matter for the Welsh Assembly.
Clause 11: Establishment
of the Education Action Forum for the Zone
30. Subsection
(1) provides for an Education Action Forum to be set up for
each EAZ established under clause 10(1). An order made under subsection
(2) provides for the constitution of the Education Action
Forum and its membership. The order requires the Forum to include:
an appointee from each governing body that wishes to provide one;
and one or two members appointed by the Secretary of State. This
is the minimum prescription for the membership of the Forum. We
would expect the order to provide for a variety of membership
to reflect the local circumstances in the EAZ and therefore it
would not be appropriate to deal with this in primary legislation.
31. Subsection
(5) allows the Secretary of State to make an order dissolving
the Education Action Forum when the EAZ ends, and make provision
for transfer of property, rights, liabilities of the Forum and
preparation of final accounts. Again, this will need to reflect
specific local circumstances and is therefore an appropriate matter
for secondary legislation.
Clause 12: Functions
of the Action Forum
32. Subsection
(3) allows regulations to be made relating to governing body
functions carried out by the Forum under subsection (2)
in terms of:
a. the
circumstances in which governing bodies can make arrangements
with the Forum;
b. the
procedures they must follow to do this;
c. the
procedures the Forum must follow when taking on these functions;
d. the
statutory provisions relating to governing bodies which will apply,
with any prescribed modifications, to the Forum, when powers have
been ceded to it under 12(2)(b).
33. The intention
of clause 12 subsections (2) and (3) is to allow governing
bodies to choose from two different ways of using the Forum, if
they want to. These are:
a. agency
powers, where the Forum carries out the function as an agent
of the governing body. Schools will be able to choose one, or
a combination of functions, to pass to the Forum, to be described
in regulations under subsection (3). The Bill provides
that the governing body remains legally responsible and can decide
at any point if it wishes to take back the function from the Forum.
b. ceding
powers to the Forum. Governing bodies must select all of a specific
group of functions, to be passed to the Forum. The group of governing
body functions available for ceding will be described in regulations
under subsection (3). The Bill provides for the functions
to become the Forum's legal responsibility, and remain so for
the life of the EAZ.
34. The details
of which functions may be ceded is a matter of administrative
detail to be kept under review in the light of experience, and
which would not be appropriate for inclusion on the face of the
Bill.
Clause 13: Disapplication
of Teachers' Pay and Conditions Document
35. Subsection
(4) allows the Secretary of State, on receipt of an application
from a school in an EAZ, to make an order disapplying subsections
(6) and (7) of the Teachers' Pay and Conditions Document. Such
orders will be specific to a particular school and are clearly
appropriate for delegated legislation.
Clause 20: New categories
of maintained school
36. Subsection
(6) allows the Secretary of State to set the "appointed
day" (the day on which the new categories of school take
effect) by order (S.I. but not subject to parliamentary procedure).
This is necessary because the exact day may depend to some extent
on the timing of Royal Assent. Ministers made it clear in Commons
Committee that they expect the appointed day to be 1 September
1999.
Clause 21: Kinds of foundation
and voluntary schools and types of foundation
37. Subsection
(5) allows the Secretary of State to make regulations (S.I.:
negative resolution) governing the establishment, membership,
functions and winding up of foundation bodies, and the process
by which schools join or leave a group foundation. Subsection
(6) specifies that these regulations may, in particular, provide
for:
a. the
transfer of property to and from foundation bodies;
b. the
appointment of foundation governors by foundation bodies;
c. a
model instrument of government for foundation bodies;
d. the
resolution of disputes within groups; and
e. a
requirement for the governing body of a school leaving a group
to publish statutory proposals under certain circumstances.
38. Subsection
(7) allows the regulations to apply any provisions in Part
II or to modify or replicate them.
39. These provisions
will be very detailed. They may well need adjustment in the light
of practical experience with the first group foundations, and
they will probably only be relevant to a small number of schools.
For all these reasons, they are an appropriate subject for regulations.
40. Subsection
(8) allows the Secretary of State by order (not S.I.) to modify
the instrument of government adopted by a foundation body. This
will be necessary when, for example, a school joins or leaves
a group. Such modifications will be specific to individual cases,
and will not be of interest to the wider public. It is therefore
appropriate for them to be made by orders which are not S.I.s.
New arrangements for
the organisation of schools
41. Clauses
23-34 inclusive together with Schedules 4 to 8 provide for
new arrangements for dealing with proposals for change to the
organisation of maintained schools. The Government believes that
these would more appropriately be handled at local level.
Clause 23: School organisation
committees
42. Clause 23
provides for the establishment in each LEA area in England of
a school organisation committee. Subsection (2) provides
that the constitution of the committee shall be the subject of
regulations and subsection (3) requires those regulations
to secure representation of certain school providers on each school
organisation committee. It is possible that in the light of experience
it will be desirable to make some changes to the constitution
of the committees. Regulations under this clause are likely to
be made in conjunction with those under paragraphs 2 and 5 of
Schedule 4.
Clause 24: Adjudicators
43. Clause 24
provides for the appointment in England by the Secretary of State
of adjudicators. Subsection (2) provides for regulations
to determine the allocation of matters required in the Bill to
be referred to the adjudicator. Such regulations, which are likely
to be made in the same instrument as regulations under paragraph
5 of Schedule 5, will concern matters of administrative detail
and are thus an appropriate subject for secondary legislation.
Clause 25: School organisation
plans
44. Clause 25
provides for the preparation and approval of a school organisation
plan for each LEA area. Subsection (3) provides for regulations
to describe the form and content of the plan and subsection
(4) for the procedure for preparation and approval. Subsection
(5) describes some of the matters which can be included in
these regulations. These regulations will include technical and
procedural detail, which might be revised over time.
45. Subsection
(6) provides for the preparation and adoption of a school
organisation plan by each LEA in Wales, and provides for regulations
to prescribe the procedure for preparation and adoption.
46. Subsection
(7) describes some of the scope of these regulations. As with
the provisions for England, these will include technical and procedural
detail which might change over time.
Clause 26: Power to require
committees for adjudicators for Wales
47. Clause 26
enables the Secretary of State for Wales to make regulations which
provide for the establishment of school organisation committees,
and the appointment by the Secretary of State of adjudicators,
for Wales. It also allows for the provisions of clauses 23 and
24, Schedules 4 and 5 and other provisions relating to adjudicators
and school organisation committees to be applied (with or without
modification) in relation to school organisation committees or
adjudicators in Wales.
48. With very few
exceptions it is the intention that the powers of the Secretary
of State for Wales to make secondary legislation will transfer
to the Welsh Assembly, subject to the passage of the Government
of Wales Bill. Clause 26 will enable the Welsh Assembly to introduce
school organisation committee and adjudication arrangements in
Wales, if it wishes (assuming the powers have not already been
exercised by the Secretary of State for Wales prior to devolution).
49. The provisions
relating to school organisation committees and adjudicators will
have been considered by Parliament in the context of England.
It is therefore considered that this modest power to apply those
provisions to Wales should be subject to negative resolution procedure.
If the power is exercised by the Welsh Assembly, the Assembly's
approval would be required under a procedure set out in what is
currently clause 68 of the Government of Wales Bill, which will
apply to all Assembly subordinate legislation.
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