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


APPENDIX 1: APPRENTICESHIPS, SKILLS, CHILDREN AND LEARNING BILL


Memorandum by the Department for Children, Schools and Families and the Department for Innovation, Universities and Skills

Introduction

1.  This Memorandum sets out the provisions in the Apprenticeships, Skills, Children and Learning Bill that bestow power on the relevant Secretary of State to make delegated legislation. Annex A contains a summary of the clauses where it is proposed that powers to make secondary legislation are taken. The section 'Provisions for delegated legislation' sets out: the detailed explanations of the purpose of the proposed delegated power; why the matter is to be dealt with in delegated legislation; and the nature and justification for any Parliamentary procedures which would apply.

Background

2.  The Apprenticeships, Skills, Children and Learning Bill is the joint responsibility of the Department for Children, Schools and Families (DCSF) and the Department for Innovation, Universities and Skills (DIUS). It contains a range of measures designed to equip the country to meet the economic and social challenges of the country, by supporting learners of all ages to fulfil their potential and get a good job. In particular, the Bill will expand and strengthen apprenticeships, so that more young people and adults can be put on the path to rewarding, skilled careers.

3.  Another key element of the Bill is the continued reform of 14-19 education and training. The Bill builds on the Education and Skills Act 2008, which took the historic step of raising the age of participation in education or training to 18 for all young people in England from 2015.

4.  The Apprenticeships, Skills, Children and Learning Bill will put in place the infrastructure required to deliver universal participation. In line with proposals originally included in the March 2008 White Paper 'Raising Expectations: Enabling the system to deliver'[1], the Bill will transfer responsibility for funding 16-18 education and training to local authorities, creating a single point of accountability for all children and young people's services from 0 to 19. Local authorities will also take on responsibility for the education of young people in custodial establishments, and for the education and training of certain learners with learning difficulties or disabilities up to the age of 25.

5.  Two new bodies will be created: the Young People's Learning Agency (YPLA), which will support local authorities in their new role; and, the Chief Executive of Skills Funding, who will be responsible for establishing and leading a new, demand-led system of skills provision for adults.

6.  The Bill incorporates proposals previously published in July 2008 as the Draft Apprenticeships Bill[2]. The draft Bill contained proposals to establish a statutory basis for the apprenticeship programme and to secure sufficient apprenticeship places to deliver an apprenticeship place for every suitably qualified young person who wants one. The Bill was also the subject of pre-legislative scrutiny by the Innovation, Universities, Science and Skills Select Committee[3] and the Children, Schools and Families Select Committee [4], and their reports are available on the Parliament website.

7.  The Bill also includes a range of proposals to:

  • increase public confidence in examinations and assessments by establishing the Office of Qualifications and Examinations Regulation (Ofqual) as a new independent regulator, while the Qualifications and Curriculum Authority (QCA) will be renamed the Qualifications and Curriculum Development Agency, and will inherit the QCA's non-regulatory role;
  • introduce a right for employees to request that their employer allow them to spend time undertaking study or training;
  • strengthen the local co-ordination of children's services;
  • continue the drive to ensure that every school is a good school by giving new freedoms to the best, strengthening powers to intervene where schools need more support and continuing to foster a world class school workforce;
  • strengthen collaboration between schools and give them new powers to improve standards of behaviour.

8.  These proposals were drawn from a range of DCSF and DIUS consultation documents. The consultation documents and responses are available on the two departments' websites, and some of the principal source documents are listed below.[5]

General approach to delegated powers

9.  In developing the proposals in the Bill, the two departments have had careful regard to the previous reports of the Delegated Powers and Regulatory Reform Committee, including the Committee's Tenth Report of the 2007-08 Session which covered the linked Education and Skills Bill, now the Education and Skills Act 2008.

10.  By and large our approach has been to set out in primary legislation the essential features of each proposal. For example, in the case of the reforms of 14 -19 education and training, the key elements of the new infrastructure that the Bill establishes are included on the face of the Bill, along with the core duties and functions of local authorities and the YPLA. Similarly, for post-19 education and training, the Bill puts the core duties of the Chief Executive of Skills Funding on the face of the Bill.

11.  Powers to prescribe matters in secondary legislation have been proposed to provide for flexibility to provide for such adjustments from time to time as may be necessary. In particular, in deciding whether subordinate legislation is the appropriate vehicle for any particular provision, the two departments have been guided by the following general criteria:

  • the desirability of not putting detailed technical provisions or procedural requirements on the face of the Bill;
  • the need to update procedural and administrative requirements from time to time to reflect developing practice or changing circumstances, and to enable the departments to respond to stakeholders' advice and concerns;
  • in certain places the departments have taken reserve powers. This means there is no present intention to exercise them, but they have been provided as contingency measures to deal with circumstances that may, but need not, arise;
  • the need to ensure an appropriate level of Parliamentary scrutiny but without having to take up a substantial amount of Parliamentary time to amend primary legislation.

12.  In developing the Apprenticeships, Skills, Children and Learning Bill, the two departments have also been mindful of the inquiry undertaken by the House of Lords Select Committee on the Merits of Statutory Instruments (SIs) into the cumulative impact of SIs on schools and other public sector organisations. The Rt Hon Jim Knight MP, Joint Bill Minister for this Bill, gave evidence to the Merits Committee on 20 January 2009.

13.   The departments are aware of the Committee's concerns about the potential impact of any fresh secondary legislation they propose through the Bill on schools, local authorities and other public bodies, and have sought to keep the number of secondary powers to a minimum.

14.  The two departments have placed a great deal of importance on the need to reduce the burdens on schools and other public bodies. Indeed, the Bill includes proposals which will lead to a reduction in the current inspection cycle for successful schools from three to five or six years. We are committed to ensuring that schools and other public bodies have plenty of notice to prepare for any changes that are implemented through secondary legislation, and clear communication about what will be expected of them. As part of our implementation plans for the Bill, we will also consider the value of adopting common commencement dates for secondary legislation where appropriate.

15.  Jim Knight will shortly be writing to the Merits Committee setting out a range of measures which DCSF proposes to adopt more generally in terms of its approach to secondary legislation.

Overview of the Bill

Part 1 - Apprenticeships, Study and Training

16.  Chapter 1 defines what an apprenticeship is and the mechanics for how apprenticeships are to be administered, including what duties employers will have and which young people are eligible. It also imposes a duty on schools to consider properly the appropriateness of apprenticeships when advising pupils on careers.

17.  Chapter 2 puts in place legislation to support "Time to Train" which will give employees a right to ask for time to undertake training and study and to have this considered properly by their employer.

Part 2 - Local Education Authority (LEA) Functions

18.  Part 2 sets out the new duties LEAs will have to provide education and training for those who are over compulsory school age but under 19, and for those aged 19 or over but under 25 who have learning difficulties and/or disabilities. It also places obligations on the local authority in respect of the transport to be provided to those groups.

19.  In respect of individuals in young offender institutions, it places an obligation on the LEA where the individual normally lives to promote the individual's education and an obligation on the LEA where the individual is in custody to ensure that suitable education is provided.

Part 3 - The Young People's Learning Agency for England

20.  This part establishes the Young People's Learning Agency (YPLA) and sets out its powers, functions and duties. The YPLA will support and enable local authorities to carry out their new duties in respect of 16-18 education and training.

Part 4 - The Chief Executive of Skills Funding

21.  Part 4 creates the post of Chief Executive of Skills Funding which, along with the staff made available to him, will embody the Skills Funding Agency. The Chief Executive will take on responsibility for funding post-19 education and training, for funding post-18 education and training for those in adult prisoners, and for ensuring that there are sufficient numbers of apprenticeship places available for all suitably qualified people aged 16-18 and care leavers.

Part 5 - Parts 2 to 4 Supplementary

22.  This provides for the dissolution of the Learning and Skills Council (LSC), makes consequential amendments in relation to the dissolution, and puts in place arrangements to ensure that the various bodies involved in providing education and training can appropriately share information that is needed to carry out their functions.

Part 6 - The Sixth Form College Sector

23.  Sixth Form Colleges are currently a type of Further Education (FE) Corporation. The Bill will establish a new legal category of sixth form college corporation. Those within it will be independent organisations, funding for which will come through the LEA.

Part 7: Office of Qualifications and Examinations Regulation (Ofqual)

24.  Part 7 establishes Ofqual, which has existed in interim form (as a part of the Qualifications and Curriculum Authority) since April 2008, and sets out its powers, functions and duties. Specifically it sets out the mechanics for how Ofqual will regulate awarding bodies and the qualifications they produce, and for the regulation of National Curriculum and Early Years Foundation Stage assessments.

Part 8: Qualifications and Curriculum Development Agency

25.  Proposals in part 8 will amend the existing legislation which established the Qualifications and Curriculum Authority (QCA) so as to rename it as the Qualifications and Curriculum Development Agency, a body that will inherit the QCA's non-regulatory role.

Part 9: Children's Services

26.  Part 9 will establish Children's Trust Boards and give them responsibility for the Children and Young People's Plan which previously lay with local authorities.

27.  It will provide for the Secretary of State to set targets for children's services authorities in England for safeguarding and promoting the welfare of children, in accordance with regulations, and requires children's services authority to act in a manner that secures the meeting of the targets.

28.  It will also provide for the appointment of lay members to Local Safeguarding Children Boards in England and for the preparation and publication of annual reports by Local Safeguarding Children Boards in England.

29.   It will also define children's centres in legislation and require local authorities to arrange for there to be sufficient numbers of children's centres in their area to meet local need.

Part 10: Schools

30.  Chapter 1 will amend the current intervention powers which LEAs and the Secretary of State have in respect of schools which are causing concern. It will also give the Secretary of State specific powers to intervene to ensure schools comply with the School Teachers' Pay and Conditions (STPCD) document.

31.  Chapter 2 will also streamline the process by which parents can make complaints about schools, transferring responsibility to hear complaints from the Secretary of State to the Local Government Ombudsman.

32.  Chapter 3 will enable the Chief Inspector of Education and Children's Services to publish an interim statement on schools between inspections.

33.  Chapter 4 will establish the School Support Staff Negotiating Body (SSSNB) as a statutory body and give the Secretary of State powers to ratify agreements reached by the SSSNB on school support staff pay and conditions and to make orders that will determine how those ratified agreements will be given effect in schools.

Part 11: Learners

34.  Provisions in this part will extend the power that teachers and staff in schools and FE institutions currently have to search pupils, or students in the case of FE institutions, for weapons, so that it also covers illegal drugs, alcohol and stolen items.

35.  It will also require schools to report to parents incidents where teachers have used force to restrain pupils to prevent them harming themselves or others.

36.  It will also make participation in Behaviour and Attendance Improvement Partnerships compulsory for all secondary schools.

37.  It will also change the name of Pupil Referral Units to Short Stay Schools, and take powers to make regulations about their closure and other matters.

Part 12: Miscellaneous

38.  Part 12 will make technical amendments to change the way in which local authorities provide information about LEA expenditure on schools and children's services, allows for data necessary to support the Raising Participation Age to flow to LEAs and makes changes which would mean that people would not reduce their liability to repay student loans if they enter into Individual Voluntary Arrangements. It will also give FE colleges in Wales the ability to award Foundation Degrees.

