INTRODUCTION

1.  The Education Bill as brought from the House of Commons on the 7th February 2002, following amendment in the House of Commons, has 210 clauses and 22 schedules. This Memorandum identifies provisions for delegated legislation, explains their purpose and their proposed use. It also sets out a rationale in each case for the selected form of Parliamentary control of delegated legislation.

MAIN PROVISIONS

2.  The Bill seeks to raise standards in schools by promoting innovation and partnership and creating a more flexible deregulated framework in which schools can operate. It implements policy commitments made in the White Paper "Schools - achieving success" (Cm 5230) published on 5 September 2001, in five related consultation papers published on the same day ("The Way Forward - a Modernised Framework for School Governance", "Consultation on School Admissions", "Consultation on Exclusion Appeals Panels", "Changes to the Registration and Monitoring of Independent Schools", "Better beginnings - Improving Quality and Increasing Provision in Early Years Education and Childcare") and in a consultation paper issued on 21 September ("16-19 Organisation and Inspection: a Consultation Document"). Implementation in Wales will be guided by the principles set out in the National Assembly for Wales' consultation document "The Learning Country" ("Y wlad sy'n Dysgu"), published on 5 September 2001.

3.  In summary, Part 1 will:

introduce a new power for the Secretary of State, or the National Assembly for Wales, to respond to an application by a qualifying body by issuing an order suspending or modifying legislation for a period of up to 3 years. The power is intended to enable innovative pilot projects to take place and may by order be extended in time, provided that in total no such project lasts for more than 6 years.

allow greater autonomy for governing bodies of qualifying schools over certain elements of teachers' pay and conditions and the national curriculum, which will be subject to application to the Secretary of State, or the National Assembly for Wales.

enable schools to become a member of a company for the purposes of providing services or exercising functions of an LEA, where the LEA chooses to contract them out pursuant to an order under the Deregulation and Contracting Out Act 1994. It will enable the Secretary of State to form or participate in forming companies to provide or make arrangements for the provision of services to schools.

4.  Part 2 will:

make new arrangements enabling the Secretary of State, or the National Assembly for Wales, to give financial assistance for education and childcare by repealing many of the existing powers and replacing them with a single broad power to fund education, childcare and related activities (excluding higher education).

5.  Part 3 will:

provide that every maintained school shall have a governing body responsible for the conduct of the school with, in accordance with the regulations, an established membership and instrument of government. Regulations will set out the roles and responsibilities of LEAs, governing bodies and head teachers. The Part will introduce measures to enable more than one school to federate under a single governing body provided that they comply with prescribed procedures and conditions. In addition, the Secretary of State, or the National Assembly for Wales, may make regulations providing for governing bodies to discharge functions jointly either through whole governing bodies or through joint committees.

enable governing bodies to provide community facilities or services for the benefit of their pupils, their pupils' families and the wider community. It will also provide for limits to be exercised on those powers. The Part also makes provisions concerning the control and occupation of school premises; and introduces measures requiring governors to produce an annual report; hold an annual parents' meeting; and establish complaints procedures. It also provides for the staffing of maintained schools, repealing current arrangements and empowering the Secretary of State, or the National Assembly for Wales, to regulate in respect of the appointment, discipline, suspension and dismissal of staff. The Part further provides that maintained nursery schools shall have a governing body.

introduce components of a new system for funding LEAs and schools. It introduces new definitions of the 'LEA budget' for central functions and the 'schools budget' for expenditure on pupils. It requires LEAs to establish a schools forum in accordance with regulations, to represent the views of schools with respect to the funding of schools in the area. It also provides a power for the Secretary of State, or the National Assembly for Wales, to set a minimum level for the schools budget.

provide that the governing body of a maintained school may be required to keep prescribed accounts and records, prepare prescribed financial statements, comply with prescribed audit conditions and to send copies of accounts and financial statements to the Secretary of State or National Assembly for Wales.

make a number of amendments to the provisions for admission to maintained schools. It requires LEAs to establish an admission forum to advise on local admissions issues and repeals the requirement for schools to have a standard number. It provides for the Secretary of State, or the National Assembly for Wales, to make regulations requiring LEAs to take action to secure an agreement between admission authorities in the area for co-ordinating admission arrangements. It will introduce a power to make regulations with respect to admission appeals.

provide for the exclusion of a pupil from a maintained school, and for regulations to be made in relation to such exclusions, including the procedures to be followed, the arrangements for review of exclusions and appeals against decisions not to reinstate the pupil and adding pupil referral units (PRU) and nursery schools. Provision will also be made for the Secretary of State, or the National Assembly for Wales, to require governing bodies to set school-level targets for authorised as well as unauthorised absence.

6.  Part 4 will:

extend the powers through which the Secretary of State, or National Assembly for Wales, and LEAs may intervene in schools with serious weaknesses or requiring special measures. It will introduce a new power to appoint an interim executive board (IEB); and a power for the Secretary of State or National Assembly for Wales to involve an external partner in turning round a school in special measures or having serious weaknesses. It will clarify and extend the powers of the Secretary of State, or National Assembly for Wales, to intervene in weak LEAs.

7.  Part 5 will:

make provision about the setting up of new schools and the alteration and discontinuance of existing schools. It will provide for the amendment of current legislation relating to city academies and city colleges, and make provision about how schools, chiefly maintained schools, can be established, altered or discontinued. It will change who can make proposals for alterations and in the procedures for dealing with proposals.

8.  Parts 6 and 7 will:

make provision for a National Curriculum in England, replacing sections 350 to 357 and 362 to 367 of the Education Act 1996 in England. It also re-enacts sections 351 and 352 but with amendments to reflect the incorporation of the foundation stage within the National Curriculum in England.

provide for the areas of learning within the Foundation Stage. It also separates the first, second and third key stages in England from the fourth key stage and sets out that the National Curriculum shall comprise the attainment targets, programmes of study and assessment arrangements in relation to each key stage. It provides that in relation to the fourth key stage, the Secretary of State may amend the subjects or abolish the Key Stage by order, and re-enacts the special cases provisions of the Education Act 1996.

separate out the National Curriculum for Wales from that for England, with similar provisions except that it provides for the period and content of the foundation stage to be set out in an order of the National Assembly for Wales and includes the Welsh language in the curriculum.

9.  Part 8 will:

make provision for teachers' pay and conditions, appraisal, qualifications and provision about misconduct. It repeals the School Teachers' Pay and Conditions Act 1991 (STPCA) and replaces its provisions with a modernised framework, but continuing with the main outlines of the existing machinery. It replaces existing requirements for appraisal. It provides for teacher and headteacher qualifications in schools and lecturer and principal qualifications in further education (FE) colleges. It makes additional provision about the General Teaching Councils

10.  Part 9 will:

make provision about the role of LEAs in childcare and nursery education and amend the inspection and registration regimes for childminding and day care and nursery education.

11.  Part 10 will:

introduce a new regulatory regime, under which independent schools will have to comply with prescribed standards before registration and at all times afterwards. It will introduce some new provisions concerning children with special educational needs (SEN) at independent schools.

12.  Part 11 includes all miscellaneous and general provisions and will:

extend the definition of 'secondary education' in the EA 96 to include certain forms of training and makes provision about allowances relating to education or training for persons over 16 and inspections.

enable the Secretary of State to repay the student loans of teachers.

make minor amendments to the law regarding Education Action Zones (EAZs), including an extension to the range of schools eligible to participate and a broadening of the objects of the Zones.

broaden the duties of inspectors to report on the management and leadership of schools and a power to enable a member of the Inspectorate to carry out inspections currently only deliverable by a registered inspector.

extend the powers of the Qualifications and Curriculum Authority (QCA) and the Qualifications, Curriculum and Assessment Authority for Wales (ACCAC) and clarify the powers of LEAs to award qualifications.

enable regional provision to be made in Wales in respect of children with SEN and introduce a SEN Tribunal for Wales.

give powers to the National Assembly for Wales to require publication of certain information by schools and LEAs, and to make regulations requiring LEAs in Wales to enter into partnership agreements with schools maintained by them. Provision is also made for the National Assembly for Wales to require the governing bodies of primary and secondary schools to draw up plans together to facilitate the transition of pupils from one to the other.

ensure that LEAs develop, publish and implement policies for transport for persons over compulsory school age. Changes are made to the provisions concerning school meals and milk, to ensure that children not yet of school age receiving funded nursery education may be eligible for free school meals and milk and that regulations can restrict entitlement to free school meals to children in attendance over the lunch period.

make it an offence to create or permit nuisance or disturbance on the premises of a non-maintained special school, an independent school or certain LEA-maintained facilities.

end the role of the Secretary of State in settling recoupment disputes (although it is retained for the National Assembly for Wales). A power is introduced for the Secretary of State to make payment to the Chairs of local LSCs.

make provision for supplementary matters such as commencement orders and minor amendments and repeals.

