Tenth Report
Education and Adoption
Bill
1. This
Bill:
· creates
a new category of maintained school, known as "a coasting
school", which will be eligible for intervention under the
Education and Inspections Act 2006;
· makes
other changes to the statutory regime governing schools causing
concern (including requiring the Secretary of State to make an
Academy order in respect of certain kinds of school which are
eligible for intervention); and
· amends
the Adoption and Children Act 2002 to enable the Secretary of
State to direct one or more local authorities to make arrangements
for functions relating to adoption to be carried out on their
behalf by one or more of the authorities or one or more other
adoption agencies.
2. The Department for Education have provided
a memorandum explaining the delegated powers in the Bill. There
are three delegations which we wish to draw to the attention of
the House.
Clause 1 - Coasting schools
3. Part 4 of Education and Inspections Act 2006
("the 2006 Act") makes provision about maintained schools
which are eligible for intervention and the powers which the local
authority and the Secretary of State are able to exercise in respect
of such schools. Clause 1 of the Bill amends the 2006 Act to insert
a new section 60B which provides that a maintained school is eligible
for intervention if the governing body of the school have been
notified that the Secretary of State considers it to be "coasting".
Subsection (2) provides for the definition of "coasting"
to be contained in regulations subject to the negative procedure.
4. The effect of section 60B is to leave the
definition of "coasting" to be wholly set out in regulations,
without anything on the face of the primary legislation to limit
or condition the way in which the power may be exercised. We consider
such a wide and open-ended delegation to be inappropriate given
the fundamental importance of the definition to the operation
of the new section, and the significant powers which become exercisable
in relation to a school once it becomes eligible for intervention.
5. We also find unconvincing the Department's
explanation for putting the definition of "coasting"
in regulations. Their reasons are based on the practical difficulties
associated with setting out in primary legislation the data sets
and measures required to assess whether a school is a coasting
school. In our view, this explanation fails to distinguish between
two entirely different matters: the criteria and other factors
which should apply in determining whether or not a school is a
coasting school, and the detailed measures and data which are
to be used to decide whether or not those criteria or other factors
are met. The fact that the latter may be more appropriate for
regulations does not rule out including the former on the face
of the Bill.
6. The Government have made available to the
House draft regulations under section 60B(2). While they are helpful
in clarifying the Government's current intentions, they do not
affect the scope of the powers being conferred. Although the Department
say in their memorandum that they expect any changes to the regulations
to be minor and technical, there is nothing to prevent regulations
being made in the future which completely change the basis for
defining what constitutes a coasting school.
7. Accordingly, we consider leaving the definition
of "coasting" wholly to be defined in regulations to
be an inappropriate delegation of powers. Furthermore, even if
clause 1 is amended to place more detail on the face of the Bill,
we take view that the regulations should be subject to the affirmative
procedure.
Clause 13 - Power to give directions requiring
the establishment of joint adoption arrangements
8. Clause 13 inserts a new section 3ZA into the
Adoption and Children Act 2002 ("the 2002 Act"). The
new section confers power on the Secretary of State to give directions
to one or more local authorities in England requiring them to
make arrangements for certain adoption related functions to be
carried out on their behalf by one or more of those authorities,
or by one or more other adoption agencies.
9. Directions under the new section 3ZA are not
subject to any Parliamentary scrutiny. The Department explain
that, because the directions concern the way functions are carried
out, they are administrative rather than legislative in nature.
The Department also rely on the provision which section 3ZA is
replacing. Section 3A of the 2002 Act also allows the Secretary
of State to give directions to local authorities in England to
require them to make arrangements for adoption functions to be
carried out on their behalf by one or more other adoption agencies.
A direction under section 3A is not subject to parliamentary procedure
unless it applies to all local authorities.
