Provisions About Children and Young

EDUCATION AND ADOPTION BILL

DELEGATED POWERS MEMORANDUM

INTRODUCTION

1. This Memorandum identifies the provisions in the Education and Adoption Bill that confer powers, or amend or extend existing powers, to make delegated legislation. It explains in each case the nature of the power, why it is necessary, and the nature of, and reason for, the procedure selected.

PURPOSE AND EFFECT OF THE BILL

2. The Bill contains provisions to improve schools in England by ensuring that inadequate maintained schools are subject to intervention, specifically in the form of efficient conversion into sponsored Academies, and by enabling the Secretary of State to take action in relation to coasting schools. It gives the Secretary of State a duty to make an Academy order in respect of maintained schools that Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (the head of Ofsted) judges to require significant improvement or special measures and therefore to be inadequate. Currently there is only a discretionary power to do so. The Bill also changes consultation requirements so that there will no longer be a requirement to consult on whether the school should become an Academy where an Academy order is made because the school is eligible for intervention. There will be a duty on the governing body and local authority to take reasonable steps to facilitate conversion to an Academy, and the Secretary of State will be able to give detailed directions about what steps should be taken and by when. The Bill gives the Secretary of State the power to revoke an Academy order, to allow for those circumstances where conversion is no longer appropriate.

3. The Bill also gives both the Secretary of State and local authorities the discretion to intervene in schools that are identified as coasting, but is clear that any intervention by the Secretary of State will take precedence over the interventions of a local authority. Where schools are eligible for intervention, the Bill also gives the Secretary of State the same power as a local authority to require an eligible school to arrange for external assistance with a view to improving the performance of the school. In schools that do not fall within the inadequate or coasting definition, but nonetheless are causing concern, the Bill allows the Secretary of State (who will act through her regional schools commissioners) to issue a warning notice where standards of performance of pupils at the school are unacceptably low or there is a serious management, governance, or safety problem. Where a school fails to comply with such a notice they will become eligible for intervention.

4. The Schools Causing Concern guidance will be revised to reflect the changes to intervention powers proposed in the Education and Adoption Bill. This is statutory guidance for local authorities and describes how they should intervene in underperforming maintained schools. The guidance will also reflect the intervention powers of the Secretary of State, and how these will be used by Regional Schools Commissioners (RSCs). It will describe how they will use the powers in practice, and how they will exercise their discretion – for example in deciding which schools that have met the coasting definition require intervention, and what that intervention should be. We will consult on a revised draft of the guidance in the autumn.

5. The Bill also makes provision for a backstop measure to support the introduction of regional adoption agencies. We are working with the sector to introduce regional adoption agencies and expect that most local authorities will make this transition voluntarily. However, for those local authorities that do not do so, the power in this Bill will ensure that all local authorities are part of a regional adoption agency by 2020. It amends the Adoption and Children Act 2002 (‘the 2002 Act’) to give the Secretary of State the necessary power to direct local authorities to make arrangements for certain adoption functions to be carried out, on their behalf, by another adoption agency. The functions specified are the recruitment, assessment and approval of prospective adopters, decisions as to whether a child should be

placed with a particular prospective adopter and the provision of adoption support services.

6. In summary the key things the Bill will do are:

 make a new group of “coasting” schools eligible for intervention.

 give the Secretary of State the same power as local authorities to issue performance standards and safety warning notices and require a governing body to enter into arrangements.

 when a school is eligible for intervention give the Secretary of State power to direct a local authority about the appointment of interim executive members to replace a governing body, including a power to take over responsibility from the local authority for these interim executive members.

 place a duty on the Secretary of State to make an Academy order when a schools is judged inadequate by Ofsted.

 remove the existing requirement for consultation by the governing body on whether a school should become an Academy where an Academy order is made under the new duty or where it is made because a school is eligible for intervention.

 place a duty on a governing body and local authority to facilitate Academy conversion where an Academy order is made by the Secretary of State under the new duty or because a school is eligible for intervention.

 give a power to the Secretary of State to direct a governing body or local authority to take particular steps to facilitate conversion in the circumstances above.

 give the Secretary of State a power to revoke an Academy order.

 on adoption, provide for the Secretary of State to give directions to local authorities to require them to make arrangements with one of the local authorities who are the subject of the direction or another adoption agency for any or all of certain specified functions to be carried out on their behalf.