TERRITORIAL COVERAGE

13.  The Bill relates to England and Wales only, except for sections 182 and Schedule 17, which amend provisions in the Education Act 1997 extending to Northern Ireland as well as England and Wales. Four of the clauses (118, 121, 124 and 179) give the Secretary of State a power to make regulations in relation to England and Wales. Clause 138 confers power on the Secretary of State in relation to England, and concurrently on the Secretary of State and the National Assembly in relation to Wales. Clauses 184 to 191 relate to Wales only, so that all regulation-making powers within those clauses are exercisable by the National Assembly for Wales only, and do not have a corresponding provision for the Secretary of State in England. In relation to the curriculum, there are separate Parts of the Bill and powers relating to each country, exercised by the Secretary of State in the English clauses and the National Assembly for Wales in the Welsh clauses. The remainder of the delegated powers in the Bill give power to the Secretary of State in relation to England. The National Assembly for Wales is given the equivalent power in Wales except where the provisions are to apply in England only (clauses 66 and 69). The new powers reflect the devolution settlement, in that matters relating to teachers' pay and conditions and student loans are not devolved, but all other relevant education functions are. The Bill does not seek to change the devolution settlement in any substantive way. There is a single very minor adjustment in clause 201, where the delegated power under section 494 of the Education Act 1996 (recoupment: excluded pupils) transfers to the National Assembly.

RATIONALE AND OVERVIEW OF DELEGATED POWERS

14.  The Bill contains powers to make delegated legislation or amend existing delegated legislation. In considering whether matters should be specified on the face of the Bill or left to delegated legislation the Department has taken account of the need to ensure that:

(a)  the overall legislative framework and the substantive policy provisions are presented clearly on the face of the Bill;

(a)  the provisions of the Bill contain sufficient flexibility to enable effective implementation of policy and to respond to changing circumstances and the needs of the education service; and

(b)  detailed technical and administrative arrangements are not unnecessarily set out in primary legislation. It is the Government's intention to reduce the extent to which legislation prescribes processes in detail. Where there is a need for administrative and technical details to be spelt out in legislation (for example, for reasons of equity, or to protect individual rights), use of secondary legislation ensures appropriate flexibility and additional opportunities to consult on matters of detail and ensures that the key powers and duties in primary legislation are not unduly obscured by this detail.

15.  The Bill refers at various points to, or provides for, the issuing of guidance by the Secretary of State or the National Assembly for Wales, which must be taken into account by governing bodies and LEAs in exercising various functions referred to in the Bill. This approach is designed to ensure that lists of general principles and factors may be set out that individual bodies should decide how best to apply in their own circumstances.

PARLIAMENTARY SCRUTINY

16.  In general, regulations and orders will be made by statutory instrument. The exceptions are clauses 160 and 185 and paragraphs 3(6) and 5 of Schedule 1 where an order may be made, but not by statutory instrument. Orders under clause 160 (failure to meet standards identified which arise from an inspection of a registered independent school) will apply to just one school, and there is therefore no need for the public record provided by an SI. This reflects the position under section 471 of the Education Act 1996. Paragraphs 3(6) and 5 of Schedule 1 simply restates the position currently to be found in Schedule 10, and section 138(2)(b) of the School Standards and Framework Act 1998.

17.  Regulations and orders made by the National Assembly for Wales will be subject to the National Assembly's own procedures as provided for in its standing orders under the Government of Wales Act 1998. The National Assembly's power in clause 185 in respect of regional special educational provision will be exercisable by order not made by statutory instrument, because each order will relate only to named schools or authorities.

18.  It is the Government's intention that the remainder of the delegated powers in this Bill should be exercised by means of Statutory Instruments. In the clear majority of cases, these are to be subject to the negative resolution procedure. There are four circumstances where no Parliamentary procedure is required: commencement orders under clause 209, in line with normal practice; orders under clause 124(2) giving exemptions from pay and conditions to teachers in named schools in Education Action Zones, in line with the existing provisions in section 3 of the Teachers' Pay and Conditions Act 1991; on the same basis as this provision, orders giving exemption in relation to school performance under clause 6(2), where the intention is to create an automatic and non-bureaucratic means for schools to earn greater autonomy; and orders under 83(2)(c) and under 83(3)(c) relating to assessment arrangements in respect of all stages of the National Curriculum, in line with existing provisions in section 356 of the Education Act 1996 in respect of the four key stages.

19.  In a few cases, orders may be used to make substantive change to primary legislation, and in these cases, orders will be subject to the affirmative resolution procedure. The cases are: orders under clauses 76(3); 78(4)(b); 80(6); and 82 which relate to amending elements of the National Curriculum; and 121(4), which enables an order to change the definition of a subsidiary matter which does not require reference to the School Teachers' Review Body.

20.  The Government has considered on a case-by-case basis which would be the appropriate procedure to be followed in making orders and regulations. The general reliance on the negative resolution procedure reflects our view in each case that the relevant matters are of administrative or procedural detail. In many cases, the approach taken also follows the precedents for Parliamentary scrutiny adopted in education legislation that is being re-enacted or in analogous education legislation.

21.  It is the Government's intention to provide as much information to Parliament as possible on the details of its plans to make regulations under the powers set out in the Bill. During the passage of the Bill through the Standing Committee of the House of Commons, the Government therefore produced a number of policy statements, outlining its plans. These statements related to clauses 6, 11, 18, 20, 22, 23, 24, 26, 28 to 36, 39, 41, 42, 44, 46, 47, 49, 56, 66, 68, 71 to 92, 128 to 135, 138, 139, 144, 153, 164, 175 and 180.

22.  We hope that it might be useful to the Committee to see these statements and they are therefore attached at Annex A.

23.  It is the Government's intention to consult widely before making new regulations under the provisions in this Bill.

PART ONE: PROVISION FOR NEW LEGAL FRAMEWORKS

Chapter One: Powers to Facilitate Innovation

24.  The purpose of Chapter 1 is to facilitate the implementation of innovative projects to raise educational standards. The intention is that where a school or local education authority (LEA) wishes to pilot an innovative scheme to improve standards, but is prevented from doing so by a statutory provision, that body should be able to apply to the Secretary of State (or National Assembly for Wales in relation to Wales) for exemption from that statutory requirement for a pilot period.

25.  The Government is keen to promote innovation in the school system, and wishes to be able to support schools that come forward with good ideas for raising standards which could not be implemented under existing rules. The Government recognises that very often schools and local education authorities are best placed to develop ideas, and wishes to help them to test these ideas and bring them into practice. Often in the past, ideas that have fallen outside the then existing legislative framework (for example, making use of the facilities of Further Education Colleges to benefit young people aged 14-16) have been developed and implemented in the wider service only after the passage of a long period of time.

26.  The power in Chapter 1 of Part 1 is intended to enable the Government to be much more responsive to new ideas to raise standards. In addition, unusual local circumstances can mean that an otherwise sound legislative framework is a barrier to progress. The power in Chapter 1 is intended to help schools and LEAs to tackle such circumstances. At the same time, the Government recognises that it is essential that there is no doubt about what the law requires in relation to an individual school or LEA.

27.  Clause 2 provides that the Secretary of State may by order confer exemption from education legislation on any applicant school or LEA for a period of up to three years. The Secretary of State may also relax legislation, enable the applicant to exercise a function conferred by education legislation on another qualifying body and make consequential modifications. Before making an order the Secretary of State should consult the Chief Inspector, if she considers it appropriate. An order may not be made more than 4 years after the date on which the section comes into force.