Part 13: General

39.  Part 13 will include power to make consequential and transitional provisions including amending primary legislation where necessary.

PROVISIONS FOR DELEGATED LEGISLATION

PART 1 - Apprenticeships, Study and Training

Chapter 1 - Apprenticeships

Clause 1: Duty to issue apprenticeship certificates: England

40.  This clause allows for apprenticeship certificates to be issued to people who satisfy alternative conditions for completing their apprenticeship. In subsection (5), there is a power to make regulations for alternative completion conditions to apply in cases where a person works otherwise than under an apprenticeship agreement. It is intended that this will allow the apprenticeship certificate system to accommodate sectors with unusual employment patterns, such as the creative media sector where self-employment is common, and to provide flexibility where apprentices are made redundant to allow them to complete their apprenticeship as a volunteer doing unpaid work with a charity or third sector body if no new employer can be found. Parliamentary control will be by negative resolution, as this will give a sufficient level of oversight while giving flexibility to adapt to changing circumstances.

Clause 3: Issue of certificates by the English certifying authority: supplementary

41.  Clause 1 deals with the arrangements for the issue of apprenticeship certificates. Subsection (1) of clause 3 gives the Secretary of State a power to make regulations to allow for a fee to be charged for issuing apprenticeship certificates. There is currently no intention to charge a fee for the original certificate. However, there should be flexibility to allow for fees to be charged should this need to change in the future, and for the level of any fee to be set. Parliamentary control will be via negative resolution as this is an operational matter, and flexibility would be required for example to adjust the level of any fee from time to time.

42.  Subsection (2) makes provision about the supply of copies of apprenticeship certificates issued under clause 1 or 2. It allows for a charge to be made for issuing duplicate certificates. The intention is that, if the Secretary of State does allow the certifying authority to charge fees for duplicate certificates that the fee would cover only the cost of supplying the duplicate certificate. This is an operational matter, and some flexibility would be required for example to adjust the level of any maximum fee from time to time, and therefore suitable for negative resolution procedure.

Clause 5 Duty to issue apprenticeship certificates: Wales

43.  Clause 5 deals with the arrangements for the issue of apprenticeships certificates in Wales. Subsection (5) includes a mirror power for Welsh Ministers to that included in Clause 1(5) for England.

Clause 7: Issue of certificates by the Welsh certifying authority: supplementary

44.  Clause 7(1) gives Welsh Ministers power to make regulations to allow for a fee to be charged for issuing apprenticeship certificates. As this is an operational matter, and flexibility would be required for example to adjust the level of any fee from time to time, control would be via the National Assembly of Wales' negative resolution procedure.

45.  Subsection (2) makes provision about the supply of copies of apprenticeship certificates issued under clause 5 or 6. It allows for a charge to be made for issuing copy certificates. The intention is that, if Welsh Ministers do allow the certifying authority to charge fees for copy certificates, the fee would cover only the cost of supplying the copy certificate. This is an operational matter, and some flexibility would be required for example to adjust the level of any maximum fee from time to time, and therefore suitable for negative resolution procedure.

Clause 8:The Welsh certifying authority

46.  Subsection (3) of Clause 8 gives the Welsh Ministers power to designate by order a person who may issue apprenticeship certificates. It was added to ensure that the Welsh Ministers have sufficient control on the implementation of the powers, and allows for a broader range of matters to be dealt with in the designation, such as transitional arrangements between in-coming and out-going certifying authorities.

Clause 9: Contents of apprenticeship certificate

47.  Clause 9 deals with the content of apprenticeship certificates in England and Wales, and subsection (1) sets out lists the required contents. Subsection (2) provides that the Secretary of State may make regulations setting out the additional information that apprenticeship certificates should contain. This will provide the flexibility to specify additional information, in response to operational requirements, and, as this is essentially an administrative matter, it is appropriate for the regulations to be subject to negative resolution.

Clause 15: Transitional provision for apprenticeship frameworks: England

48.  Clauses 10-14 set out the conditions and requirements under which English apprenticeship frameworks can be issued and withdrawn by the English issuing authority. Clause 12 requires that, to be recognised, frameworks must comply with the English specification of standards set out in Clause 25. Clause 15 enables the Secretary of State to make provision by order for transitional arrangements in respect of existing vocational specifications to enable them to become 'deemed frameworks' and treated as apprenticeship frameworks issued under Clause 12(1). This will enable people to enter into a deemed framework up until July 2013. This is a transitional and operational matter for which flexibility is needed to ensure that a range of frameworks continue to be available until all recognised English frameworks are in place, and no Parliamentary scrutiny is considered necessary.

Clause 20: Transitional provision for apprenticeship frameworks: Wales

49.  Clauses 17 to 19 set out the conditions and requirements under which Welsh apprenticeship frameworks can be issued and withdrawn by a Welsh issuing authority. Clause 17 requires that to be recognised frameworks must comply with the Welsh specification of standards, the contents of which are described in clause 29.

50.  Clause 20 enables Welsh Ministers to make provision by order for transitional arrangements in respect of existing vocational specifications to enable them to become 'deemed frameworks' for the purposes of them being treated as apprenticeship frameworks issued under Clause 17(1). This mirrors the power for England in Clause 15.

Clause 22: Order bringing specification of apprenticeship standards for England into effect

51.  Clauses 21 to 25 deal with the specification of apprenticeship standards. The specification will be prepared by the Chief Executive for Skills Funding, following consultation with appropriate persons, and submitted to the Secretary of State. Clause 22 allows the Secretary of State to make an order to provide that the specification of apprenticeship standards is to have effect. The specification will set out the detailed requirements with which recognised apprenticeship frameworks must comply before they can be issued as part of the apprenticeship programme. These will change from time to time to reflect the changing needs of employers and good practice, and as such it was felt appropriate that the order should be subject to negative resolution. This will also enable the consultation procedure to take place.

Clause 23: Modification of specification of apprenticeship standards for England

52.  Clause 23 deals with modifications to the specification of apprenticeships standards. As with the preceding clause, the Secretary of State will have an order making power to bring any modifications into force. For the same reasons as in Clause 22, it was felt that this parallel power should be subject to negative resolution.

Clause 26: Specification of apprenticeship standards for Wales

53.  Clauses 26 to 29 deal with the specification of apprenticeship standards in Wales. The specification will be prepared by Welsh Ministers, following consultation with appropriate persons. Clause 26 allows Welsh Ministers to make an order to provide that the specification of apprenticeship standards is to have effect. This mirrors the power in England in Clause 22.

Clause 27: Modification of specification of apprenticeship standards for Wales

54.  Clause 27 deals with modifications to the specification of apprenticeships standards. As with the preceding clause, Welsh Ministers will have an order making power to bring any modifications into force. This mirrors the power in England in Clause 23.

Clause 30: Meaning of 'apprenticeship agreement'

55.  Clauses 30 to 34 deal with apprenticeship agreements, which will be drawn up between the apprentice and their employer. The Secretary of State will have a new power to prescribe the form of the model apprenticeship agreement by way of order. This is one the measures in the Bill intended to safeguard the quality of apprenticeships, and there will be consultation on a draft model contract of service before the model agreement is issued. The agreement will be an operational and policy matter, and its format will not materially affect the apprenticeship programme. It is therefore proposed that this power should be subject to negative resolution.

Clause 34: Crown Servants and Parliamentary Staff

56.  Clause 34(5) gives the Secretary of State a power to make regulations to enable the apprenticeships provisions in Chapter 1 of Part 1 or clauses 89 to 97 to apply with modifications to Crown servants, Parliamentary Staff and the Armed Forces. The intention is to allow those who fall into these categories to be able to participate in the apprenticeship programme. These regulations will allow the provisions relating to apprenticeships agreements to apply with modifications to these groups, and would prevent a model apprenticeship agreement for this group being treated as a contract of service. A delegated power will provide flexibility to allow for future changes in the status of the categories of staff specified to modify the application of the clause as necessary. It is proposed that the negative resolution procedure will provide the appropriate level of Parliamentary oversight.

Clause 37: Apprenticeship sectors

This power requires the Secretary of State to specify the apprenticeship sectors for the operation of the apprenticeship provisions, that is, the sectors for which a recognised apprentice framework must be drawn up. The intention is that the sectors will follow those covered by the Sector Skills Councils. It is important to maintain the flexibility to change the specification of sectors as the apprenticeship programme develops, and to allow for consultation with appropriate bodies on which sectors are appropriate for the operation of the programme. This is an operational matter for which flexibility is needed and no Parliamentary scrutiny is considered necessary as the intention is that the sectors will follow on the Sector Skills Council footprints, which are not considered contentious.

Chapter 2 - STUDY AND TRAINING

Clause 39: Employer support for employee study and training

57.  Clause 39 amends the Employment Rights Act 1996 ("the ERA") to introduce a new right for employees to make a statutory application to their employer in relation to study or training - essentially a request to their employer to allow them to spend time undertaking study or training which will improve their effectiveness at work and the performance of their employer's business.

58.  New section 63D establishes the right of qualifying employees to make such an application, and defines the nature and purpose of an application. Subsection (2)(b) includes a power for the Secretary of State to prescribe in regulations any further requirements for a request to be considered a valid statutory application under these provisions. This is intended to give greater flexibility to add to these requirements in future should this be considered necessary in the light of practice and experience. It is likely that any such change would build on the general principles set out on the face of the Bill and as such the negative procedure is considered appropriate.

59.  Subsection (6)(a) gives the Secretary of State the power to make regulations which will specify the duration of employment an employee must have in order to be eligible to make a request for "Time to Train". The intention is to specify that the employee must have been continuously employed for a period of not less than 26 weeks (the same period as for flexible working requests). It may be that this condition will need to be varied in the future in the light of practice and experience, and so some flexibility is required. We propose that regulations will be subject to the negative resolution procedure and rely on the fact that the similar regulation-making power in the flexible working provisions (section 80F(8)(a)(i) ERA 1996) is also subject to the negative resolution procedure.

60.  Subsection (7) sets out persons who do not qualify for the right to make an application under section 63D. They include people of compulsory school age and those aged 16 and 17 who will be required by the Education and Skills Act 2008 to continue to participate in education or training until the age of 18. Subsection (7)(f) gives the Secretary of State the power to make regulations to enable the exclusion of other people from being "qualifying employees". It is considered sensible to reserve power to ensure flexibility in the light of experience and practice. For example, if there are groups of people whose learning and training needs are being catered for elsewhere such that it is appropriate to ensure their employers are not subject to the duties imposed by these provisions. The regulations would be subject to the negative resolution procedure, which is appropriate as they would, if used, be introducing limited exceptions to the general rule.

61.  New section 63E provides some further details on what type of study or training an application may cover, and sets out certain details which it must include. Subsection (4)(c) gives the Secretary of State the power to make regulations to require additional information to be included in the application. This power will enable flexibility to add to the requirements as to the content of an application should this become necessary following a period of operation, and would build on the core information already required on the face of the Bill. As such it is considered that the negative resolution procedure would deliver the appropriate level of Parliamentary scrutiny.

