APPENDIX 1: EDUCATION AND SKILLS BILL
— GOVERNMENT AMENDMENTS
Supplementary memorandum by the Department for
Children, Families and Schools
1. This supplementary memorandum is to accompany
the tabling of a number of Government amendments to the Education
and Skills Bill ahead of Lords Report stage.
Summary of relevant Government amendments
Part 1 - Raising the participation age
2. Amendments 25 to 30 and 63 on the Marshalled
List follow up on the recommendations from the Constitution Committee
to give employers a route of appeal against fines issued for non-compliance
with duties in the Bill. Amendments 53, 54, 214 and 215 follow
up on the recommendations of the Delegated Powers and Regulatory
Reform Committee in its 10th Report of the Session
2007-08.
3. Further Amendments on the Marshalled List
ensure that no young person can receive a custodial offence in
relation to failing to pay a fine imposed for the offence of failing
to comply with an attendance notice without reasonable excuse.
Part 4 - Independent Schools
4. Amendments 78 to 183 and 187 to 204 reverse
the proposed transfer of the registration and regulation of independent
educational institutions and the approval of non-maintained special
schools to the Chief Inspector. Further, Amendments 184
to 186 introduce new transitional provisions into Part 4 of the
Bill.
Part 5 - Miscellaneous and General
5. An amendment to clause 196, which provides
a power for a Governing body to refer a pupil to educational provision
for improving behaviour, to provide further reassurance
that any direction would be a short-term measure only.
6. Amendments 208, 219, 220 and 238 remove the
obligation on schools and Local Authorities to administer the
National Curriculum tests at Key Stage 3 from 2009.
Details of the impact on the delegated powers
within the Bill
PART 1, CHAPTER 3 -
EMPLOYERS
7. Clause 22(2) provides for the
amount of the financial penalty that a local education authority
may require an employer to pay, where they have employed a young
person who is subject to the duty to participate and who has not
made appropriate arrangements for training or education, to be
determined in accordance with regulations. Amendments 214 and
215 propose that these regulations be subject to the affirmative
procedure, except if the effect is to reduce the amount of the
penalty. This is also the case for regulations made under clause
28(3), which provide for the amount of financial penalty the local
education authority may issue to an employer, where they have
failed to comply with an enforcement notice or have failed to
give effect to a required variation in the terms and conditions
of employment. It is necessary to specify the amount of such financial
penalties in secondary legislation in order to allow it to be
altered in response to changing costs without having to amend
primary legislation.
8. Amendments 21 to 43 and 63 make amendments
to the provisions relating to employers that are contained in
Chapter 3 of Part 1. These amendments set out a procedure for
making objections to the local authority following the giving
of a penalty notice pursuant to clause 22 or clause 28 of the
Bill. They also set out a right of appeal to the First-tier Tribunal
following the giving of a penalty notice. Amendments 23, 24, 63
and 37 insert new clauses after clause 22 and clause 29. Subsection
(5) of these new clauses makes provision for the period of time
in which a local education authority can consider and respond
to a notice of objection by an employer to be prescribed in regulations
subject to the negative procedure. This is administrative detail
and allows for flexibility.
PART 1, CHAPTER 5 -
ATTENDANCE NOTICES
9. Clause 47(4) provides the power for
the Secretary of State to make regulations about penalty notices
to be issued in the event that the young person fails to comply
with an attendance order. The regulations relate to the form and
content of penalty notices, their amount and the procedures for
them to be issued and paid. The scope of these regulations, which
are to be subject to the negative resolution procedure, is limited
on the face of the Bill to the operation and administrative details
of issuing a penalty notice. This is a model similar to that which
is already in operation, also subject to the negative procedure,
in the case of penalty notices issued in relation to the parents
of children of compulsory school under powers contained in sections
444A of the Education Act 1996 and section 105(1) of the Education
and Inspections Act 2006.
