Apprenticeships, Skills, Children and Learning Bill - Delegated Powers and Regulatory Reform Committee Contents

Eighth Report

Apprenticeships, Skills, Children and Learning Bill


1.  This is a multi-purpose Bill. The Department for Children, Schools and Families and the Department for Innovation, Universities and Skills have submitted a memorandum explaining the delegated legislative powers in the Bill, printed at Appendix 1. There are also powers to make regulations at clauses 1(1), 2(1), 5(1) and 6(1) ("prescribed manner") and 221(2).

Clause 37 - apprenticeship sectors

2.  Chapter 1 of Part 1 makes provision about apprenticeships. Clause 37(1) requires the Secretary of State to specify by order, subject to no Parliamentary procedure, sectors of skill, trade or occupation for the purposes of this Chapter. Under clause 38 "apprenticeship sector" in Chapter 1 means a sector specified under clause 37. The order therefore has significance for a number of the provisions in Chapter 1 (e.g. clauses 10(2), 11(1) and 15(3)). The memorandum says that "no Parliamentary scrutiny is considered necessary as the intention is that the sectors will follow on the Sector Skills Council footprints". But there is no reason why the first or any subsequent order may not depart from them and the lack of Parliamentary control seems inappropriate. The Committee recommends that the negative procedure should apply to orders made under clause 37(1).

Clause 39 - study and training

3.  Clause 39 inserts a new Part 6A into the Employment Rights Act 1996. The new Part is about allowing employees to spend time undertaking study or training which will improve their effectiveness at work and the performance of the employer's business.

4.  There are delegated powers at new sections 63D(2)(b), (6)(a) and (7)(f), 63E(4)(c) and (5), 63F(3), (4) and (7)(j), 63G(1)(a) and (e), 63H(3), 63I(3)(b) and 63J(3). All of the powers are subject to the negative procedure.

5.  Included among the powers are significant powers:

  • to specify what further conditions must be met for an application to be valid (section 63D(2)(b));
  • to specify the conditions as to duration of employment which must be satisfied for the employee to qualify to make an application (section 63D(6)(a)), and to specify categories of people who cannot qualify to make an application (section 63D(7)(f)); and
  • to specify additional grounds on which an application may be refused (section 63F(7)(j)).

6.  The 1996 Act already leaves to regulations the qualifying conditions for a number of benefits for employees, including maternity leave, adoption leave and parental leave, but in each case the affirmative procedure applies. Paragraph 59 of the Government memorandum points to a precedent for negative procedure for the duration of employment condition (change in terms and conditions in order to look after a child), but there are equally precedents the other way. Paragraph 70 points to a precedent for regulations specifying additional grounds for refusal. But the memorandum does not make clear that the regulations under that precedent are in fact subject to affirmative procedure. The Committee considers that the affirmative procedure should apply to the powers in new sections 63D(2)(b), 63D(6)(a), 63(D)(7)(f) and 63F(7)(j), and recommends accordingly.

Clause 75 - Academy arrangements

7.  Although it is not mentioned in the Government memorandum, clause 75 allows the Secretary of State to sub-delegate certain functions. Under the clause, the Secretary of State may require the Young People's Learning Agency for England (YPLA) to enter into Academy arrangements with the Secretary of State. These are arrangements under which the YPLA is required to exercise specified Academy functions on the Secretary of State's behalf in accordance with the arrangements.

8.  Clause 75(4) provides that Academy functions include in particular functions of the Secretary of State under Schedule 35A to the Education Act 1996. Paragraph 11 of Schedule 35A enables the Secretary of State to make regulations about various procedural matters connected with land in relation to Academies. Under section 569 of the 1996 Act, those regulations, if made by the Secretary of State, are made by a statutory instrument subject to negative procedure. The Committee draws to the attention of the House that clause 75 appears to enable the Secretary of State to arrange for the YPLA to exercise the function of making regulations on behalf of the Secretary of State, in which case they would appear to be subject to no Parliamentary procedure. The House may wish to seek an explanation from the Government for the possible proposed change in approach effected by clause 75(4).

Schedule 12, paragraph 40(5) - delegated supplementary provisions

9.  Under the Childcare Act 2006 the Secretary of State may make orders about assessment arrangements for the learning and development requirements of the Early Years Foundation Stage. Paragraph 40(5) of Schedule 12 to this Bill adds a power to allow the Secretary of State, in a learning and development order, to sub-delegate to another person the power to make supplementary provisions to give full effect to, or otherwise supplement, the order. Under the 2006 Act those orders by the Secretary of State are subject to negative procedure, so the effect of paragraph 40(5) of the Bill is to remove from Parliamentary control details of supplementary provisions which the order by the Secretary of State provides are to be delegated. Again, the House may wish to seek an explanation for the reduction in Parliamentary oversight brought about by paragraph 40(5) of Schedule 12.

Clauses 224 and 226 - School Support Staff Negotiating Body

10.  The Secretary of State is given the power in clauses 224(2) and 226(2) to make orders ratifying agreements presented by the School Support Staff Negotiating Body (SSSNB). (These agreements will relate to pay and conditions for school support staff.) The Bill currently provides for the negative procedure to apply to these orders, though they are of a distinctly administrative character. It was not clear to the Committee from paragraphs 183 and 184 of the Government memorandum why the negative procedure need apply. We suggest that orders under clauses 224(2) and 226(2) could be subject to a requirement for laying before Parliament, but with no further Parliamentary procedure.

Clause 242 - short stay schools: miscellaneous

11.  Clause 242(1) provides for pupil referral units to be renamed "short stay schools". Subsection (2) provides for the Secretary of State to make by order any necessary amendments to Acts of Parliament which are consequential on this change of name. As this is a Henry VIII power the Government have quite properly applied the affirmative procedure (by clause 254(6)(e)). However, because in this particular case the provision which would be made by exercising the power is purely consequential on the change of name, the Committee is content that the negative procedure could apply to orders made under clause 242(2).

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