10. Section 3A of the 2002 Act was inserted by
the Children and Families Act 2014, and we drew attention to it
when reporting on the Children and Families Bill.[1]
We took the view that the powers being conferred were legislative
in character because they allowed the Secretary of State to impose
a legal requirement on local authorities to transfer the exercise
of their functions in relation to the recruitment and approval
of adopters. In the light of this and the importance of the functions
concerned (and the fact that a direction could apply to a description
of local authorities or even to all local authorities), we concluded
that the exercise of the powers should be subject to Parliamentary
scrutiny where the direction applied to more than one local authority.
We have reached the same view about the new section 3ZA. We do
not accept the Department's description of the powers as being
administrative in character rather than legislative. The powers
conferred by section 3ZA are no less significant than those conferred
by section 3A, if anything they are more extensive because a direction
under section 3ZA will be capable of applying to a broader range
of functions than a direction under section 3A. It remains
our view that the exercise of powers of the kind conferred by
section 3ZA should be subject to parliamentary scrutiny. We consider
that the negative procedure would be appropriate in this case.
11. New section 3ZA includes a further delegated
power. Subsection (6) enables the Secretary of State by regulations
to amend subsection (3) which lists the local authority functions
which can be the subject of a direction under section 3ZA. On
the face of it this would allow a complete re-writing of the local
authority functions to which a direction under section 3ZA is
capable of applying. The memorandum does not explain why, in the
context of what is described as a back-stop power to give directions,
it is considered necessary or appropriate to have such a broad
power to amend the functions to which a direction can apply. Accordingly
the House may wish to seek a fuller explanation from the Minister
as to why such a broad Henry VIII power is required.
Access to Palliative Care
Bill [HL]
12. There is nothing in this Bill which we wish
to draw to the attention of the House.
Advertising of Prostitution
(Prohibition) Bill [HL]
13. This Private Member's Bill had its Second
Reading on 23 October. Its purpose is to prohibit the advertising
of prostitution.
Clause 2 - Regulations about criminal penalties
14. Clause 1 of the Bill creates a new criminal
offence in connection with the publication or distribution of
advertisements for premises or services of a kind specified in
subsection (1). Clause 2 provides for the Secretary of State to
specify in regulations the level of fine for which someone is
to be liable on conviction (whether summarily or on indictment)
of an offence under clause 1.
15. On its face, this power would enable only
a single amount to be specified (although possibly one amount
could be specified for summary conviction and another for conviction
on indictment). That would, however, leave no room for judicial
discretion to impose a fine of an amount that is appropriate according
to the facts of the case.
16. It is also unclear to us how it is envisaged
the power would be exercised in the light of section 85 of the
Legal Aid, Sentencing and Punishment of Offenders Act 2012, which
provides for the removal of limits on certain fines on conviction
by magistrates' courts.
17. In view of these considerations, we find
that the power is inappropriate in its present form.
Clause 6 - Commencement
18. Clause 6(2) enables the Secretary of State
to bring sections 1 to 5 into force on a day appointed by statutory
instrument, but does not say which form of statutory instrument
is to be used. We recommend that clause 6(2) should specify
either that the power is to be exercisable by order, or that it
is to be exercisable by regulations. The order or regulations
should be made by statutory instrument.
Arbitration and Mediation
Services (Equality) Bill [HL]
19. This Private Member's Bill had its Second
Reading on 23 October. Its purpose is to apply certain aspects
of equality legislation to, and to make other provision about,
arbitration and mediation services; and to provide further for
the protection of victims of domestic abuse.
20. Clause 7(2) enables the Secretary of State
to bring clauses 1 to 6 into force on a day appointed by order.
We recommend that the order should be made by statutory instrument.
21. There is no other aspect of the Bill that
we wish to draw to the attention of the House.
Council Tax Valuation
Bands Bill [HL]
22. This Private Member's Bill had its Second
Reading on 11 September. Its purpose is-
· to
update council tax valuation bands;
· to provide
a greater rate of progression in rates of council tax;
· to avoid
the need for revaluation; and
· to ensure
that valuations are based on actual prices paid for dwellings.[2]
Clause 1 - Regulations about council tax valuation
bands
23. Clause 1(1) requires the Secretary of State
to make regulations establishing "a new set of council tax
valuation bands as specified in subsection (4)" to apply
to all dwellings bought or sold after 1 April 2000. Subsection
(3) envisages that those regulations might include provision about
the amounts of council tax payable in respect of dwellings in
the same area, by reference to the proportions set out in that
subsection.