28.  The purpose of the order-making power is to ensure that the Secretary of State can respond appropriately to new ideas brought forward by schools, so that pilot projects can go ahead. At the same time, the orders will be made by SI, to ensure that no-one is left in any doubt as to the law's requirements. The Government believes that evidence gathered through evaluation of the effectiveness of pilot projects will be helpful in determining where further legislative reform and deregulation may be justified. In the longer term, this may have a very significant impact on standards of achievement amongst children and young people.

29.  There may be significant numbers of requests for variation, the process for which must be as simple and unbureaucratic as possible in order for schools to feel it a worthwhile exercise. In most cases, we would anticipate that schools and LEAs would seek minor variations in order to let more significant pilot projects go ahead. Such orders will of necessity reflect local circumstances and local solutions. One example might be a proposal for a school to move towards a 'continental' school day, which would require some variation of the requirements for morning and afternoon registration. Another might be a school wishing to make use of a small amount of its budget share for community purposes, if the circumstances were such that a community scheme could have a very significant impact on standards in the school. Accordingly, the order would be subject to negative resolution.

30.  Clause 3 enables the Secretary of State to amend an order made under clause 2(1) to extend the functions of the order, the qualifying bodies to which it applies, or the period of the order, following an application by a qualifying body. An extension of the order can only be made once and for a maximum period of three years. This ensures both that a pilot involving variation in the law cannot be made permanent without primary legislation or the use of a Regulatory Reform Order, and that it can be continued for a total of up to six years where it is successful and there is no opportunity within the first 3 years to legislate. The Secretary of State may also revoke an order without application from a qualifying body. This provision is intended to ensure that if monitoring of a pilot project reveals serious problems, the pilot can be ended quickly. An order made by virtue of this clause extending or revoking a previous order would not be subject to the restriction in 2(6) that orders must be made within 4 years of commencement.

Chapter 2: Exemptions Related to School Performance

31.  The purpose of Chapter 2 is to enable the most successful schools to earn greater autonomy over the curriculum and over teachers' pay and conditions. This is intended to help to meet the Government's objective that the best schools should increasingly be the ones to lead educational reform. Schools meeting criteria set out in regulations will qualify for autonomies set out in regulations. Certain of these autonomies may be available to schools as of right; others may be discretionary. It is the Government's intention, however, that the clear majority of autonomies would be made available as of right, so that the process of obtaining autonomies for qualifying schools would be essentially automatic.

32.  Clause 5 enables the Secretary of State to set out in regulations the criteria which schools must meet in order to qualify. The criteria in regulations will relate to the performance of the school and the quality of its leadership. They will be very likely to evolve over time (perhaps each year), to reflect the changing performance of the system as a whole. In addition, the Government has said that when value-added indicators of performance are available for all schools, these will be included in the criteria. The Secretary of State will need to set out detailed and separate criteria for primary, secondary and special schools; and these will need to be broken down further so that the performance of a school is assessed relative to other schools with a similar intake. The delegated power in general will allow appropriate flexibility, given the likelihood that criteria will evolve over time, and ensure that a high level of detail can be set out in the most appropriate way.

33.  Whilst it is hoped that sufficient objective criteria can be laid down in regulations to ensure that the most appropriate schools can qualify, it may be that because of the length of the cycle of inspections it will be necessary to include an element of judgment for the Secretary of State as to qualification. For example, an inspection judgement about the quality of leadership in a school may be outdated if the senior management team of the school has changed in the intervening period. For this reason the power in 5(2) is proposed to be taken, allowing criteria to make reference to the opinion of the Secretary of State.

34.  Clause 6(1) provides the Secretary of State with a regulation-making power to set out which curriculum provisions and which pay and conditions provisions attract exemption, and which of these do so as of right and which on a discretionary basis. The National Assembly for Wales is unable to make regulations relating to pay and conditions without the consent of the Secretary of State, as this is not a devolved function. It is expected that the range of exemptions available may be adjusted over time on the basis of experience of operation of the provisions. The aim will be to ensure that the range of exemptions available maximises the impact of these measures on pupil performance. The regulation-making power will ensure that there is appropriate flexibility to make such adjustments, and enable full consultation to take place on the contents of the regulations.

35.  A description of the Government's proposals for the criteria and areas of exemption for earned autonomy is set out as the first part of the document attached as Annex A, containing policy statements sent to House of Commons Standing Committee G during Committee Stage there.

36.  Clause 6(2) enables the Secretary of State on the application of the governing body of a qualifying school to make an order providing that any curriculum or pay and conditions provisions attracting exemption under 6(1) are not to apply or are to apply with modifications as appropriate. There is also a power to revoke by order any orders previously made under this section, on the application of a governing body. Clause 6(3) means that where the provision is one that attracts exemption as of right under 6(1), the Secretary of State is under a duty to make the order. These order making provisions are necessary to ensure that there is no doubt as to the law in relation to the qualifying school, and to give effect to any decision by the Secretary of State in relation to discretionary exemptions.

37.  It is envisaged that perhaps 10% of schools might initially earn exemptions under these provisions, so that there may be significant numbers of orders. While based on a common format, these will necessarily be bespoke for each qualifying school. Given this, and the precedent in section 12 of the School Standards and Framework Act 1998 (which substituted a new section 3 of the School Teachers' Pay and Conditions Act 1991) in relation to similar exemptions for schools in Education Action Zones we propose no parliamentary procedure for these orders. It is appropriate that the orders are made by statutory instrument in order to ensure that there is a public record of the law as applying to any particular school at any particular time. Parliamentary scrutiny of the school qualifying criteria and exemptions available, in the regulations made under 5(1) and 6(1) is appropriate. Most of the orders made under 6(2) for individual schools will then be automatic on the school achieving the specified, criteria which is why no parliamentary procedure is proposed.

38.  Clause 8 enables the Secretary of State to revoke an order made under 6(2), where the school has ceased to be a qualifying school since the making of the original order. This is necessary to ensure that any problems detected in monitoring the impact of these provisions can be addressed quickly.

39.  Clause 9 provides the Secretary of State with a power to make regulations regarding the application of section 118(2) to determine teachers' pay and conditions where an order under section 6(2) is revoked or the exemption conferred by it is restricted. This is necessary to ensure that where a teacher is benefiting from non-standard terms and conditions as a result of working at a school which has earned greater autonomy, appropriate transitional arrangements can be put in place where the exemptions are removed, so that the teacher does not suffer unfair loss.

Chapter 3: Powers to Form Companies etc

40.  Clause 11 enables the Secretary of State to make regulations setting out requirements with respect to the constitution and operation of schools companies. Regulations may require that companies be registered under the Companies Act 1985 as companies limited by guarantee. Regulations may also set out arrangements for an LEA to act as a supervising authority for a company. These delegated powers ensure that there is appropriate flexibility in the operation of schools companies, and ensure that the regulatory framework can be adjusted in the light of experience of this new provision. Clause 11(7) enables the Secretary of State to make regulations setting out the basis on which an LEA could refuse consent for the formation of school companies. This will enable the criteria to evolve over time, in the light of experience about the operation of the power to ensure that the interests of children in schools are protected at all times. The Regulations are likely to contain an amount of technical procedural detail which would not be appropriate on the face of the Bill.

41.  The policy statement relating to powers to form companies and sent to House of Commons Standing Committee G during that Committee's consideration of the Bill is attached as the second part of Annex A.

PART 3: MAINTAINED SCHOOLS

Chapter 1: Government of Maintained Schools

42.  In this chapter, the Government is seeking to reduce the level of detailed prescription on governing bodies in primary legislation and to ensure that governing bodies are subject to fewer detailed statutory constraints, which may limit their ability to establish arrangements which best suit their circumstances. The provisions in the Bill are part of a wider package of reform intended to tackle concern about governors' workload, help them to focus on their key strategic role in raising standards and reduce the extent to which procedural and operational matters are regulated.