62.  Subsections (5)(a) and (b) give the Secretary of State the power to make regulations stipulating the form of an application and when it is to be taken to be received.

63.  It is possible that, to assist employees and employers in the operation of the new procedures, the Secretary of State will create a template for requests. The power under subsection (5)(a) could be used to require that employees use this form when making applications. The power could also be used to require an application be made in writing.

64.  It is envisaged that regulations under subsection (5)(b) will specify that an application is received on the day on which electronic transmissions (i.e. fax or email) are transmitted, or if posted, the day on which the application would be delivered in the ordinary course of post. Hand delivery may also be provided for by specifying in the regulations that the application would be received on the day on which the application is delivered.

65.  As these are detailed procedural matters, and it is possible that they may need to be adjusted in the light of practice and experience, it is considered appropriate that this should be achieved through secondary legislation and that the negative resolution procedure would provide the appropriate level of Parliamentary scrutiny. To include such details on the face of the Bill would make the provisions unnecessarily lengthy and inflexible.

66.  New section 63F sets out employers' duties when they receive an application and the grounds on which an application may be refused.

67.  Section 63F(1) makes it clear that employers should not have to consider more than one application in any 12 month period. However, it is recognised that there may be situations where an employee makes a procedural error in submitting an application. A regulation-making power has been included in subsection (3) which would enable the Secretary of State to set out in regulations where, at the request of the employee, a previous application within the last 12 months should be disregarded.

68.  This would enable provision to be made, for example, to provide that an employer must disregard an application under section 63D if the employee mistakenly makes it too early and then withdraws it. The employer would then need to consider the resubmitted application. Whilst the principle of one application in 12 months is clear, flexibility is needed to deal with certain scenarios which might otherwise result in unfair consequences. It would not be appropriate to set out provisions to address such exceptional scenarios on the face of the Bill. They are points of procedural detail which make it appropriate for this power to be delegated and subject to the negative resolution procedure.

69.  Subsection (4) requires employers to deal with an application in accordance with regulations made by the Secretary of State. This provision provides the power for the Secretary of State to make regulations specifying the procedure for dealing with an application. These will be similar to the Flexible Working (Procedural Requirements) Regulations 2002 (S.I. 2002/3207). Example provisions that are likely to be included are to require the employer to hold a meeting with the employee within 28 days of receipt of the application unless the employer agrees to the application and notifies the employee in writing. As with section 63E(5)(a) - (b), this process may need to be adjusted following a period of operation, and for the same reasons it is considered appropriate that the power be delegated and subject to negative resolution.

70.  Subsection (7) set out the grounds on which an employer may refuse a request. These include a range of matters including a range of detrimental impacts on the employer's business or the suitability of the proposed training. Subsection (7)(j) gives the Secretary of State the ability to specify in regulations further grounds on which a request may be refused. For example, such a power might be used to specify a further ground of refusal such as "health and safety reasons". This will provide flexibility to allow for the effective operation of the scheme, should it be considered necessary to add further reasons for refusal. This is consistent with a similar regulation-making power in the flexible working provisions (section 80G(1)(b)(ix) ERA 1996). Regulations would be subject to the negative resolution procedure. We think this is appropriate as the regulations in this instance would be used to define limited additions to the list already set out in primary legislation.

71.  New Section 63G(1) sets out a number of points in respect of which regulations under section 63F(4) may be made. In general, these are cases where there might otherwise be some doubt as to whether they are within the scope of the power, or it is considered desirable to include them for the sake of clarity. This section makes clear regulations may include provision about the right of employees to be accompanied to meetings, the rights of companions to meetings, postponement of meetings where a companion is not available, connected rights not to suffer detriment and unfair dismissal and for applications to be treated as withdrawn in certain circumstances. As noted above, we think regulations made under s.63F(4) should be subject to the negative resolution procedure because they would be specifying technical and procedural details .

72.  Section 63(H) requires an employee who has had a request for "Time to Train" granted to inform their employer if they fail to start or finish the agreed study or training, or if they undertake, or propose to undertake, alternative study or training. Subsection (3) gives the Secretary of State the power to make regulations about how the employee should fulfil this commitment to inform their employer. The power could be used to require the employee inform their employer in writing and within a certain time period, of any changes to their study or training. Again, as this is essentially a procedural matter, and one which may need to be adjusted in the light of experience and practice, it was felt that this power should be delegated and that the negative procedure would provide an appropriate level of Parliamentary scrutiny.

73.  New sections 63I and 63J make provision for an employee who believes that their learning support application has not been dealt with properly by their employer, or has been refused incorrectly, to complain to an employment tribunal. Subsection (3)(b) of section 63I enables the Secretary of State to specify which breaches of procedural regulations made under section 63F(4) entitle the employee to make a complaint to an employment tribunal under section 63I notwithstanding the fact that the employee's application has not been disposed of by agreement or withdrawn. This power could be used, for example, to provide that failure to hold a meeting to discuss the application and failure to notify the employee of a decision on the application are breaches which entitle the employee to complain to the tribunal. This is a technical matter which is dependant on the procedure which is specified in regulations under section 63F(4) so it is desirable to set this out in regulations rather than on the face of the Bill. As with the procedural regulations, we consider it would be appropriate for this to be subject to the negative resolution procedure.

74.  Section 63J sets out the remedies available to an employment tribunal if they find that a complaint is well-founded, and this includes financial compensation up to a set maximum. Subsection (3) requires the Secretary of State to specify in regulations the maximum amount of compensation that an employment tribunal may award, in terms of the maximum number of weeks' pay of the employee.

75.  This mirrors a regulation-making power in the flexible working provisions of the ERA. The maximum amount under section 80I ERA (flexible working) - where the tribunal finds a complaint under section 80H well-founded - is 8 weeks' pay (regulation 7 of the Flexible working (Eligibility, Complaints and Remedies) Regulations 2002 (S.I. 2002/3236)). It is desirable to retain flexibility to be able to vary the amount of compensation payable in these circumstances, for example so that the limit on the maximum award can be set at an appropriate level bearing in mind awards which tribunals may currently award in other comparable circumstances. The regulations would be subject to the negative resolution procedure.

Schedule 1: Employee study and training: minor and consequential amendments

76.  Schedule 1 makes minor and consequential amendments to the ERA, Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and the Employment Tribunals Act 1996. Paragraph 12 of Schedule 1 will amend section 212A(1) of TULRCA so that the Advisory, Conciliation and Arbitration Service (ACAS) may prepare a scheme providing for arbitration in the case of disputes involving proceedings, or claims which could be the subject of proceedings, before an employment tribunal relating to the employer's duties to consider "Time to Train" applications. When ACAS has prepared such a scheme, it must submit it to the Secretary of State who, if he approves it, can make an order setting out the scheme and making provision for it to come into effect (s.212A(2)). We consider it is appropriate to make this consequential amendment so that, should ACAS prepare a scheme, this can be established by order in the same way that an arbitration scheme was set up for flexible working by the ACAS ((Flexible Working) Arbitration Scheme (Great Britain) Order 2004 (S.I. 2004/2333). Section 212A(12) provides for orders made under s.212A(2) to be subject to the negative resolution procedure and we see no reason to depart from this.

PART 2 - LOCAL EDUCATION AUTHORITY FUNCTIONS

Clause 44: Duties in relation to the core and additional entitlements

77.  Part 2 places a range of new duties on local authorities in England. Clause 44 deals with new duties in respect of the core and additional entitlement of young people to study for a Diploma.

78.  Clause 44 inserts new sections 17A to 17D into the Education Act 1996. They place duties on local authorities in England to exercise their functions in such a way as to secure that the core and additional entitlements are satisfied, and with a view to securing that courses in all the additional entitlement areas are made available to persons over compulsory school age but under 19. An order under section 17A(8) will allow the Secretary of State to specify the qualification or description of qualification to satisfy the core and additional (Diploma) entitlements. The government has already announced the initial 17 Diploma subjects which will be introduced by 2011. However, the detailed descriptions of the qualifications that make up the entitlement are still being developed and piloted, and may change over time and as such a degree of flexibility is required. For this reason secondary legislation, which will restate a power currently included in section 3C(2) of the Learning and Skills Act 2000, is proposed. Section 17D(2) includes a power to enable the Secretary of State by order to specify the additional entitlement areas. As with the previous powers in the 2000 Act, both orders will be made by negative resolution procedure.

Clause 49: Persons detained in youth accommodation: further provision

79.  Clauses 47 to 51 deal with the education of children and young people subject to detention in relevant youth accommodation. Clause 48 amends section 562 of the Education Act 1996 so that it no longer applies to children and young people who are detained in relevant youth accommodation. As a result, functions of LEAs, the Secretary of State, the Welsh Ministers and parents under the Education Act 1996 (and those Education Acts read as one with that Act) will apply towards young people who are detained in juvenile custody. Clause 49 inserts a new chapter 5A into Part 10 of the Education Act 1996 and new section 562A provides a power for the Secretary of State for England and the Welsh Ministers for Wales to prescribe for certain modifications to be made to the provisions of that Act (and those Education Acts read as one with that Act) in their application to children and young people who are subject to detention. This is a new provision and will give flexibility to ensure that the provisions of the Education Acts which will now apply to children and young people who are detained can be modified as necessary to reflect the constraints of the custodial regime. As this is essentially an operational matter, and what is possible may vary from institution to institution and for different young people, it is proposed that the negative procedure will provide the appropriate level of Parliamentary scrutiny.

80.  Clause 49 also inserts a new section 562B into the Education Act 1996 which places a duty on a detained person's "home authority" to takes steps to promote the person's fulfilment of his or her learning potential whilst they are detained and on their release. New section 562I(1) defines "home authority" (other than for children who are, or were immediately prior to their detention, looked after by an authority under the Children Act 1989) as the authority in whose area the child or young person is ordinarily resident. Section 562I(3) allow regulations to define "ordinary residence" for the purposes of determining which authority is a person's home authority under Chapter 5A. This is a new provision and is necessary to deal with a range of cases where for example a young person has two homes. Regulations will be made by the Secretary of State for England and the Welsh Ministers for Wales. It is proposed that the negative resolution procedure will provide the appropriate level of parliamentary scrutiny.

Schedule 2 LEA Functions: Minor and consequential amendments

81.  Paragraph 11 of Schedule 2 will amend section 207(2) of the Education Act 1996 so that regulations can be made under that section to allow for recoupment relating to the costs of making the educational provision under new section 562C of the Education Act 1996 (detention of persons with special educational needs: appropriate special educational provision) (inserted by clause 49). We consider it is necessary to make this consequential amendment so that regulations can be made to enable a host authority (one with a juvenile custodial establishment in their area) to recoup the cost of making appropriate special educational provision for a person who is detained in that establishment from the authority in whose area the person belongs. Regulations under section 207 are subject to the negative resolution procedure and we see no reason to depart from this as it is considered that this will provide the appropriate level of Parliamentary scrutiny.