THE PROVISIONS

Schools causing concern: eligibility for intervention

Clause: 1(3) – power to define ‘coasting school’ Power conferred on: the Secretary of State Power exercisable by: regulations made by statutory instrument Parliamentary procedure: negative resolution

Purpose:

This clause creates a new type of school eligible for intervention and provides a power for the Secretary of State to define what “coasting” means for these purposes in regulations.

7. As well as strengthening the Secretary of State’s powers to intervene in maintained schools, this Bill extends the circumstances in which such interventions can be made. Clause 1(2) and (3) amends the Education and Inspections Act 2006 (‘the 2006 Act’) so that coasting schools will be eligible for intervention (in addition to schools that the Chief Inspector judges to be inadequate and those that have failed to comply with a warning notice). By virtue of the amendment made by clause 7(3), the interventions available for the Secretary of State or local authority to use in respect of a coasting school would, include the discretion for the Secretary of State to make an Academy order.

Justification

8. This change will widen the possibility of intervention to schools, which, year on year, are failing to ensure that their children are reaching their potential. Identifying a school that is not doing enough at over time will require the assessment of a number of detailed measures and sets of data, none of which have been defined in primary legislation previously. It is therefore not practical to set out a definition of ‘coasting school’ on the face of the Bill. Accordingly section 60B(2), would be

inserted into the 2006 Act by clause 1(3) of the Bill, gives the Secretary of State the power to define ‘coasting school’ in regulations.

9. We have produced illustrative regulations (see copy attached). These are technical in nature and rest on the wider school performance data and metrics already in use by the Department, and understood within the sector. The regulations also provide that from 2016 the coasting definition will be dependent on the new progress performance measures, which will be in use by then. There will be a wide and comprehensive consultation in the autumn on the illustrative regulations before they are finalised. This will give the sector, as well as Parliament, the chance to fully understand them, submit views and inform decision making.

10. Minor amendments to the regulations may need to be made each year as the long standing performance tables on which they are based can vary from year to year. Key stage 2 performance results (for primary schools) and GCSE results (for secondary schools) are finalised and published at different times of the year so the regulations may need to be changed twice each year to take into account changes in each. These changes will be no more than minor and technical. Changes to the exact thresholds in the definition may also need to be made from time to time to reflect shifts in performance nationally.

11. If in future, we need to make substantive changes to what constitutes coasting because of changes to the wider accountability framework (although this not anticipated at the moment) these wider changes will themselves have been consulted on very extensively within the sector and beyond. Consistent with the use of a regulation making power to define coasting schools is the fact that the wider accountability framework is non-statutory and not determined in legislation, and the system of performance tables on which it is based, works well and is accepted and understood by the sector.

Rationale

12. In keeping with most delegated legislation in the field of education, we take the view that the regulations should be subject to the negative resolution procedure. This is considered appropriate given the technical and administrative nature of the

provision as described above and the likely need for frequent minor changes. The power is analogous to that given in section 94(1) of the Education and Skills Act 2008, which allows the Secretary of State by regulations to prescribe standards that independent schools must meet in order to be registered (without which they cannot legally operate). Those regulations are similarly made by the negative procedure. We therefore do not think that the extra burden on Parliamentary time that would result from making affirmative regulations is justified here.

Schools causing concern: conversion into Academies

Clause: 7(2) – duty to make Academy orders Duty conferred on: the Secretary of State Duty exercisable by: administrative order Parliamentary procedure: none

Purpose

This clause turns the power enabling the Secretary of State to make an Academy order in respect of a maintained school that is eligible for intervention because it has been rated Inadequate by Ofsted into a duty, so removing her discretion as to whether to make an order.