43.  As part of this, the Government proposes to reduce the amount of detailed prescription, particularly in relation to process, that is set out in primary legislation. In so far as it is necessary to regulate process the Government intends to do so through secondary legislation, which may be adapted to the changing circumstances and challenges that governing bodies face. Governance is an area where a number of different interest groups are represented and where consultation is key. Moving some of the requirements from primary to secondary legislation gives the government more flexibility in initiating and responding to consultation. It is also the intention that regulations made under the powers in this Bill would significantly reduce the extent to which legislation prescribes matters such as the size of governing bodies, and the detail of the procedures that they must follow.

44.  The detailed policy statement attached as the third part of Annex A sets out the Government's proposals for the use of the powers in this chapter.

45.  Regulations under clause 18 may make provision for the constitution of governing bodies and in relation to procedural matters. Members of governing bodies must fall into the categories set out in 18(2) and each category must be represented. This reflects the current settlement between the different stakeholders involved in the different types of school. The intention is that within that framework, regulations will allow schools more flexibility to determine aspects of their governance arrangements for themselves, within a defined range of possibilities.

46.  Over time, a number of changes have been made in relation to the composition of governing bodies. This delegated power enables future detailed changes to be made more straightforwardly. The power also re-enacts the current delegated power in Schedule 11 of the School Standards and Framework Act to make detailed provisions relating to membership and proceedings in secondary legislation, so that any change to any procedural requirements that proves necessary in the light of experience can more easily be effected.

47.  Regulations under clause 19 will make provision for the making of instruments of government for governing bodies, including the matters to be dealt with in such instruments, the form of such instruments and the review and variation of such instruments. These detailed procedural matters are best dealt with in secondary legislation, and take large amount of procedural and technical information from the face of the Bill. Minor changes to the provisions may need to be made from time to time, and this is best accomplished through including these matters in regulations.

48.  Clause 20 provides that regulations may make provision setting out the terms of reference for governing bodies of maintained schools; defining the roles and responsibilities in relation to the conduct of the school of the LEA, governing body and head teachers; and conferring functions on GB's and head teachers'. This provision replaces and extends section 38 of the School Standards and Framework Act, which are repealed as part of the wider revision of governance legislation. As in the existing legislation, regulations provide the appropriate degree of flexibility for these provisions, and as now will be made subject to negative resolution.

49.  Regulations under clause 22 may make provision for the appointment of a clerk to the governing body of a maintained school, authorising or requiring the appointment of clerks to committees of the governing body, prescribing the body by whom such appointment has to be made, procedure to be followed in respect of dismissal and to appoint a clerk as proxy where the clerk fails to attend. This provision replaces without amendment provisions currently in Schedule 11 of the School Standards and Framework Act, and as now, regulations provide the appropriate level of flexibility for dealing with these matters. They will be made as now through the negative resolution procedure.

50.  Clause 23 provides that regulations may set out the details of the formation and dissolution of a federation. Federations are formed when governing bodies of different schools choose to dissolve and to form a single, joint governing body. A number of detailed provisions will be required as to the procedure to be followed when such a joint governing body is to be formed and when such federations dissolve. This level of detail is best set out in secondary legislation, which will also allow technical adjustments to be made.

51.  Clause 24 enables regulations to be made modifying any provision contained in Chapter 4 of Part I, sections 49 to 51 and Schedule 15 of the School Standards and Framework Act 1998, in the application of the provision to federated schools or their governing bodies. This will ensure that the provisions in relation to schools causing concern and in relation to financial delegation operate sensibly with respect to federated schools. Regulations may also provide for the modification of requirements relating to the composition of school governing bodies if cross-category federations are allowed, thus ensuring that the governing bodies of federations are not subject to contradictory requirements as to their composition. The very detailed technical changes required here are best accomplished through regulations, which may also need technical amendment over time in light of experience of their operation. Although the modification of primary legislation may be required, the changes will be of such a technical nature as not to warrant debate and the affirmative procedure.

52.  Clause 26 provides that regulations may be made placing limits on powers to provide community facilities. This would be necessary if it became apparent that other safeguards to ensure that the powers to provide community facilities was not misused had been unsuccessful. Regulations may make provision preventing governing bodies from doing anything which is specified in regulations. The regulation-making power provides a useful backstop, should unforeseen problems arise, but may never be exercised so is more appropriate for secondary legislation.

53.  Under clause 28, regulations may impose requirements on governing bodies of a maintained school to give copies of a governor's annual report to such persons as are prescribed and make such copies available for inspection at the school. Regulations under this clause may also make provision for enabling the governing body to determine the language to be used in the governors' report and the form in which it is to be produced, and requiring the GB to comply with any direction of the LEA in respect of additional language or additional form to be used. Clause 28(1) and (2) almost exactly re-enact section 42 of School Standards and Framework Act. As under present legislation, the delegated power ensures that requirements can be updated where necessary.

54.   Regulations under clause 28(3) may also require governing bodies and head teachers to provide reports to the LEA in connection with the discharge of their respective functions. This provides helpful flexibility, so that where there is any alteration to the duties of head teachers, governing bodies or LEAs, the requirements to provide information can also be updated.

55.  Clause 29 provides that regulations may enable two or more governing bodies to discharge functions jointly or by a joint committee and may provide for the appointment of a joint committee. Regulations may be used to make modifications to legislation so that this power can work successfully. The very detailed technical modifications required here are best accomplished through regulations.

56.  Regulations under clause 30 may make provision relating to the control by the governing body of a maintained school of the occupation and use of school premises. This power replaces the very detailed provisions set out in Schedule 13 of the School Standards and Framework Act. Some technical adjustments to the existing provisions are required and there will be some simplification. Nonetheless, such detailed provisions are best set out in secondary legislation, where technical adjustments can more easily be made.

57.  Clause 31 re-enacts section 41 of the School Standards and Framework Act exactly. It provides a power to regulate the procedure for changing school session times. Where the governing body proposes to make changes in the time of school sessions, regulations may set out the procedure to be followed, provide for the implementation of such proposals and enable to LEA to determine whether a person is to be treated as a registered pupil at the school. This re-enactment preserves the current position that these detailed measures are set out in secondary legislation, and as now, the power will continue to be subject to negative resolution.

58.  Clause 32 re-enacts the primary provision in section 43 of the School Standards and Framework Act, by creating a power to make regulations providing for the purpose and proceedings of the annual parents' meeting, and for powers and duties in relation to it. We consider that a delegated power is a more suitable mechanism for setting out this degree of detail, which may be subject to change over time.

59.  Clause 33 re-enacts section 44 of the School Standards and Framework Act almost exactly. Regulations may make provision for the making and termination of arrangements for the constitution of temporary governing bodies; their constitution, meeting and proceedings; the exercise of their powers before the school opening date; transitional arrangements; and other matters relating to the temporary governing body. The regulation-making power ensures that detailed provisions can be set out in secondary legislation and that any adjustments to the provisions can be made straightforwardly. The one change from the previous law is to allow the date for the constitution of a permanent governing body to be provided for in regulations. This will give flexibility for different circumstances, such as cases where a school which has been closed and re-opened following failure needs a little longer with a temporary governing body.

60.  Clause 34 enables regulations to make provision with respect to the staffing of community and voluntary controlled schools, which may include provision for appointments, discipline, suspension and dismissal of teachers and other staff. The regulations may confer functions on LEAs, governing bodies and headteachers. This clause replaces Schedule 16 of the School Standards and Framework Act, which set out in very great detail the staffing requirements for these schools. The intention is that regulations made under this power should allow schools rather more flexibility to develop innovative models of staffing. As schools develop such new models of staffing, it may be necessary to keep these provisions under review and to amend them in the light of developing practice. Secondary legislation is therefore the most appropriate mechanism for making these provisions.

61.  Clause 35 enables regulations to make provision with respect to the staffing of foundation and voluntary aided schools, which may include provision for appointments, discipline, suspension and dismissal of teachers and other staff. The regulations under clause 35 will relate to those under clause 34 as Schedule 17 of the School Standards and Framework Act (which is replaced by clause 35) relates to Schedule 16 of that Act. As with clause 34, the intention is that regulations made under this clause should allow schools rather more flexibility to develop innovative models of staffing. Different provisions are necessary to reflect the differences between the different categories of school, including the different employer of staff. As with regulations under clause 34, it may be necessary to keep these provisions under review and to amend them in the light of developing practice.

