Cities and Local Government Bill; Education and Adoption Bill; Immigration Bill - Delegated Powers and Regulatory Reform Committee Contents


From Lord Nash, Parliamentary Under Secretary of State for Schools at the Department for Education, to Baroness Fookes, Chairman to the Delegated Powers and Regulatory Reform Committee

I am grateful to the Delegated Powers and Regulatory Reform Committee for their report on the Education and Adoption Bill (10th Report of Session 2015-2016). Following the publication of this report and the conclusion of Committee stage of the Bill earlier this week, I wanted to explain how I intend to respond to reflections of both the Delegated Powers and Regulatory Reform Committee and other Peers on clause 1 on coasting schools and clause 13 on adoption.

Clause 1:

Clause 1 of the Bill introduces a power for the Secretary of State to define a "coasting" school in regulations. I appreciate that there has been concern about how the Government intends to define coasting and the level of detail that should be on the face of primary legislation or in regulations. As the Committee acknowledges in its report, the Government published illustrative regulations on 30th June setting out the detail of how we propose to define coasting. We also launched a consultation seeking views on how coasting should be defined on 21st October: that consultation is due to close on 18th December.

Following your recommendations and the debate in both Houses, I intend to make several amendments to the Bill before Report stage in the Lords.

In particular, I recognise that there has been some concern that clause 1 currently states that regulations to define coasting "may" be made, implying that a Government could theoretically not set out any further definition of coasting. The Government's intention is that detailed regulations will always be made and so to ensure there is no doubt about this I will therefore bring forward an amendment to state that regulations "must" be made.

Our intention has also always been that it should be transparent to a school whether they are coasting or not by looking at whether they meet the definition set out in regulations. With this in mind, we appreciate that it may be unintentionally misleading to suggest that the Secretary of State will notify a school when she "considers" it to be coasting and we will therefore amend the Bill to be clear that a school will be notified when "it is coasting" as per the definition set out in regulations.

Another amendment that we intend to bring forward is to allow the Secretary of State, through regulations, to disapply the coasting definition to certain types of schools. During previous debates, concern has been expressed that the proposed coasting definition could, for instance, apply to maintained nursery schools by virtue of the fact that the Bill applies to all types of maintained schools. Given the age range of these schools, we have been clear in our consultation that we do not intend to apply a coasting definition to these schools. We are also currently consulting on whether and how the coasting definition could apply to other types of schools, such as special schools or alternative provision. Having this power to disapply ensures that we can be clear to different settings when the definition will and will not apply to them.

Finally, having heard the views of both Houses, I have decided to amend the Bill to subject the coasting regulations to the affirmative procedure when they are first laid. As I have been clear, we do not intend to identify coasting schools until the end of 2016. Whilst I have already produced illustrative regulations and we are publicly consulting on our proposed definition, I appreciate the need to reassure both Houses that a debate will take place when we lay final regulations for the first time.

I continue to hold the view that, after this point, to require there to be a debate every time the regulations are amended-even when we have been clear that we anticipate minor and technical amendments will be needed at least twice a year-would appear an unnecessary demand of Parliamentary time. As Peers themselves have raised during Committee, the negative procedure still allows members of either House to call for a debate where they deem this to be necessary.

I appreciate that your Committee would like to see more detail in primary legislation on the criteria that will determine whether a school is coasting. At this point, the consultation on the proposed coasting definition continues to run and will close on 18th December. I am concerned that to place any criteria on the face of primary legislation at this stage could pre-empt the Government's consideration of and response to this consultation. I can reassure the Committee, however, that we will continue to consider whether it is appropriate to amend primary legislation following the conclusion of the consultation.

Clause 13:

In relation to the adoption clause, I would like to reassure you that these powers remain a backstop measure in our wider plan to regionalise adoption services. As I have set out previously, we are working with the sector to deliver regional adoption agencies that build on existing relationships and ways of partnership working and are created organically. We are providing £4.5m of funding this year to support early adopters of the programme. We are delighted by the response we have had already had from the sector. 140 of 152 local authorities applied to the programme and we have announced 19 projects so far covering over 100 local authorities. We therefore envisage that the vast majority of local authorities will make this move voluntarily.

This will mean that use of these powers will be rare. I recognise the comparison you have drawn with Section 3A of the 2002 Act, but do not think the stated intended use of these new powers is directly comparable. These powers would be used to direct only those local authorities that fail to engage appropriately voluntarily. As set out above, we expect this to be very few. It is therefore highly unlikely that we would ever need to use these powers to direct all local authorities, which was a possibility with the previous powers.

Where the powers are used, I would like to reassure you that this would only happen after extensive discussions with the agencies involved. As we have been clear, the Secretary of State would write to any local authority and/or other adoption agency seeking their views and requesting supporting evidence. This would ensure that all agencies would have the opportunity to move towards regionalisation voluntarily before the powers were used. The National Adoption Leadership Board-which includes representatives of local authorities and voluntary agencies-will also have an important role to play in shaping decisions and overseeing the development of the system. We therefore maintain our position that no Parliamentary procedure is required.

Finally, in relation to subsection (6), this is to help 'future-proof' the clause. At this time, we believe that the functions included in the clause are the relevant ones, but recognise that we may need to respond to changing services and circumstances in the future. This will allow us to respond to any intelligence we receive from the sector about the powers and ensure the powers cover the appropriate functions. We recognise that this power is broad and that is why we considered that it should be subject to the affirmative procedure.

23 November 2015

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