Clause 55: Local education authorities in England: provision of transport etc for adult learners

82.  Clauses 52 to 55 deal with a number of matters in relation to transport arrangements and transport policy statements for adult learners and sixth form students. New section 508G requires local authorities in England to prepare by 31st May before the start of the relevant academic year a transport policy statement for young adults aged 19 and over but under the age of 25 who have (or should have) had a learning difficulty assessment carried out by the local authority. Section 508G(9) includes a power for the Secretary of State to change by order the time by which the policy statement must be published.

83.  This is a new provision, but closely modelled on section 509AA of the Education Act 1996, which includes the existing duty for LEAs to produce transport policy statements in respect of 6th form learners. The power for the Secretary of State to change the date by which transport policy statements in respect of 6th formers have to be published is in section 509AA(10), and is subject to negative resolution. While the power in subsection 508G(7) is a Henry VIII power, as it concerns what is a straightforward administrative and operational matter, and there is a precedent in the 1996 Act, it is proposed that the negative procedure will provide the appropriate level of Parliamentary scrutiny.

PART 3 - THE YOUNG PEOPLE'S LEARNING AGENCY

Clause 63: Prohibition on charging

84.  This clause requires the Young People's Learning Agency (YPLA) to exercise its funding functions so as to ensure that no charge may be made for the provision of education or training to persons over compulsory school age but under 19. Regulations under subsection (5) may specify charges or a description of charges which are or are not to be treated as made in relation to the provision of education or training. While the intention is that tuition costs associated with delivering universal participation among young people under 19 will be free, some flexibility is required so that other sorts of costs relating to the education - such as examination fees, charges for materials and equipment, fines and administrative costs - may be included or excluded from the prohibition on charging. As these are detailed matters which will underpin the principle on the face of the Bill, it is considered appropriate for this power to be delegated, and the negative procedure would deliver the appropriate degree of Parliamentary scrutiny.

Clause 66: Provision of services

85.  Clause 66 enables the YPLA to make arrangements with a number of permitted organisations to undertake services in connection with those organisations' education or training functions. Subsection (4)(a) to (f) specifies a number of permitted recipients.

86.  It may be appropriate for the YPLA to provide services to a specific organisation not covered in subsection (4)(a)-(f). Under subsection (4)(g), an order made by the appropriate national authority will allow the YPLA to provide services to a recipient named in the order - for example, a third sector organisation. In England, this order making power is conferred on the Secretary of State and, as this is an operational matter, it is proposed that the negative procedure would provide the appropriate level of Parliamentary scrutiny.

87.  A similar power is included in respect of the Chief Executive of Skills Funding (see Clause 104 below).

Clause 72: Power of Secretary of State to confer supplementary functions on YPLA

88.  Under Clause 72, the Secretary of State may by order give the YPLA supplementary functions that are exercisable in connection with functions of the Secretary of State, and relevant to the provision of education or training within the YPLA's remit. This is a common power for NDPBs and was previously in the Learning and Skills Act 2000 in respect of the Learning and Skills Council.

89.  This is intended to enable the functions of the YPLA to develop over time to meet changing needs and circumstances, and as such it is considered appropriate for delegation. A similar approach is being taken elsewhere in the Bill, for example in clause 108 in relation to the Chief Executive for Skills Funding and in clause 181 in relation to the Qualifications and Curriculum Development Agency. As the types of supplementary functions which can be conferred will be limited by subsection (2)(b) to functions which are relevant to the YPLA's remit, it is considered that the negative resolution procedure will provide the appropriate level of Parliamentary oversight.

Clause 73: Directions by Secretary of State

90.  Clause 73 gives the Secretary of State the power to give directions to the YPLA covering a range of matters relating to the Agency's objectives and management, and the power is broadly comparable to that in Section 25 of the Learning and Skills Act 2000 in respect of the Learning and Skills Council.

91.  A general power to direct in relation to the performance of its functions may also be used if the Secretary of State is satisfied that the YPLA has failed to discharge a duty imposed by the Act or is proposing to act unreasonably. Subsection (4) prohibits such directions relating to an individual funding decision.

92.  As these are matters that relate to the normal day-to-day relationship between a department and an NDPB, it is not considered necessary for any form of Parliamentary oversight in respect of the direction making power. Requirements to ensure that there is proper scrutiny by Parliament of the activities of the YPLA are included elsewhere in the Bill. For example, the requirement in paragraph 14(5) of Schedule 3 that the Secretary of State make arrangements for laying a copy of the YPLA's annual report before Parliament.

PART 4 - THE CHIEF EXECUTIVE OF SKILLS FUNDING FOR ENGLAND

Clause 80: Apprenticeship functions

93.  Clauses 80 to 97 set out the main duties and responsibilities of the Chief Executive for Skills Funding ("the Chief Executive") in respect of apprenticeships, and in particular the duty to secure apprenticeship training for any suitably qualified young person aged 16 to 18.

94.  Subsection (1) of clause 80 contains a power for the Secretary of State to direct the Chief Executive to designate a person to undertake the Chief Executive's functions in respect of apprenticeships on his behalf. The direction may include reference to the description or identity of the person to be designated and may require the person designated to report to the Secretary of State on the conduct of his functions in respect of apprenticeships. This is intended to facilitate the establishment within the Skills Funding Agency of the new National Apprenticeships Service.

95.  As this is essentially an operational and administrative matter between the Secretary of State and the Chief Executive for Skills Funding, it was felt appropriate to delegate this power without the need for Parliamentary oversight. Parliamentary scrutiny of the operations of the National Apprenticeships Service and the wider Skills Funding Agency are provided for elsewhere in the Bill. For example, Paragraph 8(5) of Schedule 4 provides that the Secretary of State must lay before Parliament a copy of the Chief Executive for Skills Funding's annual and other reports.

96.  Subsection (5) of clause 80 sets out a list of the "apprenticeship functions" which are the functions of the office to be delegated. Subsection (7) gives a power for regulations to be made to amend or modify any enactment relating to a function of the office, including an enactment contained in subordinate legislation. The power to amend and modify the list of functions of the office will provide greater flexibility to respond to changing circumstances that may arise once the apprenticeship functions are operating in practice. It is proposed that the regulations would be subject to negative resolution.

Clause 85: Learning aims for persons aged 19 or over: provision of facilities

97.  Clauses 84 to 88 set out the duties on the Chief Executive of Skills Funding in respect of adult learners. Clause 85 imposes a duty on the Chief Executive to secure the provision of proper facilities for education or training to enable adults who lack particular skills to obtain relevant qualifications.

98.  Subsection (3)(b) of this clause provides that adult learners will fall within the scope of the new duties to be imposed on the Chief Executive if they do not have a qualification at that level, or one which appears to the Chief Executive to be at a comparable or higher level. Subsection (3)(c) provides a power to prescribe other conditions that must be met. This is a power which will enable the qualifying criteria to be adjusted over time to reflect changing priorities and changing qualifications and as such is suitable for delegation. It is proposed that the delegated power will be subject to the negative procedure because it is not unusual or wide ranging.

Clause 86: Learning aims for persons aged 19 or over: payment of tuition fees

99.  Clause 86 imposes a duty on the Chief Executive to ensure that education or training leading to certain qualifications is free for certain adult learners.

100.  Adults aged 19 or over will qualify for free tuition towards a specified literacy or numeracy qualification, or a vocational qualification at level 2, if they do not currently possess a qualification at this level or one which appears to the Chief Executive to be at a comparable or higher level.

101.  Adults aged 19 but less than 25 will qualify for free tuition towards specified qualifications at Level 3 (the equivalent to 2 A Levels) if they do not currently possess a qualification at this level, or one which appears to the Chief Executive to be at a comparable or higher level.

102.  Subsections (2)(c) and (4)(c) provide powers for the Secretary of State to make regulations to prescribe other conditions that must be met to qualify for free tuition. This is a parallel power to that included in section 85(3)(c), to enable qualifying criteria to be adjusted over time to reflect changing priorities and changing qualifications.

103.  Subsection (6) defines free tuition for the purposes of this section. The Chief Executive of Skills Funding is the primary funding body, and it is envisaged the Chief Executive will normally be responsible for the payment of fees. A further order-making power at subsection (6)(b) will allow the Secretary of State to specify a body as responsible for paying tuition fees, should in exceptional circumstances it be considered appropriate for another body be liable for the payment of tuition fees on behalf of an individual who qualifies for free tuition.

104.  The intention is that the cost of course fees will be covered by this clause for all specified qualifications. However, the costs of the examination will only be covered for certain qualifications, namely those in literacy and numeracy. The Secretary of State has the power under subsection (7)(b) to specify in regulations which fees relating to matters, such as examinations or preliminary tests, are "tuition fees" for the purposes of this clause. This is a point of detail which may need to be adjusted over time to reflect changing practice and qualifications.

105.  It is proposed that the delegated powers under subsections (2)(c), (4)(c), (6)(b) and (7)(b) of clause 94 will all be subject to negative resolution because they are not unusual or wide ranging.

106.  Subsection (5) also includes a power to amend subsections (2)(a) and (4)(a) by order to enable different ages to be inserted should the need arise. This is a measure to enable any changes that may be required over time to the age range of the group qualifying for the entitlement to be made, depending on changing priorities. As this is would be a fundamental change from the approach proposed in the Bill, and would entail amending primary legislation, it is considered appropriate for amendments made by orders under these powers to be subject to the affirmative resolution procedure.

Schedule 5: Learning aims for persons aged 19 or over

107.  Schedule 5 sets out which qualifications are relevant to the entitlements for learners aged 19 or over in clauses 85 to 87 of the Bill, and which are described above.

108.  Paragraph 3(1) of Schedule 5 provides a power to define in regulations what qualifications, or descriptions of qualifications, would for the purposes of entitlements in clauses 85 and 86 equate to a literacy qualification, a numeracy qualification, a vocational qualification at level 2 or a qualification at level 3. The relevant definitions that would apply on enactment are set out in paragraphs 4 to 7 of Schedule 5.

109.  Paragraph 3(2) provides that the qualifications may be specified by reference to an assessment made by the Chief Executive of the level of attainment demonstrated by a qualification, and the regulations may confer a function (which may include the exercise of discretion) on the Chief Executive for this purpose.

110.  Paragraph 9(c) provides a power for the Secretary of State to amend Part 1 of the Schedule so as to add or remove a category of qualification. The aim is to allow for vocational qualifications at level 2 no longer to be within scope of the entitlement if, for example, the Secretary of State, taking account of skills levels and demand at the time, considers that there was no longer a particular need for this to be a priority area.

111.  Paragraph 9 also confers a power to amend Part 2 of the Schedule by order so as to substitute a different qualification for those that would apply in paragraph 6 or 7 relating to Level 2 or Level 3 qualifications. This power might be used if in time a different qualification was considered a more appropriate reference point for the level of attainment concerned. There is in addition a power to make consequential amendments.

112.  Amendments to Schedule 5 could have significant implications for learners, and their entitlement to free tuition. In particular, an amendment of paragraph 1 or 2 will affect the basis on which the power to specify qualifications for the purposes of that paragraph operate, and therefore the basis on which clauses 85 and 86 operate. It is therefore considered appropriate that the powers should be subject to affirmative resolution procedure. This mirrors the approach taken to defining the qualifying criteria for the apprenticeship scheme in clause 88 - see above.