62.  Clause 36 provides that regulations may make provision with respect to the recovery from governing bodies of amounts payable by virtue of subsection 7 of that clause, relating to costs in respect of premature retirement and dismissal of staff engaged to provide community facilities. In the light of the new powers in clause 25 for governing bodies to employ staff, clause 36 provides necessary additional protection. The regulation making power ensures that procedural detail is dealt with in secondary legislation.

Chapter 2: Financing of Maintained Schools

63.  Regulations under clause 39 may prescribe classes or descriptions of expenditure which make up each local education authority's "LEA budget", and "schools budget", and that are authorised or required to be deducted from the schools budget to establish their individual schools budget. This ensures that there is consistency in delegation of funding across the country. Regulations may also provide that any prescribed determination can be made by the Secretary of State or by the authority's schools forum. The latter provision enables certain decisions to be made to reflect local circumstances. 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 education system. The comparable matters under the current system are dealt with in regulations.

64.  Under clause 40, the Secretary of State may by order prescribe the minimum amount of the authority's school budget. The order-making power enables the Secretary of State to respond annually to the circumstances of each individual authority. This power is expected to be used very rarely, and because of its potentially significant effect, the order must be made by a very detailed procedure based on comparable local government finance procedures, requiring approval by a House of Commons resolution, as set out in the clause.

65.  Regulations under clause 41 may make provision for the establishment of schools forums including the provision as to the constitution, meetings, proceedings and expenses of a schools forum. The delegated power is appropriate as it will be used to set out detailed arrangements for the operation of the forum, and may require adjustment over time in the light of experience of operation of the forums and developing practice.

66.  Clause 42 enables regulations to be made requiring the governing body to keep prescribed accounts, financial statements or reports, comply with audits and to send copies of the accounts as prescribed to the LEA, Secretary of State or National Assembly for Wales. This regulation-making power will ensure a consistent minimum standard for school financial reporting. The detail of these provision is best suited to secondary legislation, and again technical changes to the regulations may be needed over time.

67.  A policy statement and two sets of draft regulations relating to this Chapter are included as part of the document at Annex A.

Chapter 3: Admissions, exclusions and attendance

68.  Clause 44 imposes a duty on the LEA to establish an admission forum for their area. Regulations may make provision for the constitution, meetings and proceedings of a forum; the manner in which advice is to be given by the forum; and the establishment of joint admission forums covering more than one LEA area. These detailed procedural matters are appropriately dealt with in secondary legislation.

69.  Regulations under clause 45 may make provision, including any prescribed method of calculation, about the determination by an admission authority of the number of children to be admitted to a school in a year. This clause is necessary because of the abolition of standard numbers in this legislation. Regulations are expected to be used to ensure that decisions about admission numbers take account of the capacity of the school.

70.  Clause 46 is intended to be used to ensure that there is a scheme in each LEA for co-ordinating admission arrangements. Such a scheme would essentially be an administrative arrangement designed to ensure that each child is offered a place at a school at the same time. Regulations may require a local education authority to formulate a qualifying scheme for co-ordinating arrangements for the admission of pupils to maintained schools in their area; to take action with the view to securing an agreement for co-ordinating the arrangements for the admission of pupils; to require the LEA to provide other LEAs with information; and to ensure that a decision to admit or refuse a child will only be communicated to the parent on a prescribed day. Where the LEA are unable to agree a scheme with other admission authorities in their area, the regulations will empower the Secretary of State or (in relation to Wales) the National Assembly for Wales to impose one. The delegated powers are therefore to be used to set out technical and complex administrative arrangements, which may need some adjustment over time.

71.  Clause 47 enables regulations to be made making provision about admission appeals. Such provision is currently made in Schedule 24 to the School Standards and Framework Act 1998, which itself contains a power for the Secretary of State to amend the provisions in primary legislation by order. Equivalent provision in respect of admission appeals relating to pupils who have been permanently excluded from two or more schools maintained by a LEA, for which provision is currently contained in Schedule 25 to the 1998 Act, are contained in paragraph 10 of Schedule 4 to this Bill. The new regulations will be helpful in enabling detailed refinements to be made to the manner in which admission appeals panels hear appeals and in reducing the level of detailed prescription about process. Over time, there have been a number of detailed changes to this process, and this delegated power will ensure that any future such changes can be made quickly in response to emerging problems.

72.  A full policy statement relating to the admissions provisions of the Bill is attached as part of Annex A.

73.  Regulations under clause 49 will make provision regarding exclusion of pupils from maintained schools and Pupil Referral Units (PRUs) and requiring the LEA to make arrangements for an appeals process, including a new right of appeal in relation to permanent exclusion from PRUs. These regulations will largely reflect existing legislation in sections 64 to 68 of, and Schedule 18 to, the School Standards and Framework Act 1998 but will make certain changes to address current challenges faced by the exclusions and exclusion appeals process. In a similar way as with clause 47, the provision currently made in Schedule 18 to the 1998 Act in relation to exclusion appeals contains power to amend the provision by order. This delegated power will ensure that future refinements can be made to the exclusions process (including appeals) in response to any emerging problems, and that the system works to the best advantage of the individuals involved and the system as a whole.

74.  Regulations may already be made under section 63 of the School Standards and Framework Act, setting targets in relation to unauthorised absence. Clause 50 extends that provision, so that targets can also be set in relation to authorised absences. The change reflects the desire to reduce all forms of absence at school, and the new provisions mirror the existing ones.

75.  Policy statements relating to the absence and exclusions provisions of the Bill are attached as part of Annex A.

PART 5: SCHOOL ORGANISATION

76.  Under clause 66, regulations may make provision for the details of the content and manner of publication of a notice by the LEA inviting proposals for a new secondary school and the manner in which the subsequent proposals are published and the information which they must contain. In part this is similar to the existing provisions under section 28 of the School Standards and Framework Act with respect to the publication of school organisation proposals, where regulations prescribe this detail. Given that the regulations deal with matters of detail they will be subject to negative resolution.

77.  Regulations under the new section 113A of the Learning and Skills Act 2000 inserted by clause 68 may make provision with respect to the information to be included in proposals published under this section, their publication, consultation on them, objections to or comments on proposals, withdrawal or modification of proposals and approval by the relevant authority. Again, this regulation-making power mirrors in part existing delegated powers relating to school organisation The regulations deal with matters of detail and procedure and so by virtue of section 152(2) of the Learning and Skills Act 2000 will be subject to negative resolution.

78.  Clause 69 extends section 28 of the SSFA so as to allow the governing body of a community school maintained by an LEA in England to publish proposals to make "prescribed alterations" to schools." There is thus an extension of the power to prescribe alterations for which proposals must be published. By virtue of section 138(3) of the SSFA such regulations are subject to negative resolution.

79.  Clause 70 enables proposals to be published to establish a new federated school. Regulations made under this clause may make provision to modify provisions in the School Standards and Framework Act 1998, the Learning and Skills Act 2000, or clause 66 of this Bill so that a federated school can be established. This is necessary to ensure that technical modifications to the provisions can be made if necessary, so that they apply suitably to the establishment of a new federated school.

80.  Policy statements relating to school organisation and sixth form proposals are attached to this memorandum as part of Annex A.

PARTS 6 AND 7: THE CURRICULUM IN ENGLAND AND THE CURRICULUM IN WALES

81.  In parts 6 and 7 of the Bill, the National Curriculum provisions, currently contained in the Education Act 1996 are re-enacted. The Bill separates out the Curriculum for England from that for Wales. However, there remain very strong parallels, and the order-making powers contained in the two parts are analogous. In this section of the memorandum, therefore, the two Parts of the Bill are taken together, with the powers for England discussed alongside those for Wales.

82.  Clauses 76 and 97 re-enact for England and for Wales respectively section 352 of the Education Act 1996, but add a new power to

make additions to the basic curriculum (which cannot affect religious education or sex education); and

change the upper age limit of the National Curriculum.