10. Regulations made under clause 47(4) may also
make provision for penalties of different amounts to be payable
in different cases or circumstances - for example, if it is not
the first penalty notice the young person has received. It is
necessary to prescribe the amount of the penalty in regulations
in order to provide the flexibility to increase the amount over
time to respond to changing costs. Amendments 53 and 54 specify
that the amount of the penalty may not exceed the maximum fine
that the young person could receive in the Youth Court (a level
1 fine). The provisions relate to the operational arrangements
and so are not specified on the face of the Bill. This is again
similar to the model which is in operation in the case of penalty
notices issued in relation to the parents of children of compulsory
school age. We therefore consider the negative procedure to be
appropriate.
11. Amendments 21 to 31 insert new clauses after
clause 48 and make amendments to clauses 149 and 151 and Schedule
1 to the Bill. The purpose of these amendments is to remove the
theoretical possibility that a young person could receive a custodial
sentence from the magistrates' court once they reach the age of
18. This is provided for by transferring the fine to the county
court for enforcement.
12. Subsection (9) of the second new clause to
be inserted by Amendment 22 after clause 48 contains a power for
the Lord Chancellor to make an order amending subsections (4)
or (7) of that clause. This provision is needed as it may emerge
over time that there are further powers or provisions relating
to enforcement action in the magistrates' court that need to be
preserved or removed in addition to those already specified in
subsections (4) and (7). As it contains a power to amend primary
legislation it is subject to the affirmative procedure. There
is a similar provision in subsection (3) of the fourth new clause
to be inserted by Amendment 24 after clause 48. This is also subject
to the affirmative procedure given that it contains a power to
amend primary legislation.
13. The regulation making power that is in the
fifth new clause to be inserted after clause 48 enables the Lord
Chancellor to make regulations providing for the repayment of
sums recovered by a local authority after enforcement action has
taken place in the county court against a person over the age
of 18. This is an administrative matter of detail which it is
appropriate to deal with in regulations. These regulations are
subject to the negative procedure given that what is at stake
is administrative detail.
PART 1, CHAPTER 6 -
MISCELLANEOUS
14. Clause 55 enables the Secretary of State,
by order, to make provision for Wales corresponding to Clauses
19-30, the duties on employers, and related provisions in clauses
31, 32, 33, 49, 50 and 53. This power would only apply if the
National Assembly of Wales made a Measure that appeared to the
Secretary of State to correspond to clause 2 of the Bill. The
National Assembly of Wales could not currently make such a Measure,
but could potentially gain the competence to do so in future through
a Legislative Competence Order. This power is necessary to ensure
that if the participation age was raised in Wales in future, the
duties on employers could be applied in Wales too, and would apply
in the same way to employers on either side of the border. This
is important in order to avoid confusion amongst employers about
what is required, and to minimise the potential or perceived burdens
on employers. An order made under this power would be subject
to the affirmative resolution procedure, and the Welsh Ministers
would have to be consulted.
PART 4 - INDEPENDENT SCHOOLS
15. Clause 95 allows the Secretary of
State to prescribe the intervals at which independent educational
institutions will be inspected on an ongoing basis. There is no
substantive change to the delegated power - i.e. once Amendments
107 - 109 are accepted, the clause will continue to allow the
Secretary of State to prescribe the intervals at which inspections
of independent educational institutions must be conducted by the
Chief Inspector. This power to prescribe intervals remains subject
to the negative resolution procedure. However, these amendments
will result in a change to the way the power operates. As currently
drafted the clause requires the Chief Inspector to carry out inspections
at the prescribed intervals unless an inspection has been carried
out and a report provided to the Chief Inspector by an independent
inspectorate. These amendments amend this power so that
the Chief Inspector is required to carry out inspections at the
prescribed intervals unless notified by the Secretary of State
that an inspection is to be carried out by an independent inspectorate.
This change reflects the fact that the Secretary of State retains
the role of regulator of the independent sector. He will be responsible
for commissioning inspections from the independent inspectorates
(whom he approves) and hence will be in a position to inform the
Chief Inspector when an inspection is to be conducted by an independent
inspectorate.
16. Clause 99 is amended by Amendment 115. There
is no change to the form of the delegated power contained in this
clause. The clause will continue to enable the Secretary of State
to make regulations which require fees to be paid to the Chief
Inspector for inspections conducted by the Chief Inspector. The
power to make regulations continues to be subject to the negative
resolution procedure. The clause continues to carefully delineate
what may or may not be included in the regulations. Amendment
115 substitutes a reference to the Secretary of State for the
current reference to the Chief Inspector in subsection(3)(e).