113.  Clauses 85 to 87 and Schedule 5 re-enact sections 4A, 4B and 4C of the Learning and Skills Act 2000, which were inserted by section 86 of the Education and Skills Act 2008.

Clause 87: Sections 85 and 86: supplementary

114.  Subsection (1) includes a power for the Secretary of State to specify in regulations circumstances in which, despite having a qualification, a person is to be treated for the purposes of clauses 85 and 86 as not having that qualification. The purpose is to enable learners who already have a literacy or numeracy qualification, or one at a comparable or higher level, but may have since lost the skills associated with it, to take a course to obtain the qualification again.

115.  Subsection (2) provides that such conditions may, in particular, relate to the possession, or lack, of a qualification specified in the regulations or the completion of, or failure to complete, a course for a specified qualification. It is envisaged that this power may be exercised in order to exclude from the scope of the duty individuals who repeatedly embark on, but fail to complete, courses of study.

116.  It is expected that regulations will be made under subsection (4) (which includes express power to sub-delegate) to confer a discretion on providers of education as to which test, assessment or tool they wish to use to assess the skill level of learners for these purposes. It will also be possible to provide for circumstances in which a person who has a particular skill, but not the qualification relating to it, is nevertheless to be treated as having that qualification. It is proposed that, as these powers relate to more detailed procedural matters about the circumstances in which some discretion might be permissible from the general principle included on the face of the Bill, it would be appropriate to delegate these powers and that the negative resolution procedure would provide the appropriate degree of Parliamentary scrutiny.

Clause 89: Duty of the Chief Executive to secure availability of apprenticeship places for persons aged 16 to 18

117.  Clause 89 sets out the duty on the Chief Executive to secure apprenticeship places for suitably qualified 16 - 18 year olds. It sets out the following requirements to be met if a place is suitable: that it is in one of two chosen sectors; it is at the appropriate level; and, it is within the person's reasonable travel area. There is a power in subsection (3) for the Secretary of State to make regulations setting out circumstances where an apprenticeship place is to be treated as having been, or not having been, made available for a person. This will allow for secondary legislation, if it is necessary in the future, to prescribe circumstances in which there is no need to make an apprenticeship place available, for example where a person has already had an appropriate place made available to them. These regulations are to be made by negative resolution.

Clause 93: Apprenticeship scheme requirements

118.  This clause sets out the eligibility requirements for the apprenticeship scheme, which include being available for employment under an apprenticeship agreement. Subsection (5) provides that the Secretary of State can make regulations for the circumstances in which a person can be treated as being available, or not being available, for employment under an apprenticeship agreement. It is anticipated that this may change over time in the light of practice and experience. Dealing with this by secondary legislation would provide flexibility to alter the arrangements in response to developing circumstances. This is an operational matter, and so considered appropriate for scrutiny by negative resolution.

Clause 94: Apprenticeship scheme requirements: interpretation

119.  Clause 94 sets out the qualifying criteria that young people aged 16 to 18 must meet to qualify for the apprenticeship scheme at different levels. A delegated power is included at subsection (2) to enable the Secretary of State to specify in regulations which qualifications or descriptions of qualifications count for the purposes of qualifying criteria in Clause 93. This regulation making power in clause 94(2) is intended to be subject to the negative resolution procedure to enable flexibility, while still providing an appropriate level of Parliamentary scrutiny.

120.  Subsections (3) to (6) define what qualifications would for the purposes of clause 93 equate to a Level 1 or 2 qualification and a qualification in functional skills in English or mathematics at level 1 or 2. Subsection (8) provides the Secretary of State with an order making power to amend these subsections so as to substitute a different qualification to those referred to on the face of the Bill.

121.  The power in subsection (8) is intended to provide flexibility over time as qualifications evolve or as priorities change. As amending these criteria may involve a fundamental change in the nature of the entitlement and would involve amending primary legislation, it is proposed that the affirmative procedure is appropriate.

Clause 95: Suspension of scheme

122.  Clause 95 provides a power for the Secretary of State to make an order which will suspend the apprenticeship scheme for up to two years in a specified area, in relation to a particular apprenticeship sector or to a particular apprenticeship sector at a particular level. There is currently no immediate need to exercise this power but it will allow for the suspension of the duty to secure sufficient apprenticeship places, where in the Secretary of State's view, economic or other extraordinary circumstances warrant such a suspension. This will provide the flexibility needed to in exceptional circumstances and at relatively short notice, when it would not be possible to fulfil the duty. This order making power will be subject to negative resolution.

Clause 96: Power to amend apprenticeship scheme

123.  Clause 96 confers on the Secretary of State the power to amend by order either the age limit specified in clause 90(2)(b) (currently 16-18 years) or the terms of the entry requirements for the apprenticeship scheme set out in Clause 93. This power is considered necessary to provide flexibility to amend the apprenticeship scheme over time to respond to changing circumstances or priorities. As any change would be fundamental to the operation of the scheme and would require primary legislation to be amended it is considered that the affirmative resolution procedure would be appropriate. This mirrors the approach take elsewhere in the Act, for example to the approach taken in clause 86(5) to amend the age eligibility for the post 19 learning entitlements.

Clause 104: Provision of services

124.  Clause 104 contains a power for the Chief Executive that is parallel to the YPLA power included in clause 66. It enables the Chief Executive to make arrangements with a number of permitted organisations to undertake services in connection his functions in relation to education or training. Subsection (4)(a) to (f) specifies a number of permitted organisations.

125.  It may be appropriate for the Chief Executive to provide services to a specific organisation not covered in subsection (4)(a)-(f). Under subsection (4)(g), an order made by the appropriate national authority will allow the Chief Executive to provide services to a recipient named in the order - for example, a third sector organisation. In England, this order making power is conferred on the Secretary of State, and it is proposed that as this is an operational matter, the negative resolution procedure provides the most appropriate level of Parliamentary scrutiny.

126.  Where a body is specified in this way, the Chief Executive will have the power to enter into such arrangements, but would not be compelled to, nor would such a body be compelled to be a party to such arrangements. The power to specify additional bodies is proposed for secondary, rather than primary, legislation, as the bodies with which the Chief Executive might make such arrangements could change over time. The approach of listing in the Bill those bodies with whom the Chief Executive can enter into shared services has been considered. However the list, which would need to cover bodies in Wales, Scotland and Northern Ireland, as well as England, would be unwieldy and changes to primary legislation would be needed as and when changes to primary or secondary legislation defining specific types of bodies were made.

127.  The order making approach represents a reserve power for situations that might occur in the future. The clause re-enacts section 11 of the Further Education and Training Act 2007.

Clause 108: Power to confer supplementary functions on Chief Executive

128.  Under clause 108, the Secretary of State may by order give the Chief Executive of Skills Funding supplementary functions that are exercisable in connection with functions of the Secretary of State, and relevant to the provision of education and training within the Chief Executive's remit.

129.  This is intended to enable the functions of the Chief Executive to develop over time to meet changing needs and circumstances, and as such it is considered appropriate for delegation. A similar approach is being taken elsewhere in the Bill, for example in clause 72 in relation to the YPLA and clause 181 in relation to the Qualifications and Curriculum Development Agency. As the types of supplementary functions which can be conferred will be limited by subsection (2)(b) to functions which are relevant to the Chief Executive's remit, it is considered that the negative resolution procedure will provide the appropriate level of Parliamentary oversight.

Clause 109: Strategies for functions of Chief Executive

130.  This clause provides that the Secretary of State may by order specify a body to formulate and keep under review a strategy setting out how specified functions of the Chief Executive, in relation to a specified area of England, are to be carried out in relation to the area. This could be the whole of England, but may not be exclusively Greater London or a part of Greater London. This will enable strategies to be formulated for example in relation to specific functions of the Chief Executive in a specified geographical area of England or for the whole of England in relation to a particular specified sector or theme.

131.  The Secretary of State will have the power to issue directions and guidance in relation to the formulation and review of these strategies. The intention of this provision is to ensure that any strategy in accordance with which the functions of the Chief Executive are carried out is a properly-formulated and appropriate. It is proposed that the power be subject to negative procedure as the detailed arrangements will be different for each strategy body and will change over time. This power is re-enacting sections 24A and 24C of the Learning and Skills Act 2000 (which were inserted by section 4 of the Further Education and Training Act 2007).

Clause 110: Strategy for functions of Chief Executive: Greater London

132.  This clause requires that regulations provide for the establishment of a London body to formulate a strategy setting out how specified functions of the Chief Executive are to be carried out in Greater London and keep it under review. The regulations must provide for the body to consist of the Mayor of London - who must be the chair - and other members appointed by the Mayor in accordance with the regulations. The Secretary of State will have the power to issue directions and guidance in relation to the formulation and review of the strategy. The intention is to ensure that any strategy in accordance with which the functions of the Chief Executive are carried out is a properly-formulated and appropriate. In line with the approach proposed under clause 108, it is considered that the negative resolution procedure will provide for the appropriate level of Parliamentary oversight.

Clause 116: Directions: funding of qualifications

133.  This clause enables the Secretary of State to direct the Chief Executive not to fund a specific qualification or qualifications. The direction from the Secretary of State would be expected to specify the qualification or qualifications which he considers to be inappropriate for public funding. Because directions will be made only on a case-by-case basis, it is not possible to make provision in the Bill itself. It is also essentially a power to prevent an administrative action, and so it is not thought necessary to provide any Parliamentary scrutiny.

Clause 117: Other directions relating to functions of the office

134.  This clause provides a power for the Secretary of State to give directions to the Chief Executive containing objectives which the Chief Executive should seek to achieve, time limits within which to achieve them, and directions as to the performance of his functions if the Secretary of State is satisfied that the Chief Executive has failed to discharge a duty or is acting or proposing to act unreasonably. This clause provides an important safeguard for the Secretary of State, to be exercised only as a power of last resort. It is therefore appropriate to have a direction-giving power for this purpose, and it is not thought necessary to provide any Parliamentary scrutiny as it is only ever likely to be used on an ad hoc basis. The clause is similar to section 25 of the Learning and Skills Act 2000, which provides a similar safeguard in respect of the LSC.

Clause 120 and Schedule 6: Dissolution of the Learning and Skills Council for England

135.   Schedule 6 contains minor and consequential amendments arising from the dissolution of the Learning and Skills Council. Paragraph 55 inserts section 208A into the Education Act 2002, which enables the Secretary of State or the Welsh Ministers to make regulations about recoupment. This is the process whereby the YPLA and local authorities will be able to recoup the costs of securing education or training from each other. Where the YPLA secures provision under clause 64 in respect of a person belonging to the area of a local authority in England or Wales, it will be able to recover the cost from that authority. And where a local education authority secures provision within section 64(1) or (3) in respect of a person belonging to the area of an English authority, it will be able to recover the cost from the YPLA. Provision about the detailed recoupment arrangements should not be included in primary legislation and should be delegated to regulations. And it is considered that the regulations should be subject to the negative resolution procedure, in line with the equivalent regulations for inter-authority recoupment, which are made under section 207 of the 2002 Act.

