Education and Skills Bill
5. The principal features of this five-Part bill are summarised on pages 2 to 5 of the Explanatory Notes. The Department for Children, Schools and Families has prepared a memorandum for the Committee, printed at Appendix 2, explaining the delegations of legislative power proposed in the bill and the parliamentary procedure which is to apply on the exercise of each power.
Henry VIII Powers
6. Five Henry VIII powers conferred by the bill are listed at paragraph 6 of the memorandum. Those in clause 3(5) and in provisions inserted by clause 71(3) & (8) enable the amendment by affirmative order of provisions which either define the age group to which a clause or group of clauses applies or determine the scope of a provision by reference to qualifications to which it relates (we draw to the attention of the House that the second subsection inserted by clause 71(7) contains a dehybridising provision); and clause 151(1)(b) enables supplementary, incidental, consequential or transitional provision to be made by affirmative order in Acts passed before the end of the present Session. None of this provision is in our opinion inappropriate.
7. The remaining Henry VIII powers in clause 77(3)(c), and also in clause 118(5)(c) (but not mentioned in paragraph 6 of the memorandum), enable periods of time specified in clause 77(2) and clause 118(3)(a) to be amended by negative regulations. For instance, an institution is regarded as providing part-time education for the purposes of clause 77(1) if it provides education "for at least 12.5 hours a week, for at least 28 weeks, during the academic year ..." (clause 77(2)(a)), and the number of weeks can be amended by the regulations. While regulations under either of these clauses will undoubtedly affect whether certain institutions are "independent educational institutions" or "independent post-16 colleges" under Part 4, the provision will apply only at the margins of either definition and we do not consider the negative procedure to be inappropriate.
Extension of provisions of bill — clauses 5(1), 49 and 118(1)
8. Three clauses enable regulations to extend the application of provisions of the bill to persons or matters to which they would not otherwise apply. None of those delegations is unusual in principle, and there is nothing in any of the particular provisions for extended application which we regard as inappropriate, especially in view of the required level of parliamentary scrutiny, which is affirmative in each case.
Financial penalties — clauses 22(2), 28(3) and 47(4)(b)
9. These three clauses make provision for the imposition of a financial penalty by a local education authority (LEA). Where an employer fails to comply with clause 21(1), or with the terms of an enforcement notice under clause 27, the LEA may issue a penalty notice under clause 22 or 28. In each case, the amount of the penalty is to be entirely a matter for negative regulations. Should the employer fail to pay the penalty, the amount is recoverable by the LEA under clause 52 as though it were due under an order of the county court. This policy is similar to that of the Regulatory Enforcement and Sanctions Bill, sent by this House to the Commons, but that bill provides for an appeal from the civil penalty regime whereas we note that, as respects clauses 22 and 28, this bill does not. Especially in this context we consider that, unless the bill is amended to specify a maximum penalty, the affirmative procedure should be required for the first exercise of the powers in clauses 22(2) and 28(3) and for any subsequent exercise of those powers which increases any prescribed amount by more than is necessary to reflect changes in the value of money.
10. Clause 47 also provides for a financial penalty of an amount to be determined in negative regulations without any maximum specified in the bill; but the circumstances here are different. Where a young person fails to comply with clause 2, the LEA may serve a notice under clause 39 and then, in the event of continued non-compliance, an attendance notice under clause 40. Breach of an attendance notice is an offence under clause 45, but the LEA may give the young person a penalty notice under clause 47 by way of an opportunity to pay a civil penalty as an alternative to prosecution (clause 47(2) & (3)(b)). In this case, the maximum amount of the penalty for which the regulations may provide is likely to be self-limiting because, unless it is below the maximum fine that may be imposed on conviction under clause 45 (level 1, currently £200), there will be little incentive to opt for the penalty instead of prosecution. While the negative procedure is not inappropriate for setting the level of penalty under clause 47(4), we consider that the bill should also state that the maximum civil penalty may not exceed the maximum fine that may be imposed on conviction.
Directions — clause 55
11. Clause 55 enables the Secretary of State to give directions to a local education authority relating to the exercise of its duty under clause 54 to make available to young persons and relevant young adults for whom it is responsible such services as it considers appropriate to encourage, enable or assist the effective participation of those persons in education or training. A direction made using this power may, amongst other matters:
specify the services to be made available;
specify the descriptions of individuals who may be involved, in ways specified in the direction, in providing them;
require the local education authority to secure in the provision of services co-operation with certain other persons or bodies;
impose requirements as to record keeping and the provision of information.
In their memorandum, the department argue that directions of this nature are not legislative (paragraph 47) but we disagree. These directions have a legislative character and, were it not for the fact that they replace a similar if less specific power found at section 114 of the Learning and Skills Act 2000, we would have recommended that the power at clause 55 be exercisable by regulations subject to negative procedure.
Prohibition on participation in management — clause 114
12. Clause 114 enables the Secretary of State to prescribe in regulations subject to the negative procedure the grounds on which the appropriate authority (usually the Chief Inspector of Education, Children's Services and Skills) may give directions prohibiting or restricting the participation of unsuitable persons in the management of an independent educational institution. The memorandum explains that the purpose of the power is to prevent unsuitable people who would not otherwise be barred (e.g. under the Safeguarding Vulnerable Groups Act 2006) from being involved in the management of an independent educational institution and therefore in a position to influence the way the institution is operated (paragraph 75). The memorandum gives examples of the sort of grounds likely to be prescribed, including glorification of terrorism and membership of a proscribed organisation.
13. The power closely reflects that in section 167A of the Education Act 2002 which is likewise subject to the negative procedure (though that power has not been exercised because that section is not yet in force). Were it not for this precedent, we would have been inclined to recommend that the first exercise of this power should be subject to the affirmative procedure, so that the House might have had the opportunity to approve the grounds on which persons might be regarded as unsuitable.
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