The result is that the regulations may confer a discretion on
the Secretary of State rather than the Chief Inspector. This is
consistent with the transfer of the regulatory functions from
the Chief Inspector to the Secretary of State. The purpose of
the discretion is to allow the regulator / registration authority
to determine which independent educational institutions are performing
sufficiently well against the standards (see clause 81) so that
a lighter touch and reduced tariff inspection can be conducted
instead of a full inspection which will attract a full fee.
17. Clause 101 provides for the Secretary of
State to retain the power to prescribe the manner in which the
Chief Inspector's inspection reports are published. Amendment
119 means that the Chief Inspector must publish inspection
reports as directed by the Secretary of State. Reports are likely
to be published in respect of inspections carried out:
· following the regular three yearly inspections;
· for the purposes of determining the institution's
application for registration;
· for the purposes of determining applications
to approve changes to the institution's registered details;
· at the Secretary of State's discretion;
· as a follow-up to the regular cycle of
inspections, where standards were not being fully met.
18. The regulations will set out the timescale
for publication and the method by which the reports should be
published, which will include electronic access. As set out previously,
this power will be subject to the negative resolution procedure.
This is consistent with the current position under the Education
Act 2002 framework.
19. Clause 111 provides for regulations to require
information to be provided by proprietors. There is no change
to the nature of the delegated power - the Secretary of State
will continue to be able to make regulations (subject to the negative
resolution procedure) which require proprietors to provide information.
However, clause 111 is amended by Amendment 158 to limit the persons
to whom proprietors are required to provide the information. As
currently drafted, proprietors could have been required to provide
information to the Secretary of State or the Chief Inspector.
The amendment will remove the reference to the Chief Inspector.
As a consequence of the changes in the regulator / registration
authority, Amendments 159 to 161 also amend clause 111 to provide
for the Secretary of State (instead of the Chief Inspector) being
able to remove an institution from the register for non-compliance
with the regulations. Similarly, the Secretary of State is required
to notify a proprietor of such a decision and a right of appeal
will lie against the Secretary of State's decision.
20. Amendment 165 amends the identity of the
Tribunal to which appeals under Part 4 of this Bill will lie.
In accordance with the Tribunals, Courts and Enforcement Act 2007,
appeals will now lie to the First Tier Tribunal. Clause 117 provides
a power to make regulations concerning the Tribunal's jurisdiction
when hearing appeal against directions made under clause 116 (restriction
or prohibition of persons participating in the management of independent
educational institutions). The nature of the power remains unchanged.
However, these amendments will mean that any regulations relate
to the jurisdiction of the First Tier Tribunal established under
the Tribunals, Courts and Enforcement Act 2007 rather than the
Tribunal established under section 9 of the Protection of Children
Act 1999.
21. Amendments 184 to 186 insert new clauses
which create transitional provisions. The New Clause on the register
and fees extends the scope of the existing power contained in
clause 99(3)(d), which provides for regulations (made by the Secretary
of State subject to the negative resolution procedure) requiring
inspection fees to be paid to the Chief Inspector to include a
provision for waiving a fee. Amendment 185 clarifies that the
regulations may also waive any fee which is payable by virtue
of section 162B(6) of the Education Act 2002. Section 162B currently
provides the power for charging inspection fees for inspections
of independent schools in England. Amendment 133 will allow the
Secretary of State to create a new annual fees regime going forward
without penalizing proprietors by making them pay twice in any
one year (fees under the 2002 Act regime being payable in arrears).
22. The New Clause inserted by Amendment 186
allows for transitional provisions to be made in relation to the
prohibition or restriction on persons participating in the management
of independent educational institutions. The New Clause contains
powers for Regulations to provide that a person who meets certain
conditions (largely related to existing barring regime under section
142 of the Education Act 2002) to be treated as being subject
to a direction under clause 116 of this Bill. Likewise, regulations
may provide that any appeal under the 2002 Act regime is treated
as an appeal under the provisions of this Bill. The regulations
will be subject to the negative resolution procedure. The purpose
of the clauses is to allow for the administrative transition from
one protection regime to another and it is appropriate for the
details to be set out in secondary rather than primary legislation.