Clause 121 and Schedule 7: Dissolution of the Learning and Skills Council for England: transfer schemes

136.  Schedule 7 allows the Secretary of State to make a scheme to provide for the transfer of LSC staff to new employment, and for the wider winding up of the LSC. As these are essentially detailed administrative matters about named individuals, it is considered appropriate that they should be delegated and not subject to parliamentary procedure.

PART 6 - THE SIXTH FORM COLLEGE SECTOR

Clause 122 and Schedule 8: Sixth Form College sector

137.  Clause 122 and Schedule 8 make provision about the sixth form college sector. The Schedule inserts new sections 33A to 33N and makes other consequential amendments to the Further and Higher Education Act 1992. Section 33A(1) of the Schedule allows the Secretary of State to designate an FE corporation, or a body corporate established by an order under section 143(4) of the Learning and Skills Act 2000, as a sixth form college corporation.

138.  There are 95 self identified sixth form colleges ("SFCs"), and invitations to be designated as an SFC will not be made until after Royal Assent. This will allow time for SFCs to consider the implications before deciding whether or not to join the sector. This is a new power, but reflects section 15 of the 1992 Act, and as it is essentially a procedural matter it is considered that the negative resolution will provide the appropriate degree of Parliamentary scrutiny.

139.  The order will only affect the colleges that apply and a time limit will be placed on the initial designation process. Section 33A(5) limits the time frame in which an order under section 33A(1) may be made, by conferring power on the Secretary of State by order to specify the date after which it may not be exercised.

140.  Section 33B(1) enables subsequent designation of an FE corporation, or a body corporate established by an order under section 143(4) of the LSA 2000, as an SFC corporation after the initial order. Institutions within subsection (2) will be able to apply to the Secretary of State to be designated as an SFC corporation. As this will be considered on a case by case basis, it is appropriate that the Secretary of State can designate each college by order.

141.  Section 33C(1) refers to the establishment of new bodies corporate as SFC corporations. This would to be used, for example, where a merger between two institutions has created an institution that wishes to be designated as an SFC corporation.

142.  Section 33D(1) allows a designated SFC to apply be re-designated as an FE corporation; section 33N(1) provides for an SFC corporation to be dissolved and section 33N(6) allows the Secretary of State to transfer staff from the sixth form college being dissolved.

143.  As these are all essentially administrative or procedural matters, it is proposed that all of the above delegated powers should be subject to negative resolution.

Part 7 - Ofqual

144.  Part 7 provides for the establishment and functions of a new body, the Office of Qualifications and Examinations Regulation (Ofqual), whose purpose will be to regulate qualifications and assessments.

Clause 127: "Regulated qualifications"

145.  Clause 127 defines "regulated qualification" for the purposes of Part 7. Essentially a "regulated qualification" will be any qualification awarded or authenticated in England or vocational qualification awarded or authenticated in Northern Ireland, which is (a) not a foundation degree, first degree or degree at a higher level, and (b) is awarded or authenticated by an awarding body recognised by Ofqual.

146.  Subsection (5) includes an ordermaking power to enable the Secretary of State to discontinue Ofqual's role in Northern Ireland by repealing subsection (2)(b). Subsection (7) requires the Secretary of State to consult the Department for Employment and Learning in Northern Ireland before making any such order. This power is intended to allow further evolution of how vocational qualifications are regulated in Northern Ireland. An order under subsection (5) is subject to the negative resolution procedure, except where it also contains consequential amendments or repeals of other primary legislation (as allowed by subsection (6)) when it is subject to the affirmative resolution procedure. Although the repeal of subsection (2)(b) would constitute an amendment of primary legislation, the negative resolution procedure is considered appropriate because the scope of the powers is narrow and is specified on the face of the Bill. Where an order under subsection (5) contains other changes to primary legislation which are not apparent on the face of the Bill, then it is considered right to make the exercise of that power subject to the affirmative resolution procedure.

Clause 155: Powers to require information

147.  Clause 155 sets out Ofqual's duties to review National Curriculum and Early Years Foundation Stage assessment arrangements.

148.  To enable Ofqual to carry out this role effectively, clause 155 grants it powers to require certain people to provide it with the information it considers it needs relating to this role. Subsections (2)(d) and (4)(d) includes powers for the Secretary of State to specify in regulations any other persons who should be subject to this requirement. These powers are required to allow for flexibility for further organisations to be added should, for example, assessment arrangements change in the future and different bodies become involved in the process. This is essentially an operational matter, and would be a modification of the information-gathering powers included on the face of the Bill. It was considered appropriate that the powers should be delegated, and that negative resolution procedure would provide the appropriate level of Parliamentary scrutiny.

Schedule 12: Ofqual and the QCDA: minor and consequential amendments

149.  Paragraphs 31 to 37 of Schedule 12 make a number of amendments to the Education Act 2002 to reflect the establishment of Ofqual and the QCDA.

150.  Paragraph 32 amends section 76 of the 2002 Act, which deals with the interpretation of Part 6 of that Act which concerns the Curriculum in England, and in particular defines assessment arrangements and their purpose for a key stage. In defining "assessment arrangements" section 76 specifies the purposes of the arrangements. The amendment allows the Secretary of State by order to add to the specified purposes.

151.  Assessment arrangements have evolved over the last few years and are likely to continue to do so. Being able to amend the purposes of assessments or to add purposes by order will allow for greater flexibility, and as such it is proposed that this power is delegated and subject to the negative resolution procedure. Ofqual will have regard to these purposes in keeping the assessment arrangements under review.

152.  Paragraph 35 amends section 87 of the 2002 Act. The amendments relate to the existing powers of the Secretary of State under section 87(3)(c) by order to specify National Curriculum assessment arrangements in relation to each key stage. The amendments do not represent a significant extension of the existing powers, and therefore no change is proposed to the Parliamentary procedure which applies to orders under section 87(3)(c).

153.  Paragraphs 38 to 42 make a number of similar amendments to the Childcare Act 2006 to reflect the establishment of Ofqual and the QCDA.

154.   Paragraph 39 amends section 41 of the Childcare Act 2006, which deals with the learning and development requirements for early years providers and in particular describes the purpose of arrangements for assessing children in early years settings. The amendment will enable the Secretary of State to specify any additional purposes for Early Years Foundation Stage (EYFS) assessments, and subsequently amend those additional purposes if necessary. The EYFS, and the assessment arrangements, were only introduced in September 2008 and (as with the National Curriculum assessment arrangements) are likely to evolve over time. Being able to add further purposes for the EYFS assessment arrangements by regulations will allow for greater flexibility.

155.  The ordermaking power in section 41 is subject to the negative resolution procedure. It is appropriate that Parliament should have the opportunity to scrutinise any proposed additional purpose for the EYFS assessment arrangements, and the negative procedure will allow this without unduly taking up Parliamentary time and resources.

156.  There are further amendments in paragraphs 40 to 42 to existing delegated powers in sections 42, 44 and 46 of the Childcare Act 2006 which do not represent any significant extension of the existing powers, and the Parliamentary procedure already attached to those delegated powers therefore remains appropriate.

PART 8 - QUALIFICATIONS AND CURRICULUM DEVELOPMENT AGENCY

157.  Part 8 deals with the change of the Qualifications and Curriculum Authority into the Qualifications and Curriculum Development Agency (QCDA).

Clause 171: Qualifications within the QCDA's remit

158.  Clause 171 sets out the qualifications which fall within QCDA's remit. These are essentially academic and vocational qualifications in England which do not fall within a specified description of qualifications awarded by higher education institutions. Subsection (2) gives the Secretary of State an ordermaking power to provide that specified qualifications which might otherwise meet these criteria should be outside the QCDA's remit. This is a future-proofing measure designed to allow the Secretary of State to restrict QCDA's scope so its functions do not apply to certain descriptions of qualifications. The intention is that this power could be used for example, to remove QCDA's functions in relation to vocational qualifications, if the Department for Innovation, Universities and Skills were to conclude at a later date that it did not wish QCDA to have advice and review functions with respect to these qualifications. As this is an operational matter, and it will only be possible to narrow the range of qualifications in respect of which QCDA has functions, it is considered appropriate to delegate this power, and that the negative resolution procedure will provide the right degree of Parliamentary scrutiny.

Clause 181: Power to confer supplementary functions on the QCDA

159.  Clause 181 includes a power for the Secretary of State to confer supplementary functions on the QCDA, where they are exercisable in connection with the matters listed in subsection (2). This is intended as a future-proofing measure, to enable the functions of the QCDA to develop over time to meet changing needs and circumstances: as such it is considered appropriate for delegation. A similar approach is being taken elsewhere in the Bill, for example in clause 108 in relation to the Chief Executive for Skills Funding. As the types of supplementary functions which can be conferred will be limited to those areas specified in subsection (2) and must be within the QCDA's remit, it is considered that the negative resolution procedure will provide for the appropriate level of Parliamentary oversight.

PART 9 - CHILDREN'S SERVICES

Clause 187: Children's Trust Boards

160.  This clause inserts new sections 12A to 12D, and substitutes new sections 17 and 17A as well as making other amendments to the Children Act 2004.The regulations in new section 12A(4) will allow the Secretary of State to describe which of the "relevant partners" specified in section 10 of the Children Act 2004 do not need to be included in Children's Trust Boards. The "relevant partners" for the purposes of section 10 of that Act are currently a police authority, local probation services, a youth offending team, a Strategic Health Authority and Primary Care Trust, a person providing services in pursuance of section 68 of the Education and Skills Act 2008 and the Learning and Skills Council for England. Children's Trust Boards (CTBs) will have a more strategic role than the relevant partners' duty to co-operate to improve children's well-being in section 10 of the Children Act 2004 (commonly known as 'Children's Trusts') and separate functions, so it is possible that not all "relevant partners" would be appropriate as CTB members. The Strategic Health Authority might, for example, not be fully suited to CTB membership given its regional, and not local, focus. The regulations will reduce the number of required CTB members, and lessen the burden on some "relevant partners". However, they will not preclude "relevant partners" from being on the CTB, since they could be invited on to a CTB by the local authority if considered appropriate. A smaller membership should lead to more effective working. This is a new delegated power and stakeholders will be fully consulted. It is proposed that these regulations be subject to negative resolution.

161.  New section 12B(1)(b) allows the Secretary of State to add to the functions of the CTB. The only functions of CTBs will be to prepare, review and monitor the local area's Children and Young People's Plan (CYPP), and CTB partners' compliance with that plan. The regulations provide that any new function placed on the CTB must relate to improving the well-being of children or relevant young persons in each Board's local area. As CTBs are established, it may become clear that they should have responsibility for other functions related to the well-being of children. By tying future functions to improving the well-being of children or relevant young persons in a CTB's local area, legislation ensures that the power to add further functions to the CTB is limited to this purpose. The CTB includes partners from several different bodies and organisations, and as such it is considered appropriate that any decision to confer new functions on the CTB should be subject to the affirmative procedure. This is a new power.