13. Currently section 4(1) of the Academies Act 2010 (‘the 2010 Act’) gives the Secretary of State a discretionary power to make an Academy order in respect of a maintained school in England. An Academy order is not legislative in nature but has effects in relation to the individual school concerned. Principally it requires the local authority to cease to maintain the school on the ‘conversion date’ (the date on which the new Academy opens). It can also have other effects, in particular deeming various regulatory requirements to be satisfied at the point of conversion. Clause 7(2) will insert a new subsection (A1) into section 4 so that if a maintained school in England has been judged by the Chief Inspector to be inadequate the Secretary of State must make an Academy order.

14. The purpose of changing this power to a non-discretionary duty is to ensure that it is clear that the solution for this group of inadequate schools is that they will become Academies. This gives them the support of a sponsor, and ensures that they

are subject to swift intervention to achieve conversion to Academy status. The discretionary power to make an Academy order in other circumstances will remain (and those other circumstances will be extended by clause 7(3) discussed below).

Justification

15. Academy orders are largely administrative and technical and contain a level of detail not suitable for Parliamentary scrutiny. Section 4(6) of the Academies Act 2010 therefore dis-applies the general provision that all order-making powers in education legislation are exercised by statutory instrument. Section 4(4) of the 2010 Act requires the Secretary of State to serve copies of Academy orders on those directly affected by them.

16. The nature and effects of an Academy order under the new section 4(A1) will be the same as those of a discretionary Academy order made under section 4(1)(a) of the 2010 Act, with two exceptions. By virtue of clause 8, the making of an order under the new section 4(A1) will remove the duty of the school’s governing body to consult about whether the school should become an Academy. This is because the fact that the school requires significant improvement or special measures, and has therefore been judged inadequate by Ofsted is sufficient justification for the school to convert. The making of such an order will also trigger the duty created by clause 10 requiring the governing body and local authority to take all reasonable steps to facilitate conversion, including cooperating with the chosen sponsor if there is one. Neither of these new effects alters the essentially non-legislative nature of the Academy order itself.

17. Clause 7(3) removes the Secretary of State’s existing discretionary power to make an Academy order where a school is judged inadequate by Ofsted because in those circumstances there will be a duty to make such an order as a result of clause 7(2).

Rationale

18. Academy orders already exist without Parliamentary scrutiny but this clause places the Secretary of Stare under a duty, rather than a discretion, to make them when a school has been rated Inadequate by Ofsted. An Academy order is an administrative instrument making detailed provision concerning the circumstances of an individual school. It would not be possible to include those provisions in an Act of Parliament and inappropriate for them to be made in the form of a statutory instrument subject to Parliamentary scrutiny.

Clause: 11 – power to give directions to do with conversion Power conferred on the Secretary of State Power exercisable by: administrative directions Parliamentary procedure: none

Purpose

Where an Academy order has been made, this clause will provide the Secretary of State with the power to direct the governing body or local authority to take specified steps to facilitate the conversion of the school into an Academy.

19. Where the Secretary of State has made an Academy order under the new section 4(A1) of the 2010 Act, as inserted by clause 7(2), clause 11 will give her the additional power to direct the governing body or local authority to take specified steps to facilitate conversion into an Academy.

Justification

20. This power is intended to support the general duty of the governing body and local authority (created by clause 10) to facilitate the conversion. In the course of this process the Secretary of State may become aware of specific steps that need to be taken by the governing body or local authority and have not yet been taken. This may be because the governing body or local authority are not aware of the need or because they are not being sufficiently diligent in facilitating the conversion. This clause therefore enables the Secretary of State to give directions in the

appropriate level of detail to ensure that all the necessary steps are taken and the process is not unduly delayed.

Rationale

21. Even more than an Academy order, any such directions will be non-legislative in nature and will concern the detailed circumstances of he individual school. The most practical and appropriate means of achieving this is therefore by giving the Secretary of State a power to make administrative directions not subject to any Parliamentary procedure.