These powers and the procedure attached reflect the will of Parliament
who legislated to identical effect when passing section 171 of
the Education and Inspections Act 2006.
PART 5, CHAPTER 2 -
MISCELLANEOUS
23. Clause 140(3) inserts a new section
29A into the Education Act 2002, subsection (3) of which requires
the Secretary of State to make regulations requiring prescribed
persons to be given prescribed specific information relating to
the imposition of any requirement for a pupil to attend educational
provision out of school to improve his or her behaviour, and requiring
the governing body of the school to keep this requirement under
review. The prescribed persons will be the pupil's parents, or
the pupil if aged 18 or over.
24. It is the intention that notices will be
sent to them giving details of the provision such as: the name
of the provider; the full address; when they should attend; the
person to whom the pupil should report; and the hours. The notice
will also outline the review mechanism. Notice will be modelled
on notices sent to parents of excluded pupils (or pupils themselves)
setting out what educational provision will be made under section
100 of the Education and Inspections Act 2006.
25. Regulations under this section may also make
provision requiring the governing body to request prescribed persons
to participate in the review; about the time within which the
first review must be held and the intervals at which subsequent
reviews must be held, and in relation to any other matter relating
to the exercise of the power. It is anticipated that reviews will
occur every 30 days and would take the form of a meeting between
the head teacher, the governing body and the parents of the pupil,
or in the case of a pupil who has attained the age of 18, the
pupil to the exclusion of his or her parents. In a case where
the pupil had a statement of special educational needs, the local
education authority that maintains the statement would also attend.
26. The Department does not wish the invitation
to a review meeting to be the first time the parent hears of the
exercise of the power, which is why the Department intends
that the regulations made under new section 29A of the Education
Act 2002 will include a requirement that the parent (or pupil
if aged 18 or over) is informed of the practical arrangements
by written notice in advance. Such a notice will also be a
"notice in writing" for the purpose of section 444ZA(1B)(b)
of the 1996 Act (inserted by clause 139) which has to be given
to the parent of a child of compulsory school age before an offence
of failing to secure regular attendance can be committed.
27. These matters have been left to secondary
legislation as they relate to administrative details of the proposal.
A similar approach exists currently where schools make educational
provision for pupils who have been excluded for a fixed period
of more than five days: the Education (Provision of Full-time
Education for Excluded Pupils) (England) Regulations 2007 (SI
2007/1870) set out the information to be contained within the
notice when this provision is made. Following this model, it is
considered that the negative resolution procedure will provide
the appropriate level of scrutiny.
28. The regulations may prohibit a governing
body from requiring a pupil to attend off-site provision for a
greater number of days in a school year than is specified in the
regulations. It is anticipated that regulations will provide that
any period of off-site provision must not exceed the number of
days remaining in the school year in which the requirement
is imposed. The regulations may also oblige the governing body
to have regard to any guidance issued by the Secretary of State.
PART 5 - KEY STAGE
3 TESTS
29. Amendment 151 will change section 88 of the
Education Act 2002. Section 88 applies in relation to maintained
schools and requires head teachers, governing bodies and local
authorities to implement during any school year the National Curriculum
which subsists at the start of that school year. For these purposes,
"the National Curriculum" includes assessment arrangements
specified within the National Curriculum. The amendment will alter
the duty on schools to implement the assessment arrangements so
that they are required to implement assessment arrangements specified
for the time being. This will allow the Secretary of State to
specify assessment arrangements which take effect for a school
year after the start of that school year.
30. In specifying the assessment arrangements,
the Secretary of State will continue to exercise his existing
powers to make orders as set out section 87(3)(c) of the Education
Act 2002, subject to the existing provisions set out for the making
of Orders and regulations in Section 210 of the 2002 Act. Section
87 also contains authorisation for provisions to be made outside
of any order but which nevertheless have legal effect. These amendments
will make no changes to these existing delegated powers.
31. The Secretary of State proposes to exercise
his powers to make an Order under section 87(3)(c) of the 2002
Act which will abolish external National Curriculum tests at Key
Stage 3 once the amendment to section 88 comes into force on Royal
Assent.
Department for Children, Schools and Families
October 2008
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