162.   New section 17(4) provides for regulations to require CTBs to set out the CTB partners' strategy for co-operating with each other in order to improve well-being of local children and young people in a CYPP. The regulations will cover the preparation, publication and review of the CYPP, consultation during the preparation of the plan and matters that should be dealt with in the plan. The overall legislative framework and the substantive policy provisions for CYPPs are set out in the Bill. However, it is important to retain some flexibility on the detailed content of the regulations to respond to changing circumstances.

The preparation, publication and review of the local authority owned CYPP, and matters to be dealt with in the plan are currently covered by the Children and Young People's Plan (England) Regulations 2005 and the Children and Young People's Plan (England) (Amendment) Regulations 2007. The statutory basis for these regulations is provided by the current section 17 of the Children Act 2004. Those regulations relate to the CYPP produced and published by the local authority. The new regulations made under new section 17 will relate to the CYPP prepared and published (in effect, 'owned' by the CTB). The powers will be subject to negative resolution and there is a commitment to consult stakeholders before finalising and publishing the regulations.

Clause 188: Targets for safeguarding and promoting the welfare of children

163.  Clause 188 provides for the Secretary of State to set targets for children's services authorities in England for safeguarding and promoting the welfare of children, in accordance with regulations, and requires a children's services authority to act in a manner that secures the meeting of the targets. Subsection (2) provides that the regulations may, in particular, make provision about the matters by reference to which targets may or must be set, the periods to which targets may or must relate, the procedure for setting targets and specify requirements with which the children's services authority must comply in connection with the setting of targets. Lord Laming recommended in his Report that the National Indicator Set should be revised with new national indicators for safeguarding and child protection developed for inclusion in Local Area Agreements. The Government has committed to reviewing the range of safeguarding targets and will publish a new framework for targets in the autumn 2009. As the intention is to take the targets from the National Indicator Set, and as the regulations will otherwise deal with procedural matters, it is appropriate for the regulations to be subject to negative resolution.

Clause 191: Arrangements for Children's Centres

164.  This clause inserts new sections 5A to 5G into the Childcare Act 2006. Section 5B gives the Secretary of State power to make regulations to introduce requirements about the staffing, organisation and operation of a Sure Start Children's Centre. For example, regulations may be used to introduce general requirements about the appointment of specific staff or the qualifications which staff must have. Regulations will, in particular, be able to require the local authority to secure that governing bodies are established for each Sure Start Children's Centre. The regulations may also impose responsibilities and confer powers on those governing bodies such as allowing them to hold budgets and enter into contracts in their own right.

165.  Evidence has shown that proper governance arrangements are essential for the successful delivery of services for children and families. For that reason section 5C requires all Sure Start Children's Centres to have Advisory Boards. However, Sure Start Children's Centres are at too early a stage in their development to have further uniformity imposed on them. Taking a power to enable requirements to be set out at a later date will allow the opportunity and flexibility to consider and consult on matters of detail relating to their staffing, organisation and operation before imposing more detailed requirements in regulations. The regulation-making power is subject to negative resolution; it does not allow amendment to primary legislation and similar powers around requirements about school governing bodies are subject to negative resolution.

Clause 192: Inspection of Children's Centres

166.  Clause 192 inserts a new Part 3A into the Childcare Act 2006 dealing with the inspection of Sure Start Children's Centres by Her Majesty's Chief Inspector of Education, Children's Services and Skills ("the Chief Inspector"). The delegated power in new section 98A(1) enables the Secretary of State to specify the intervals within which Sure Start Children's Centres must be inspected. This will mean that the Chief Inspector must inspect each one at least once within that interval (for example, an interval of 3 years). The power in section 98A(3) enables regulations to specify circumstances in which the Chief Inspector is not required to inspect Sure Start Children's Centres within the prescribed intervals. This would allow the requirement to be lifted in situations where it would otherwise be difficult or unnecessary for the Chief Inspector to inspect. Examples might be where Sure Start Children's Centres which had been given a very good report previously might not need to be inspected so frequently, or to give the Chief Inspector more flexibility in aligning the scheduling of a joint inspection of Sure Start Children's Centres with co-located schools.

167.  New section 98B requires the Chief Inspector to make a written report of an inspection. The high-level purpose of the report is set out in subsection (2). The delegated power in subsection (3) will enable the Secretary of State to set out in more detail the matters to be dealt with in a report and will enable these to be amended over time if the requirements for an inspection change, and different criteria or matters become important. The exact content of the report is still being considered, but it is envisaged that it will include assessments of the quality of the leadership and management of the centre; how well services are integrated; and the ease of access to services including outreach activities. The matters specified in the regulations made under subsection (3) must be for the purposes of subsection (2), so there is a limit on the sorts of matters which could be included in regulations.

168.  Work is ongoing with Ofsted to define both the timing of inspections, and the detailed content of the Chief Inspector's report. Subsection (2) requires the report to address a particular Sure Start Children's Centre's contribution to integrating services, facilitating access to services and maximising benefit to users of the services, as well as assessing their contribution to well-being outcomes for children. However, the regulation-making power will allow time for further consideration and consultation on matters of detail relating to inspection reports. It will also allow Ofsted to pilot the inspections regime first to help inform decisions about the appropriate intervals for inspections, and the specific matters which Ofsted should report on. Over time, the effectiveness of the inspection and reporting processes will also need to be reviewed and assessed, and the regulation-making power will ensure that matters to be dealt with in the report can be changed to meet any developments. It is proposed that both regulation-making powers are subject to the negative resolution procedure. For the powers in new section 98A this level of Parliamentary scrutiny is in line with equivalent powers in the Childcare Act 2006 to specify intervals (and disapply the intervals) for inspections of registered childcare. The power in new section 98B to specify matters to be dealt with in the inspection report is essentially to set out further detail about the purposes of the report already set out on the face of the Bill.

Clause 195: Free of charge early years provision: budgetary framework: England

169.  This clause inserts new section 47ZA into the School Standards and Framework Act 1998 ("SSFA 1998"). Regulations made under subsections (2) and (4) of section 47ZA may determine, amongst other things, the factors and criteria which a local authority must (and must not) take into account in determining the amount of any relevant financial assistance, other requirements which the authority must comply with, the consultation to be carried out by the authority, the information which the authority must give to the childcare provider about how the determination was made, and the circumstances in which the authority will be required to re-determine the amount. The delegated power ensures that provisions can be adapted in the light of experience, to ensure that the system works in the best interests of the early years education system and is consistent with the long established legislative framework for determining the allocation of money to maintained schools in that Act. This power is new but mirrors, to the extent necessary to ensure consistency, the Secretary of State's existing powers in section 47(2) of the SSFA 1998 in respect of school funding.

170.  These regulations will be subject to the negative resolution procedure, as are regulations for determining the allocation of funds to maintained schools in section 47 of the SSFA 1998. This is appropriate because they are dealing with technical and administrative details.

PART 10 - SCHOOLS

Chapter 2 - COMPLAINTS - ENGLAND

Clause 199: Complaints to which this Chapter applies

171.  Clauses 199 to 217 establish a new system for handling complaints about schools in England by pupils or their parents. Clause 199 defines which complaints qualify for the purposes of the new system. These are to be about acts of the governing body or prescribed functions of the head teacher. Subsection (2)(d) is thus a delegated power to prescribe which head teacher functions will be subject to the new system, which is a matter about which the department will wish to consult. As and when new functions are given to head teachers this delegated power will allow such functions to be added at a later date so is needed for flexibility. Subsection (3) sets out certain matters which will not be capable of forming the subject matter of a complaint. These include matters about which there is already a right of appeal. Subsection (3)(b) is a delegated power to prescribe rights of appeal. This provides the necessary flexibility so that new rights of appeal may be included in the future. Subsection (6)(d) requires that for a complaint to qualify, it must be made while the pupil still attends the school in question or within a prescribed period of the pupil leaving the school. The negative procedure will provide the appropriate level of Parliamentary scrutiny.

Clause 200: Power of Local Commissioner to investigate complaint

172.  Clause 200 enables the Local Commissioner to investigate a complaint. Under subsection (6) when specifying the period in question, the Secretary of State may also prescribe in regulations circumstances in which a Local Commissioner may exercise discretion over the qualifying period.

173.  As these are essentially procedural matters, it is considered appropriate to delegate them and that the negative procedure will provide the appropriate level of Parliamentary scrutiny.

Clause 213: Secretary of State's power of direction

174.  This clause deals with circumstances where a Local Commissioner has resolved a complaint and made recommendations under clause 204(4) to remedy the complaint or prevent any future injustice, and the governing body has failed to comply. In such circumstances, the Secretary of State may require the governing body to comply with a recommendation, and the direction would on application on behalf of the Secretary of State, be enforceable by mandatory order. As this is an operational matter, it was felt suitable for delegation without Parliamentary oversight, and the clause provides for judicial rather than Parliamentary scrutiny.

Clause 214: Disapplication of certain powers of Secretary of State

175.  Clause 214 amends sections 496 and 497 of the Education Act 1996. The effect of the amendments being made are that the Secretary of State will no longer have the power to make a direction in relation to complaints against governing bodies of schools that have or could have been made to the Local Commissioner. Subsections (1) and (2) both insert new delegated powers into sections 496 and 497 respectively to provide that regulations may prescribe that the Secretary of State can make a direction in relation to a matter that could have been referred to the Commissioner where the complaint is from a prescribed person, or a person of a prescribed description. It is envisaged that such a prescribed person might include the local authority or governing bodies of other schools. The negative procedure is considered appropriate as the effect is to preserve (rather than extend) the Secretary of State's existing direction powers in relation to complaints by prescribed persons.

Clause 215: Power to amend meaning of 'qualifying school'

176.  The order-making power will ensure that other types of schools, for example Academies, can be added at a later date. Academies are relatively new to the education world and have independent status. Many Academies are still in the very early phase of development and, unlike other schools in the maintained sector, have yet to fully embed their procedures. Giving them the time to focus on the key challenges in the first few years would be beneficial, and also allows the Service to be properly tested. The regulations will be subject to affirmative resolution as the effect will be to extend the effect of primary legislation.

Chapter 3 - inspections

Clause 218: Interim statements

177.  Chapter 3 of part 10 introduces a new power to enable Ofsted to make an interim statement on a school between inspections. The clause gives the Secretary of State the power to prescribe the period within which a school must ensure a copy of the interim statement is received by parents. The intention is to seek to ensure that parents receive the statement within a reasonable period of the school receiving it. The power mirrors the power in respect of the distribution to parents of Ofsted inspection reports, and specifying the power in regulations provides for a degree of operational flexibility. The negative procedure is considered appropriate as this is essentially a procedural matter and mirrors the current regulations for school inspections.

Chapter 4 - School Support staff negotiating body (the "SSSNB")

178.  Chapter 4 will establish the SSSNB as a statutory body which will submit agreements reached by the Body on school support staff pay and conditions to the Secretary of State for consideration. The Secretary of State has various order making powers set out in the following paragraphs to ratify, require specified persons to have regard to the agreement or make provision otherwise than in the terms of the agreement. It is proposed that all these powers be exercisable by order subject to negative resolution as they contain detail not appropriate for primary legislation, they will be specific to particular groups of staff and may need to be made at regular intervals.