Clause: 12 – power to revoke an Academy order Power conferred on: the Secretary of State Power exercisable by: administrative directions Parliamentary procedure: none

Purpose

This is a “tidying up” clause which gives the Secretary of State the power by order to revoke an Academy order made in respect of a school which was eligible for intervention. The purpose of the clause is to ensure that no governing body or local authority is left under a duty which it cannot comply with because there is no longer an intention to convert the school.

22. In light of the duty created by clause 10, the Secretary of State also has the power to revoke an Academy order so that the duty can be brought to an end. This power is necessary for those circumstances where conversion of the school to an Academy is no longer appropriate and so the governing body or local authority is no longer required or able to facilitate conversion.

Justification

23. This power is intended to ensure that the governing body of a school and the relevant local authority are not subject to a duty to take steps to facilitate an outcome that is no longer pursued. Examples of where an Academy order may need to be revoked include where the Secretary of State decides a school is not viable and should close or where a school has gone from outstanding to inadequate due to a specific safeguarding concern but that concern has been resolved quickly. The power could not be used after a funding agreement has been signed. The effect of an Academy order is to enable the school to be converted into an Academy: therefore, an Academy order is redundant after a funding agreement is signed, as is the duty on the governing body and local authority to facilitate Academy conversion. There is no restriction within the clause as to the circumstances in which the Secretary of State can revoke an Academy order: present Government policy is that they will be revoked rarely and only in exceptional circumstances.

Rationale

24. In the same way that there is no legislative procedure for the making of an Academy order, its revocation should be an administrative instrument. It is natural that the making and revoking of orders should use the same procedure. The order will concern the detailed circumstances of the individual school making it inappropriate for it to be made in the form of a statutory instrument subject to Parliamentary scrutiny. Requiring revocation orders to be made by statutory instrument could lead to unnecessary and costly delays. For example governing bodies and local authorities would be required to take steps to facilitate conversion (e.g. preparing information about the ownership of the school site) while the Parliamentary procedure is being followed despite it being known that these steps will not be needed as Academy conversion will not take place. As with the making of an Academy order, the most practical and appropriate means of its revocation is therefore by giving the Secretary of State a power to make administrative directions not subject to any Parliamentary procedure.

Adoption

Clause: 13(2) – power to give directions requiring arrangements Power conferred on: the Secretary of State Power exercisable by: administrative directions Parliamentary procedure: none

Purpose

This gives the Secretary of State the power to give directions to local authorities in England to require them to make arrangements with one of the local authorities who are the subject of the direction or another adoption agency for any or all of the functions specified in the new section 3ZA(3) to be carried out on their behalf.

25. Clause 13(2) inserts into the Adoption and Children Act 2002 a new section 3ZA(1). The Secretary of State can name the specific local authority or other adoption agency who will be carrying out the functions, or she can require the local authorities to determine themselves which agency should do this. The functions specified are the recruitment, assessment and approval of prospective adopters, decisions as to whether a child should be placed with a particular prospective adopter and the provision of adoption support services.

26. The directions may make different provision for different purposes (3ZA(5)). For example, the Secretary of State could direct that arrangements should be made for specific functions to be carried out on the local authorities’ behalf in relation to a particular group of children, for example recruitment of adopters for disabled children. This would ensure that the specified functions are delivered more effectively for that particularly category. The clause also provides for the Secretary of State to require a local authority in England to terminate any arrangements made in accordance with an earlier direction.

Justification

27. Our intention in introducing regional adoption agencies is to work with the sector as far as possible to do this organically so that the transition builds on existing relationships. In 2015-16, we are providing £4.5m of start-up funding to support early adopters of the programme to accelerate their development and early implementation. This power is therefore a backstop measure that will only be used to direct local authorities that fail to engage appropriately with the programme, despite having the opportunity to do so.

28. Any decision the Secretary of State makes to use this power will be made following extensive discussions with the agencies involved, and will be proportionate and reasonable. Prior to making a final decision on whether to issue a direction of any kind, the Secretary of State would send a letter to any relevant local authority and/or other adoption agency seeking their views and requesting supporting evidence. Agencies will have ample opportunity to design their arrangements before any directions are considered. We do not envisage using the powers before 2017- 18. We consider this an appropriate length of time for the sector to demonstrate their appetite for this change.