Such an order is subject to the affirmative procedure.

83.  Clauses 78 and 99 re-enact section 355 of the 1996 Act. These are order-making powers to substitute a different age with regard to any specified subject and to amend the key stages repeat existing powers for England and for Wales. The procedure under which orders must be made is accordingly identical.

84.  Clauses 79 and 100 set out curriculum requirements for the foundation stage in England and Wales. A power for the Secretary of State in England to amend the areas of learning for the foundation stage is introduced, similar to that which exists with respect to the key stages. The power is exercised in the same way as that for the key stages. In England there is currently a non-statutory foundation stage covering the areas of learning set out in clause 79 and for this reason these areas of learning are specified in the Bill. There is however no similar non-statutory foundation stage in Wales and so in Wales the areas of learning are not defined in the Bill but will be specified by order.

85.  Clauses 80 and 101 re-enact for England and for Wales section 354 of the Education Act 1996 as respects the curriculum requirements for the first, second and third key stages. The order-making powers to specify the meaning of modern foreign language, and circumstances when it is not to be treated as a foundation subject and to amend, by order, the core and foundation subjects for the first three key stages repeat existing provisions. Similarly, the procedure under which orders must be made repeats the existing position.

86.  Clauses 81 and 102 re-enact for England and for Wales section 354 of the Education Act 1996 as respects the curriculum requirements for the fourth key stage. The order-making power to specify meaning of modern foreign language, and circumstances when it is not to be treated as a foundation subject is identical to the current provision, but to be subject to negative resolution.

87.  Clauses 82 and 103 introduce a new power for the Secretary of State or the National Assembly for Wales to alter or remove requirements for the 4th key stage. As this enables the Secretary of State or National Assembly for Wales to make substantial change to primary legislation, potentially affecting the content of the key stage 4 curriculum very significantly, such an order would be subject to affirmative resolution.

88.  Clauses 83 and 104 re-enact for England and for Wales section 356 of the Education Act 1996, with an additional, but precisely analogous power in relation to maintained nursery provision and funded nursery education organisations. There is a power to establish a new National Curriculum in respect of the Foundation Stage, and to revise the National Curriculum in respect of the Foundation Stage and key stages. Such an order may impose functions on the governing body, the headteacher, the person providing funded nursery provision, an early years development and childcare partnership and the LEA. The power with respect to funded nursery education reflects the existing powers with respect to schools.

89.  Clauses 87 and 108 provide that regulations may specify that in such circumstances as may be prescribed, the National Curriculum shall not to apply, or shall apply with modifications. This provision re-enacts for England and for Wales respectively section 363 of the Education Act 1996.

90.  Clauses 89 and 110 provide a regulation making power to enable a head teacher of a maintained school or maintained nursery school to make a direction for the National Curriculum not to apply to an individual pupils for a limited period; and to revoke such direction. These clauses re-enact for England and for Wales section 365 of the Education Act 1996.

91.  In addition, clause 92 provides for referral to the QCA, and detailed consultation with the relevant stakeholders prior to making orders under clauses 78(4), 79(3), 80(6), 83(2)(a) or (b) or (3)(a) or (b), or regulations under clause 87.

92.  Policy statements relating to the curriculum and to the foundation stage as part of the curriculum are attached as part of Annex A.

PART 8: TEACHERS

93.  Part 8 of the Bill introduces a number of significant provisions with respect to the teaching profession. The School Teachers' Pay and Conditions Act 1991 is repealed, and replacement provisions introduced which ensure the continuing existence of the School Teachers' Review Body, with essentially the same role that it currently has. A number of changes are made to the provisions, with a view to improving their clarity and reflecting the policy developments that have taken place since 1991. Section 218 of the Education Reform Act 1988 is also repealed, with much of its content re-enacted in this part. That section had been amended several times, to the point where it had become unclear, and covered a large number of disparate matters. Many of the delegated powers in this Part therefore replace similar powers that existed in previous legislation.

94.  Clause 118 provides a power to prescribe teachers' pay and conditions, replacing the similar power that exists in the School Teachers' Pay and Conditions Act 1991, which is repealed by this legislation. Typically, a new order is made each year, setting out in full pay and conditions for teachers and this may then be supplemented during the year with additional orders. As in the current legislation, the order-making power is to be subject to negative resolution, unless the order contains only provisions which give effect without significant modification to the Review Body's recommendations in which case no parliamentary procedure is required. This reflects the existing law in the Teachers' Pay and Conditions Act. Clause 119 sets out the scope of an order made under section 118, which is essentially the same as that which already exists. Clause 122 sets out the requirements for consultation prior to making an order.

95.  An order under clause 121(4) may be used to add to or subtract from the list of matters which are considered to be 'subsidiary' under 121(3). Subsidiary matters are those which do not require reference to the School Teachers' Review Body (STRB). Orders under this section could be used to remove matters from the list if it were felt that they had assumed sufficient importance that they ought to be considered through the full STRB process; or to add matters to the list if it were felt that the STRB was becoming overburdened with less significant matters. Reflecting the fact that such orders would permanently alter primary legislation, they are to be subject to affirmative resolution following consultation under clause 122, if adding to the list of subsidiary matters.

96.  Clause 124 re-enacts, with minor modifications to reflect the changes in the legislation, the power inserted by the School Standards and Framework Act into the Teachers' Pay and Conditions Act to disapply the provisions of a teachers' pay order in relation to teachers working in a school in an Education Action Zone. The new provision is required because the existing one is repealed as part of the repeal of the Teachers' Pay and Conditions Act and its replacement in this Bill. It mirrors the existing powers and because each order will apply to just one school, statutory instruments will be made without parliamentary procedure as before. A new regulation making power in this clause enables provision to be made where an order under section 124(2) has been revoked or lapses. This ensures that should this situation arise, it will be possible to make appropriate provision to deal with the circumstances.

97.  Regulations may make provision under clause 127 to require teachers' appraisal in a manner specified by the regulations and at times specified by or determined in accordance with regulations. They may impose duties on governing bodies, LEA's and head teachers and permit the results of an appraisal to be used in determining teachers' pay. There is a requirement for the Secretary of State to consult before making such regulations. This clause updates existing powers, under section 49 of the Education Act 1986. Regulations are already in existence and will continue in force under this provision. Any new regulations will be made subject to negative resolution, as now.

98.  Clause 128 is part of the rationalisation of section 218 of the Education Reform Act 1988, under which regulations relating to the requirements of qualified teacher status already exist. The extent of the regulation making power is broadly the same as the one that already exists in current legislation, and will be used in a similar way to ensure that the qualification requirements for obtaining qualified teacher status are appropriate. As now, regulations will be subject to negative resolution.

99.  Clause 129 is also part of the rationalisation of s218, and makes some modifications to ensure that given changing practice in schools, the requirement for teachers to be qualified remains appropriate. Increasingly in schools, there are significant numbers of adults working to support children's education who are not qualified teachers. This clause therefore enables regulations to be made specifying the work that only a qualified teacher may do and the work that others may do only under specified conditions (such as supervision by a qualified teacher). The greater flexibility provided by regulations will enable these provisions to be adjusted over time to ensure that in the light of developing practice in schools, properly qualified adults lead learning and that there is appropriate flexibility in schools. As now, regulations made relating to the requirement to be qualified will be subject to negative resolution.

100.  A policy statement relating to school teachers' qualifications is attached as part of Annex A.[Not Printed]

101.  Clause 130 is also part of the rationalisation of s218, relating to the requirement for teachers to be registered with the General Teaching Council. The structure of regulation making powers in this clause replicates that of those in clause 129.

102.  Clause 131 again rationalises and modifies part of the existing s218 of the Education Reform Act 1988. Regulations may make provision for the requirement of head teachers' to hold specified qualifications to serve in post. The intention is that it should be mandatory to hold the National Professional Qualification for Headship, as well as to be a qualified teacher, in order to become a head teacher for the first time. Regulations enable there to be flexibility about when the mandatory requirement should be introduced.