179.  Clause 230 makes supplementary provision in relation to the orders including permitting them to have retrospective effect (but not so as to reduce remuneration or detrimentally alter employment conditions), and allowing for provision to be made by reference to the exercise of powers under section 35 or 36 of the Education Act 2002, or by reference to the SSSNB agreement or other document.

Clause 220 and Schedule 15: The School Support Staff Negotiating Body (SSSNB)

180.  This clause and Schedule 15 (paragraph 1(2)) allow the Secretary of State to prescribe by regulation those school support staff organisations and those school support staff employer organisations that he must consult for the purposes of making or revising the constitutional arrangements of the SSSNB. This power provides the Secretary of State with the necessary flexibility to enable him to ensure that those organisations that are consulted best represent the interests of school support staff and provides the Secretary of State with the necessary flexibility to enable him to consider whether other organisations would better represent those interests.

181.   Paragraph 2(1) of Schedule 15 provides that the organisations prescribed under paragraph 1(2) will represent the interests of the support staff and their employers respectively on the SSSNB.

182.  It is proposed that these regulations be subject to negative resolution as they relate to operational details and their scope is clearly defined on the face of the Bill.

Clause 224: Agreement submitted by SSSNB under section 222 or 223:

183.  Where the SSSNB submits an agreement, this power enables the Secretary of State to make an order ratifying that agreement. Such an order will have effect for determining the matters to which the agreement relates (i.e. the remuneration of school support staff in schools maintained by local education authorities in England and other conditions of employment relating to their duties and working time).

Clause 226: SSSNB's submission of agreement following reconsideration: powers of Secretary of State

184.  Where the SSSNB submits an agreement to the Secretary of State following reconsideration of it, this clause provides the Secretary of State with the power under subsection (2)(a), (c) and (d) by order to: ratify the agreement; require particular persons to have regard to the agreement when exercising particular functions; or, make provision in relation to a matter to which the agreement relates otherwise than in terms of the agreement in certain circumstances.

Clause 227: Powers of Secretary of State in absence of SSSNB agreement

185.  This clause provides the Secretary of State with powers to make orders in circumstances where the SSSNB is unable to reach agreement on a matter referred to it; or agree any revisions to an agreement referred back to the SSSNB for reconsideration under subsection (2)(b) and (4)(b), by a specified date. They will be used if the Secretary of State considers it necessary as a matter of urgency to make provision for the determination of the remuneration and/or other conditions of employment of support staff in the absence of an agreement.

Clause 233: "School Support Staff"

186.  This clause, at subsection (3)(b), provides the Secretary of State with the power to prescribe in regulations those who are to be excluded from the scope of the SSSNB. It is envisaged that the power to make regulations will be exercised so as to exclude from the definition of "school support staff" persons whose terms and conditions of employment are determined in accordance with agreements of other bodies such as (for instance) the Soulbury Committee. The negative resolution procedure provides the appropriate level of parliamentary scrutiny for such operational matters.

PART 11 - LEARNERS

Clause 242: Short Stay Schools: miscellaneous

187.  Clause 242 makes miscellaneous changes around the provision of short stay schools in England. Short stay schools are those that are set up and run directly by the local education authority, using powers in Section 19 of the Education Act 1996, to provide education for children who cannot, for whatever reason, attend a mainstream or special school.

188.  Sub-section (2) creates a power by which the Secretary of State may make consequential amendments concerning the change to the name of pupil referral units in law. This power will be used to ensure that all references to 'pupil referral unit' in legislation are updated with the new name, including references in the Apprenticeships, Skills, Children and Learning Bill. As these powers will enable amendments to be made to primary as well as secondary legislation, their exercise is being made subject to the affirmative resolution procedure.

189.  Sub-section (3) inserts a new section 3A into Schedule 1 to the Education Act 1996. This section 3A creates new regulation-making powers, which will be able to do the following:

  • require a local education authority to obtain the consent of the Secretary of State, in specified circumstances, to the closure of a short stay school (currently known as Pupil Referral Units - PRUs);
  • confer powers on the Secretary of State to direct a local authority about the exercise of their functions regarding short stay schools and the education of children who are unable to attend a mainstream or special school; and
  • require a local authority to comply with these directions.

190.  The government envisages that these powers will be used primarily to enable the Secretary of State to direct the alternative that will replace a short stay school he decides should close. The Secretary of State already has the power to direct the closure of a short stay school that has been described by Ofsted as requiring special measures. It is also intended that the Secretary of State will be able to require the LA to invite bids from external providers for the delivery of the alternative provision, and to restrict the circumstances in which an LA can close a short stay school. Statutory instruments made under these powers will be subject to the negative resolution procedure. This is consistent with other regulation making powers in relation to pupil referral units contained in Schedule 1 to the Education Act 1996.

PART 12: MISCELLANEOUS

Clause 243 and 244 information about planned and actual expenditure

191.  Clause 243 provides for the Secretary of State to direct LAs in England to provide information about planned and actual expenditure in connection with their education and children's services functions. Clause 244(5) allows the SoS by order to amend the provision to change the functions to which this applies. As this is a power to amend primary legislation, any such order will be made by the affirmative procedure.

Clause 249: Student loans under the 1998 Act: IVAs

192.  This clause allows the Secretary of State to make provision in regard to sums which a borrower receives or is entitled to receive by way of loan before or after an individual voluntary arrangement (IVA) takes effect and to exclude or modify legislation concerning an IVA in relation to student loans. The clause seeks to establish a similar position with existing legislation that excludes student loans from bankruptcy proceedings. This was considered for IVAs previously under the Higher Education Act 2004, but at that time the level of IVAs which affected student loans was not of a significant level to warrant legislation.

193.  The power sought is similar to the delegated power applied to bankruptcy proceedings under section 22(3)(f) of Teaching and Higher Education Act (THEA) 1998, as introduced under section 42 of the Higher Education Act 2004. Rather than place any provision in regard to sums which a borrower received or is entitled to receive before or after an IVA takes effect and to exclude or modify on the face of this Bill, a delegated power allows the Secretary of State the necessary flexibility that is afforded for other functions linked to the financial provision of student loans and student support. Student loans are also excluded from forthcoming legislation on Administrative Orders, Enforcement Restriction Orders and Debt Relief Orders, so excluding them from IVAs is consistent with wider Government policy.

194.  This is a supplemental amendment to section 22(3) of the THEA 1998 and supplements the delegated power under clause 22(1). The Parliamentary control is determined under section 42(2) of the THEA 98 and it is appropriate to follow the procedure that applies to other regulations made under this power i.e. negative resolution.

Clause 250: Student Loans under the 1990 Act: IVAs and bankruptcy

195.  In respect of England and Wales this clause amends Schedule 2 to the Education (Student Loans) Act 1990 by inserting new provisions to the 1990 Act which ensure that student loans are ignored for the purposes of IVAs where such loans are received or entitled to be received by the borrower before or after an IVA takes effect.

196.  In respect of Northern Ireland this clause amends Schedule 2 to the Education (Student Loans) Act 1990 which inserts bankruptcy provisions preventing a borrower with a student loan debt under the 1990 Act from forming part of the bankruptcy debts of such a person. It also provides that student loans are ignored for the purposes of IVAs where such loans are received or entitled to be received by the borrower before or after an IVA takes effect under Part 8 of the Insolvency (Northern Ireland) Order 1989. As above the delegated power will be subject to negative resolution.

Clause 252: Complaints: Wales

197.  This clause gives the Welsh Ministers the power to make regulations which would set out the procedure for governing bodies of maintained schools to follow when they were dealing with complaints.

PART 13: GENERAL

Clause 254: Orders and regulations

It is possible that paragraphs 1 and 2 of Schedule 5 could be amended in a way which might result in hybridity (given that qualifications are awarded by bodies which have private interests). For that reason clause 254(10) makes provision so as to disapply the special procedure in the Lords for hybrid instruments. Provision of this kind has become fairly common.

Clause 257: Power to make consequential and transitional provision etc

198.  This clause is the usual power to make by order such supplementary, incidental, consequential, transitory, transitional or saving provision as the Secretary of State thinks appropriate for the purpose of the Act. To the extent such an order amends primary legislation it will be made by affirmative procedure.

Department for Children, Schools and Families and Department for Innovation, University and Skills

May 2009


1   Cm 7348 - http://publications.dcsf.gov.uk/default.aspx?PageFunction=productdetails&PageMode=publications&ProductId=CM+7348& Back

2   http://www.dius.gov.uk/consultations/documents/apprenticeship_bill.pdf Back

3   Innovation, Universities, Science and Skills - Seventh Report http://www.publications.parliament.uk/pa/cm200708/cmselect/cmdius/1062/106202.htm Back

4   Children, Schools and Families Committee - Fourth Report of Session 2007-08 http://www.publications.parliament.uk/pa/cm200708/cmselect/cmchilsch/1082/1082.pdf Back

5   Confidence in Standards: Regulating and developing qualifications and assessment - Cm7281 - December 2007 http://www.dcsf.gov.uk/14-19/documents/7748-DCFS-ConfidenceInStandards.pdf

Confidence in Standards: regulating and developing qualifications and assessment - next steps, June 2008

http://www.dcsf.gov.uk/14-19/documents/7748-DCFS-ConfidenceInStandards.pdf

Back on Track: A strategy for modernising alternative provision for young people - 20 May 2008 http://www.dfes.gov.uk/exclusions/uploads/7668-DCSF-Back%20on%20TrackWEB.pdf

Back on Track: A strategy for modernising alternative provision for young people - 20 May 2008 http://www.dfes.gov.uk/exclusions/uploads/7668-DCSF-Back%20on%20TrackWEB.pdf

Delivering the Children's Plan - Strengthening Children's Trusts: legislative options http://www.dfes.gov.uk/consultations/downloadableDocs/7777-DCSF-Legislative%20Options.pdf

Children's Trusts: Statutory guidance on inter-agency cooperation to improve well-being of children, young people and their families http://www.dfes.gov.uk/consultations/downloadableDocs/Childrens%20Trust%20Statutory%20Guidance.pdf

Legislating for Sure Start Children Centres - Sept 2008 http://www.dfes.gov.uk/consultations/downloadableDocs/SSCC%20Consultation%20Final%208%20Sept%20(2).doc

Taking Back on Track forward Response to consultation and next steps - October 2008 http://www.dcsf.gov.uk/exclusions/uploads/BACK%20ON%20TRACK%20Next%20Steps%20231008%20final%20(3).pdf

Delivering the Children's Plan - Strengthening Children's Trusts: legislative options analysis of responses to the consultation document http://www.dfes.gov.uk/consultations/downloadableDocs/Children's%20Trusts%20legislative%20options%20results.doc

Statutory guidance for Children's Trusts on inter-agency cooperation to improve the well-being of children young people, and their families - analysis of responses to the consultation document http://www.dfes.gov.uk/consultations/downloadableDocs/Children's%20Trust%20consultation%20-%20results%20document.doc

Response to the consultation on Legislating for Sure Start Children's Centres

http://www.dfes.gov.uk/consultations/downloadableDocs/Sure%20Start%20Final%20version%20of%20the%20consutaion%20report%209%20Dec%202008.doc

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