24. Given that the new proportions and bands
are set out in subsections (3) and (4), we are unsure why clause
1 requires the Secretary of State to set them out again in regulations.
It is also unclear how these regulation-making obligations are
intended to work alongside the existing power in section 5 of
the Local Government Finance Act 1992 ("the 1992 Act")
to alter the existing valuation bands and proportions by order.
25. It therefore appears to us that the delegations
in clause 1 may be unnecessary, and accordingly inappropriate.
We recommend that any power to make regulations that may survive
in clause 1 ought to be exercisable by statutory instrument and
should be subject to a Parliamentary procedure. We note that orders
under section 5 of the 1992 Act require affirmative approval from
the House of Commons alone, and we consider that the same should
apply here.
Property Boundaries (Resolution
of Disputes) Bill [HL]
26. This Private Member's Bill had its Second
Reading on 11 September. Its purpose is to provide a process for
resolving disputes about boundaries and private rights of way,
by means of an award made by one or more surveyors appointed or
selected under clause 5.
Clause 8(1) - Regulations about code of practice
27. Clause 8(1) requires the Secretary of State
to approve, by regulations, a code of practice to specify-
· best
practice in the preparation of plans and other documents specified
in the Bill, and
· the
form and manner in which notice under clause 3(2) (about boundaries
and private rights of way) is to be served.
28. It appears from clause 6(1) that the code
may also affect the service of other documents under the Bill.
Clause 8(4) makes compliance with the code mandatory for parties
to disputes.
29. It is not clear from clause 8(1) who is to
be responsible for preparing and issuing the code. We infer that
it may be the Secretary of State, as subsection (2) enables him
to amend it. If we are right that he is to be responsible for
preparing the code, then clearly it is inappropriate for him to
have the power to approve it.
30. However, we take the view that there ought
to be some Parliamentary scrutiny in relation to the code. We
further recommend therefore that the Bill should require
that the code, and any amendment of it, should be laid before
Parliament; and
· either
the code (and any amendment) should itself be subject to a scrutiny
procedure;
· or
the code (and any amendment) should be brought into force by a
statutory instrument which should be subject to a scrutiny procedure.
In our judgment, a draft negative procedure would
be adequate in either case.
Clause 13 - Power to supplement definition of
"surveyor"
31. Clause 5 provides for the parties to a dispute
either -
· to
concur in the appointment of a surveyor, or
· to each
appoint a surveyor (who must then appoint a third surveyor).
32. The surveyor or surveyors will make an award
determining the dispute (subsections (10)-(15)). So the surveyors
will, in the case of proceedings stayed by virtue of clause 2,
in effect replace the judge who would otherwise have determined
the issue. The award is susceptible to appeal (subsection (16)).
33. A "surveyor" is defined in clause
13, and paragraphs (a) to (c) of the definition specify three
categories of professional person who may be a "surveyor"
for the purposes of the Bill; but paragraph (d) enables other
qualifications to be specified in negative procedure regulations.
The Bill does not specify who is to make the regulations, and
clearly it should do so.
Clause 15(2) - Power to appoint day for coming
into force
34. Clause 15(2) enables the Secretary of State
to bring clauses 1 to 14 into force on a day appointed by regulations.
We recommend that the regulations should be made by statutory
instrument.
Succession to Peerages
Bill [HL]
35. There is nothing in this Bill which we wish
to draw to the attention of the House.
1 7th Report, Session 2013-14, HL Paper 49. Back
2
As presently drafted, the Bill would apply to England and Wales
and Scotland, but the Member promoting the Bill has intimated
that he will move an amendment so that the Bill will apply only
to dwellings in England; and we have approached it as if it did.
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