103.  Regulations under clause 132 (which again is part of the rationalisation of section 218) may make provision requiring teachers to hold specified qualifications in order to work at FE colleges. It is our intention that the existing regulations will remain in force. As now, new regulations would be subject to negative resolution.

104.  Regulations under clause 133 may require principals at FE institutions to hold specified qualifications in order to serve in the post. Regulations enable there to be flexibility about which qualifications should be specified for this purpose, and ensure that additional qualifications can be specified over time. In line with similar existing provisions relating to school teachers, regulations are subject to negative resolution.

105.  Regulations under clause 134 enable the Secretary of State to make regulations relating to the provision of courses designed to lead to qualification under clause 132 or 133(1). The power to make regulations is necessary to ensure that high standards of teacher training are attained and maintained by the institutions and awarding bodies which seek to offer such provision. This is again a re-enactment of existing powers within section 218 of the Education Reform Act, with some modifications to drafting.

106.  Regulations under clause 135 may make provision for the National Assembly for Wales to prohibit provision of HE courses at FE institutions in Wales without its approval. Again, this is rationalisation and re-enactment of existing powers within section 218.

107.  Under clause 137, regulations may provide that certain activities will only be able to be carried out by a person who has satisfied specified conditions as to health or physical capacity. This provision is again part of the rationalisation and re-enactment of existing powers within section 218 of the Education Reform Act and it is our intention that the existing regulations will continue in force.

108.  Clauses 138 and 139 enable the Secretary of State to direct that a person will be prohibited from teaching, where that person has been guilty of misconduct. Regulations may be made prescribing the procedure for giving such a direction. This clause provides for appeals to be heard by the Tribunal established under section 9 of the POCA. It allows regulations to be made preventing an appeal being made on the grounds that the person did not commit an offence of which he has been convicted. Regulations may also set out the circumstances in which the Tribunal will allow an appeal or grant an application for a review and the powers available to the Tribunal on allowing an appeal or granting a review. Again, this provision re-enacts with some modifications existing measures currently found within section 218 of the Education Reform Act.

109.  A policy statement relating to misconduct is attached as part of Annex A. [Not Printed]

110.  Clause 140 is also a part of the rationalisation of section 218 of the Education Reform Act. It does not itself contain provision for delegated powers, but does make clear that powers to make regulations under clauses 128 to 137 may be made by reference to a class or description of course, qualification or institution, may confer discretion on the Secretary of State, the Teacher Training Agency, the General Teaching Council or another specified person and may impose a duty on the Teacher Training Agency.

111.  Clause 143 introduces Schedule 12, relating to the General Teaching Councils. A policy statement relating to the regulation-making powers found there (which are discussed below) is attached as part of Annex A. [Not Printed]

PART 9: CHILDCARE AND EARLY EDUCATION

112.  Clause 145 extends the statutory remit of Early Years Development Partnerships and Plans to cover childcare as well. As a result of the clause, regulations made under section 120 of the School Standards and Framework Act prescribing the procedure for obtaining the Secretary of State's approval of the plans and for their publication may also extend to childcare. This change brings legislation in line with practice. The delegated power in respect of childcare will be used in a similar way to that which already exists in respect of early education, but the content of the childcare component of the plans will be governed by guidance rather than the regulations.

113.  Clause 146 creates a power to confer on Her Majesty's Chief Inspector by order additional functions as necessary to enable HMCI to approve persons in accordance with criteria determined by or under a scheme made under the Tax Credits Act 2002. The Government has no firm plans to use this power. It has indicated that it is considering providing tax credit support to parents using childcare provided in their own home, and clause 146 would enable HMCI to have powers conferred on him to allow him to operate a scheme. The creation of any such scheme is subject to the passage of the Tax Credits Bill. The regulation-making power provides appropriate flexibility, allows for full consultation and enables a variety of technical details to be set out in secondary legislation.

PART 10: INDEPENDENT SCHOOLS

Chapter 1: Regulation of Independent Schools

114.  In this chapter, the existing provisions for the regulation of independent schools (in sections 464 to 478 of the Education Act 1996) are replaced by a modernised framework. The delegated powers in this Bill to a large extent mirror those set out in the existing legislation, updated to reflect the new approach to regulation.

115.  Regulations under clause 152 may prescribe standards to be met in relation to independent schools. These standards are then to be used in judging the suitability of schools for registration. Standards may need to be changed over time to reflect changing circumstances and practice and will need to be set out in considerable detail. This delegated power is therefore the most appropriate legislative route.

116.  Clause 155 provides that an application for registration of an independent school must contain prescribed information and be made in a prescribed manner. These detailed matters are best covered through the use of regulations. This clause re-enacts the existing section 465 of the Education Act 1996.

117.  Clause 158(3)(b) permits the registration authority to require the person conducting a school inspection to arrange for the publication of the report in the prescribed manner. This is likely to mean both traditional paper publication and availability on the Internet; regulations will allow the flexibility to adapt to technological and other changes.

118.  Regulations under clause 159(9) allow the specification of the fee to be paid by an independent school where it is inspected by Ofsted. A sliding scale will be established according to the number of pupils at the school and other factors such as whether there is boarding accommodation.

119.  Clause 160 largely re-enacts existing provisions and powers in sections 469 and 471 of the Education Act 1996. The key difference is that the registration authority may now require the submission by the school of an action plan to rectify shortcomings, rather than following the existing notice of complaint procedure. The registration authority will in addition now be able to order the school to cease part of its operation, rather than as at present being limited to striking the school off the register or disqualifying the premises. As under section 471 of the Education Act 1996, orders will not be made by Statutory Instrument.

120.  Regulations under clause 163 may make provision requiring the proprietor of a registered school to provide to the registration authority particulars relating to the school. This provision re-enacts section 467 of the Education Act 1996 with some modifications. For the first time, regulations may provide that failure to comply may be a criminal offence. The current regulations (The Education (Particulars of Independent Schools) Regulations 1997) will continue in force for the time being.

121.  A policy statement relating to this Part is attached as part of Annex A. [Not Printed]

PART 11: MISCELLANEOUS AND GENERAL

122.  Clause 170 extends the definition of 'secondary education' to include education received outside institutions. This may mean that the detailed application of certain parts of education legislation will need some modification in order to apply appropriately to the additional class of persons now deemed to be receiving secondary education. The clause therefore contains a power to modify by order the effect of legislation in its application to pupils receiving secondary education within the new section 2(2B) of the Education Act 1996 inserted by this clause. Such amendments will be of a minor and technical nature and do not therefore warrant an affirmative resolution debate.

123.  Regulations under clause 174 may make provision for the Secretary of State to pay an allowance to a person over compulsory school age in connection with that person undertaking education or training. These regulations will set out very detailed provisions in respect of the scheme for the payment of such allowances, which may need to be adjusted over time in the light of experience of operation of the scheme. Regulations therefore provide necessary flexibility.

124.  Regulations under clause 175 may prescribe the form and content of learning agreements put in place in connection with allowances paid under clause 174. Regulations may also set out eligibility to receive an allowance and enable an agreement to specify targets relating to the attendance, conduct or attainment of a student. Regulations may also impose obligations on governing bodies relating to learning agreements. These regulation making powers relate to the detailed arrangements for the operation of a scheme established under clause 174, and the delegated powers offer necessary flexibility in allowing changes to be made to these details.

125.  A full policy statement in relation to these clauses is attached as the penultimate section of Annex A. [Not Printed]

126.  Regulations under clause 179 may make provision for the repayment by the Secretary of State of teachers' student loans. The intention is that the loans of teachers of shortage subjects in state education will be repaid over time. Regulations will be used to make very detailed technical provisions of a sort best suited to secondary legislation, relating to eligibility, approach to repayment of different types of student loan, roles and responsibilities of different bodies and for appeals.

127.  A policy statement in relation to this power is the final part of Annex A. [Not Printed]

128.  Regulations under clause 195 may make provision about the compilation, retention and disclosure of educational records of FE institutions, including a duty to provide a copy of the record for a reasonable fee. This is a re-enactment of section 218 (9)(a) of the Education Reform Act 1988.

129.  Regulations under clause 196 may make provision requiring approval for the use of specified equipment or material in FE institutions. This is a re-enactment of section 218(1)(e) of the Education Reform Act 1988.