Rationale

29. No Parliamentary procedure is proposed, as is usual for such powers. The clause replaces section 3A of the 2002 Act which contains similar direction-making powers which are also not subject to any Parliamentary procedure. In addition section 3A (Wales: joint arrangements) provides for directions to be made requiring one or more local authorities in Wales to enter into arrangements with each other in relation to certain specified functions and these directions are also not subject to any Parliamentary procedure. The directions are administrative in nature as they concern the way functions are carried out rather than being of a legislative nature.

Clause: 13(2) – power to specify functions Power conferred on: the Secretary of State Power exercisable by: regulations made by statutory instrument Parliamentary procedure: affirmative resolution

Purpose

This clause enables the Secretary of State to amend the list of specified functions in subsection (3) by regulations.

Justification

30. This regulation making power will enable the Government to respond to evidence and any issues arising from any directions made under 3ZA(1) and ensure that the necessary and appropriate functions are capable of being covered by directions under 3ZA(1).

Rationale

31. Given the nature of the functions in question, it is appropriate for the exercise of this power to be subject to further Parliamentary scrutiny in advance. Therefore these regulations will be subject to the affirmative procedure in order to ensure the appropriate Parliamentary scrutiny for regulations that will add to a list of functions that are specified on the face of the Bill.

General

Clause: 15 (1) – power to make transitional and saving provision Power conferred on: the Secretary of State Power exercisable by: regulations made by statutory instrument Parliamentary procedure: affirmative for regulations that amend or repeal a provision made by an Act and no procedure for any other regulations made under this power

32. Clause 15(1) gives the Secretary of State the power to make transitional or saving provision in connection with the coming into force of the Act. This is a standard power to enable the changes made by the Bill to be implemented in an orderly manner. Such powers are often included as part of the power to make commencement orders (for example, section 19(3) of the Academies Act 2010) and, as such, are not subject to any Parliamentary procedure on the grounds that

Parliament has already approved the principle of the provisions in the Bill by enacting them. Although the power is drafted as a free-standing one in this Bill, the same principle applies and accordingly the power is not subject to any Parliamentary procedure.

Clause: 14(2) – power to make consequential provision Power conferred on: the Secretary of State Power exercisable by: regulations made by statutory instrument Parliamentary procedure: affirmative resolution (where regulations amend or repeal primary legislation); negative resolution (otherwise)

33. Clause 1515(2) gives the Secretary of State the power to make provision by regulations that is consequential on any provision of the Act. Such regulations may amend, repeal, revoke, or modify primary and/or secondary legislation which was made before the end of the session in which the Education and Adoption Bill is passed.. This is to ensure that the policy set out in the Act can be given full effect, including where it is necessary to amend other Acts for that purpose. Three consequential amendments have already been identified on the face of the Bill, but given the plethora of existing education legislation this power is useful to ensure that the legislation as a whole is still consistent and coherent, for instance, if definitions in existing statute no longer make sense or if a new legal provision makes existing law redundant. The use of such a power is well precedented (a recent example being section 48 of the Counter-Terrorism and Security Act 2015). Its scope is kept narrow by the requirement that the provision must be consequential on a provision of the Act, so that it can only be used to achieve the policy endorsed by Parliament in approving the Bill. In accordance with normal practice, the affirmative procedure will be required for any regulations under this power that amend or repeal primary legislation. In other cases the negative procedure is traditional and is sufficient in this case.

Clause: 16(2) – commencement power Power conferred on: the Secretary of State Power exercisable by: regulations made by statutory instrument Parliamentary procedure: none

34. Clause 16(2) contains a standard power for the Secretary of State to bring provisions of this Bill into force by commencement regulations. This allows the provisions to be brought into force at a convenient time. An instrument made with this power will merely be to bring into force provisions that will already have been considered and approved by Parliament as part of the Bill, and therefore, as usual with commencement powers, no additional Parliamentary scrutiny is provided for.

Department for Education