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Provisions About Children and Young EDUCATION AND ADOPTION BILL DELEGATED POWERS MEMORANDUM BY THE DEPARTMENT FOR EDUCATION 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. 1 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 2 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. 3 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 4 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.
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