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Education Act 2002


Sections 210 to 217
Section 210: Orders and regulations

403.This section contains general provisions about orders and regulations under the Act.

404.All orders or regulations under the Act are to be made by statutory instrument except for an order made by the Secretary of State or the NAW under paragraph 3(6) or 5 of Schedule 1, an order made by the Secretary of State or the NAW under section 165 in respect of a failure to meet standards in an independent school, or an order by the NAW under section 192 requiring proposals to secure regional provision.

405.In England, affirmative resolution procedure is required for an order adding to the basic curriculum (section 80(3)), altering the key stages or the core or foundation subjects (section 82(4)(b), 84(6) or 86), amending the areas of learning for the foundation stage (83(3)) or specifying subsidiary provision in respect of the STRB provisions (125(4)).

406.All other statutory instruments made by the Secretary of State have to follow the negative resolution procedure, apart from exemptions for schools related to performance, educational programmes under the National Curriculum, assessment arrangements in respect of all key stages, disapplication of pay and conditions orders for teachers in schools in Education Action Zones, or commencement orders, where no parliamentary procedure is required. In addition, if an order is made in respect of teachers’ pay and conditions which gives effect, without significant modification, to recommendations of the STRB, no parliamentary procedure is required.

Section 211: Wales

407.Most of the functions of the Secretary of State under education legislation have, so far as they relate to Wales, been transferred to the NAW by Order in Council under section 22 of the Government of Wales Act 1998 (c. 38). Textual amendments to reflect this have not been made to the legislation. The legislation, therefore, continues to refer to the Secretary of State only, but references to the Secretary of State have to be read, in relation to Wales, as references to the NAW.

408.Subsection (1) of this section ensures that where the Act confers a new function on the Secretary of State by amending another Act, this new function is exercisable in relation to Wales by the NAW, and references in the provisions concerned to the Secretary of State are read, in relation to Wales, as references to the NAW.

409.Subsection (2) of this section then ensures that, where functions under any Act have already been transferred by an Order in Council under section 22 of the Government of Wales Act 1998 and an amendment conferring further functions on the Secretary of State is made to that Act by the Act, any powers to vary or revoke the transfer of functions to the NAW also apply to the new functions conferred by the Act.

Section 214: Transitional provisions etc.

410.This enables regulations made under the Act to make such provision as appears to the Secretary of State or the NAW necessary or expedient for the general purposes, or any particular purpose or for giving full effect to the Act. In particular, they may make provision including modifications for any provision which comes into force before another provision comes into force, or before anything which has to be done under another provision has been done.

411.Regulations may also be made for amending, repealing or revoking a statutory provision passed before the Act is passed, for applying such provision, and for making savings from any amendment or repeal by the Act.

Section 215: Minor and consequential amendments and repeals

412.Section 215 introduces Schedule 21 which contains a number of minor amendments and a number of amendments consequential on other provisions of the Act.

413.Paragraphs 13 and 16 of the Schedule repeal sections 23(4)(b), 39, 40, 41 and 42 of the FHEA which relate to the transfer of FE colleges from institutions maintained by LEAs to independent corporations financed by the Further Education Funding Councils now replaced by the LSC and the NCETW. They were introduced to provide new FE corporations with a safeguard against entering into unfair contracts with LEAs with whom they felt disadvantaged in negotiations for transfer of land. The provisions provided for the Secretary of State’s, or the NAW’s consent where the LEA was seeking to exclude the transfer of land, or were seeking to enter into a contract, with a third party, to the value of £50,000 or more which would bind the institution in the future. College governing bodies’ experience means they are able to protect their own interests without the Secretary of State’s, or the NAW’s, support. Further, these provisions are considered to be obsolete given that there are no longer any LEA controlled institutions to which these sections apply.

414.Paragraph 20 amends section 54(1) of the FHEA to correct an incorrect reference. Paragraph 21 repeals section 60 of the FHEA which serves no useful purpose.

415.Paragraphs 31 and 32correct incorrect references in the Employment Rights Act 1996 to governors.

416.The remainder of the paragraphs make minor amendments consequential on the new provisions in the Act, as follows:

  • to the Disability Discrimination Act 1995, Education Act 1994, EA 96, SIA, SSFA and Freedom of Information Act 2000 consequential to the requirement on nursery schools to have governing bodies, and the requirement for nursery schools to be treated like maintained schools for most purposes including the legislation relating to SEN;

  • to the Sex Discrimination Act 1975, EA 96, SIA, SSFA and LSA consequential to the changes to school organisation in the Act. In particular as there are now a number of statutory routes which affect school organisation it changes references to the various legislative references to statutory proposals about school organisation to a reference to “any enactment”;

  • to the Local Government Acts 1972 and 1974, the Disability Discrimination Act 1995, Tribunals and Inquiries Act 1992, EA 96, SIA, and SSFA consequent to the changes made by Part 3 of the Act in respect of school governance, financing admissions and exclusions;

  • to the POCA consequent to the new right of the proprietor of an independent school to appeal to the tribunal established under that Act, and to the repeal and replacement of section 218 of ERA;

  • to the Public Passenger Vehicles Act 1981 consequent on the amendments in schedule 19 of the Act to education transport provisions;

  • to a range of education legislation consequent on the rationalisation of the grant making powers;

  • to ERA, EA 96 consequent to the potential changes to KS4 made possible by section 86 of the Act;

  • to the Children Act 1989, Police Act 1997, the Environmental Protection Act 1990, the Education Act 1994, the Further and Higher Education Act 1992, the Teaching and Higher Education Act 1998, the SSFA and Criminal Justice and Court Services Act 2000 consequent on the repeal and replacement of section 218 of the Education Reform Act 1988;

  • to the FHE 92, EA 96, and SSFA consequent on the repeal and replacement of the STPCA 1991;

  • to the Disability Discrimination Act, the Employment Rights Act, EA 96 and the SSFA consequent to the new provisions in the Act about governance;

  • to the definition of pupil in EA 96 consequent on the new governing body powers to provide community facilities;

  • to the EA 96, EA 97 consequent on the creation of separate National Curricula for England and Wales;

  • to the LSA consequent on the changes to schools financing;

  • to the THEA consequent on the new provisions about prohibition from teaching etc.

Section 216: Commencement

417.Substantive provisions dealing with five subjects will come into force on Royal Assent. These are the powers of the Secretary of State to form companies, exclusions from PRUs, application of pay scale, student loans and LEA functions relating to qualifications.

418.Section 216 identifies the sections which only the Secretary of State may commence (either because they only apply to England or because they are matters such as teachers pay and conditions where delegated powers have not been devolved to the NAW). It also identifies the sections which only the NAW may commence (because they only apply in Wales). All other sections may be commenced by the Secretary of State in relation to England and the NAW in relation to Wales. Commencement Orders (which do not require any parliamentary procedure – see section 210(5)) may make general or specified provision, different provision for different purposes, and may contain transitional and savings provisions.

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