130.  Clause 200 makes provision with respect to recoupment adjustments between local authorities. Regulations may provide that authorities should pay to each other such amounts as they may agree or failing that, such amount as may be determined according to regulations. This provision rationalises existing legislation in section 494 of the Education Act 1996.

131.  Clause 201 deals with special cases of recoupment. Regulations may make provision requiring or authorising payments of amounts determined by or under the regulations to be made by one authority to the other.

132.  Clause 207 provides a well precedented power for the Secretary of State and National Assembly for Wales to make incidental, consequential, transitional or supplementary provision to allow the orderly implementation of the Bill. It allows for necessary modifications to existing statutory provisions and for associated savings. Such matters are appropriately dealt with in subordinate legislation, made by negative resolution.

Schedule 1: Governing Bodies

133.  Paragraph 3(5) empowers the Secretary of State or the National Assembly for Wales by order to transfer consent functions to the LEA. An identical power for the Secretary of State is contained in paragraph 3(4) of schedule 10 of the SSFA. Such an order will be made by Statutory Instrument subject to negative resolution. Paragraph 3(6) allows the Secretary of State of National Assembly for Wales also to issue by order directions to authorities to whom consent has been transferred. As such directions will necessarily be bespoke they do not require a statutory instrument. This reflects the current position in paragraph 3(5) of Schedule 10 and section 138 of the SSFA.

134.  Under paragraph 4, regulations may also make further provision for the general powers of the governing body and other matters relating to it as a body corporate. This is a new power reflecting the changing role and nature of school governing bodies. Just as it is no longer appropriate or necessary to provide in primary legislation for the detail of governing body composition, so is it necessary to create more flexibility in respect of their powers. The new powers for governing bodies including powers in respect of extended schools, federations and companies will all contribute to a new culture for governing bodies. We want to be able to encourage and facilitate freedoms which will help governing bodies achieve their primary aim of raising standards and are therefore taking this power to give the Secretary of State the necessary flexibility to respond quickly and appropriately - subject of course to parliamentary scrutiny through a negative resolution.

135.  Paragraph 5 allows the Secretary of State or National Assembly for Wales by order to set a later date for the discontinuance of a governing body. As such orders will necessarily be bespoke they do not require a statutory instrument. This reflects the current position in paragraph 4 of Schedule 10 and section 138 of the SSFA.

Schedule 4: Admissions

136.  Under paragraph 5, regulations may prescribe the procedure for determining admission arrangements.

137.  Paragraph 8 allows that Regulations may require the publication of information relating to admissions, by LEA and governing bodies. It is appropriate that such matters of detail are dealt with through secondary legislation so that minor changes which may be necessary from time to time can be made.

138.  Regulations under Paragraph 10 may make provision for the appeal procedure in respect of appeals relating to children to whom section 87 of the SSFA applies (children permanently excluded from two or more schools). It is intended that Regulations will largely replicate the provisions of Schedule 25 of the School Standards and Framework Act.

139.  Paragraph 13 adds a further Regulation making power to those contained in Section 98 of the SSFA 98. Regulations may make provision as to the person who is responsible for admitting, or refusing to admit, children to a maintained nursery school, in relation to whom the admissions provisions within the School Standards and Framework Act 1998 do not generally apply.

Schedule 6: Governing Bodies Consisting of Interim Executive Members

140.  Paragraph 19 provides that Regulations may make provision as to the transition from a governing body consisting of interim executive governors to a normally constituted governing body, and in connection with that transition, modify provisions of the Bill. This is a matter of detailed process and technical change. It is entirely appropriate, therefore, for secondary legislation subject to negative resolution.

Schedule 7: Academies

141.  Regulations under Schedule 7, which inserts a new Schedule 35A into the 1996 Act, may make provision setting out details of transfer schemes in respect of Academies. The regulation-making power ensures that detailed provisions can be set out in secondary legislation and that any adjustments can be made straightforwardly.

Schedule 8: Proposals for Additional Secondary Schools

142.  Schedule 8 enables Regulations to be made in relation to the submission to the Secretary of State of a proposal for an additional secondary school after the proposal has been considered and commented on by the SOC. These are detailed procedural matters and best dealt with through secondary legislation, subject to negative resolution.

Schedule 10: Establishment etc. of Schools

143.  Regulations may be made governing procedural matters relating to the consideration of statutory proposals. This includes the power to prescribe the detailed circumstances when an appeal can be made to the adjudicator against the rejection of proposals published by the governing body of a school, Given that the regulations are concerned with procedure they are by virtue of section 138(3) of the SSFA subject to negative resolution.

Schedule 12: The General Teaching Councils

144.  Schedule 12 amends various parts of the Teaching and Higher Education Act 1998. It amends section 3 of the Teaching and Higher Education Act providing the Secretary of State, and the National Assembly for Wales, with the power to introduce a new category of provisional registration for teachers. A regulation-making power is taken to establish the eligibility of persons for this category.

145.  Section 3D provides for a further power which enables regulations to be made which require the GTCs to regard people of a particular description to be suitable as teachers. For example a teacher deemed suitable by GTCE could be prescribed to allow the GTCW to take this as an assessment of suitability.

146.  Schedule 1 of the Teaching and Higher Education Act is also amended to enable the Secretary of State or National Assembly for Wales by order to enable the relaxing or removal of controls which they exercise over their respective GTCs. An example of this would be to remove the need for their consent to the borrowing of money by the GTCs. Such an order would be subject to a negative resolution procedure

Schedule 13: Regulation of Child-Minding and Day Care

147.  Paragraph 1 extends the regulations which can be made under section 79B(7) of the Children Act 1989 regarding qualification for registration for child minding or day care.

148.  Paragraph 3 inserts a new power into section 79M of the Act to prescribe descriptions of determinations by the registration authority against which a right of appeal arises.

149.  Regulations under Paragraph 6 which inserts a new paragraph into Schedule 9A to the Act may permit the registration authority to waive disqualification for registration as a child minder or a provider of day care where a person has disclosed to the registration authority a matter which would under existing regulations lead to that person's disqualification.

150.  A delegated power is the most suitable mechanism for setting out this degree of detail, and as with the current provision under the Children Act 1989 all these regulations are to be subject to negative resolution.

Schedule 19: Transport for Persons over Compulsory School Age

151.  Schedule 19 gives effect to provisions designed to improve planning, coherence and publicity of local transport policies for pupils of sixth form age. The schedule contains two new delegated powers. The first is a power inserted as section 509AA(10) of the 1996 Education Act enabling the Secretary of State to amend by order the date by when a LEA shall produce a policy statement setting out the provision of post-16 transport. This enables the legislation to retain sufficient flexibility in the light of practice. The second is a power inserted as section 509AC(6) which enables the Secretary of State to amend the definition of academic year as defined in that section. This is to ensure that the timetable continues to be based on the LSC's funding cycle should that change.

152.  Paragraph 6 of the Schedule contains a power consequential on the repeal of section 509(6) of the Education Act 1996. That subsection contained a power to make regulations requiring an LEA to publish information about transport both for students over compulsory school age and for children receiving nursery education. The provisions relating to students over compulsory school age are not needed because of the new sections 509AA to AC and so it was found convenient to repeal section 509(6) and to place the provisions concerning nursery education into section 509A. This is done in subsection (6).

Schedule 21: Minor and Consequential Amendments

153.  Paragraph 113 amends paragraph 3 of Schedule 6 to the School Standards and Framework Act 1998. The amendment contains a power by regulations subject to negative resolution to define the circumstances under which a proposal for the establishment, alteration or discontinuance of a school should not be determined until related proposals have been determined. The regulations can prescribe the types of proposals on which the school organisation committee should defer taking a decision and the types of proposals to which they need to be related. This provision is consequential on clauses 66 and 67, which provide for certain proposals for the establishment, alteration or discontinuance of schools to be determined by the Secretary of State.

154.  It will be necessary to specify in some detail the types of proposals which will be affected and it is also desirable to retain flexibility to make changes to the detail of the types of proposals which will be affected and so regulations are appropriate here.

February 2002