24th Report, 2012 (Session 4) Subordinate Legislation

SP- Paper 126 (Web Only)

SL/S4/12/R24

24th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Rob Littlejohn

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 15 May 2012, the Committee agreed to draw the attention of the Parliament to the following instrument—

Education (School and Placing Information) (Scotland) Regulations 2012 (SSI 2012/130).

2. The Committee’s recommendations in relation to that instrument are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Education (School and Placing Information) (Scotland) Regulations 2012 (SSI 2012/130) (Education and Culture Committee)

4. These Regulations revoke and consolidate, with modifications, the Education (School and Placing Information) (Scotland) Regulations 1982. They prescribe the types of information which education authorities must supply in relation to schools, and the manner in which it is to be supplied. They also make provision about the information to be supplied in relation to placing requests.

5. The Regulations are subject to the negative procedure and come into force on 8 December 2012.

6. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 1.

7. Regulation 17 applies to children having additional support needs, in respect of whom different provision is made in relation to placing requests. Where an education authority has to inform a child’s parent of the general effect of the authority’s duty to comply with placing requests and the circumstances in which that duty does not apply, it must notify the parent in writing (regulation 17(2). Regulation 17(3) prescribes the content of the notification, and in particular regulation 17(3)(a) provides that “the information required to be given in terms of paragraph 2 of schedule 2 to the [Education (Additional Support for Learning) (Scotland) Act 2004]” must be included. However, it does not appear to the Committee that paragraph 2 of schedule 2 requires, of itself, the provision of any information.

8. The Scottish Ministers advise that “in effect” regulation 17(3)(a) requires authorities to inform parents of the authority’s duties under paragraph 2. They are unable to offer any interpretation whereby paragraph 2 itself requires certain information to be provided. It appears from their written response that the notification is supposed to provide a written explanation of the general effect of the authority’s duties under paragraph 2. In the Committee’s view, paragraph 2 does not require the provision of any particular information. To that extent, it does not appear that the requirement will ever be engaged: if no information requires to be provided, none can be included in the notification.

9. The Scottish Ministers pray in aid regulation 17(2)(a), as regulation 17 only comes into play when the authority is required by the 1980 Act to inform a parent of the general effect of paragraphs 2 and 3, with regulation 17(2) providing that that information is to be given in writing. It accordingly appears to the Committee that, taking the regulation as a whole, parents will still receive the information. However, this is not entirely clear on the face of the regulation, and regulation 17(3)(a) suggests that there is specific information to be given in terms of paragraph 2 when this is not the case.

10. For these reasons, the Committee considers that the meaning of regulation 17(3)(a) could be clearer.

11. The Committee draws the instrument to the attention of the Parliament on reporting ground (h) as the meaning of regulation 17(3)(a) could be clearer. It provides that a written notification must include information which is required to be given in terms of paragraph 2 of schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004. However, paragraph 2 does not impose any duty to provide information, and it appears that the intention is instead that the written notification should include an explanation of the general effect of that paragraph.

NO POINTS RAISED

12. At its meeting on 15 May 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Health and Sport Committee

Food Protection (Emergency Prohibitions) (Dalgety Bay) (Scotland) Order 2012 (SSI 2012/135)

Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Amendment Rules 2012 (SSI 2012/132)

APPENDIX 1

Education (School and Placing Information) (Scotland) Regulations 2012 (SSI 2012/130)

On 4 May 2012, the Scottish Government was asked:

1. To explain why these Regulations have been made in the exercise of the general powers contained in sections 2 and 28B(1)(a)(ii) and (3) of the Education (Scotland) Act 1980, when it appears that sections 28I to 28K of that Act contain more specific powers which might have been exercised for that purpose, and in particular to explain what provision is being made in exercise of the section 2 power;

2. Regulation 17(3)(a) requires that a notification include “the information to be given in terms of paragraph 2 of schedule 2 to the 2004 Act”. Standing the terms of paragraph 2 of schedule 2, which does not appear to oblige an education authority to provide any information, the Scottish Government is asked to explain what information is to be given to meet the requirements of regulation 17(3)(a).

The Scottish Government responded as follows:

1. The Scottish Government has made these Regulations under sections 2 and 28B(1)(a)(ii) and (3) of the Education (Scotland) Act 1980 ("the 1980 Act") in preference to using the enabling powers set out in sections 28I to 28K of that Act because sections 2 and 28B(1)(a)(ii) and (3) are considered to be more specifically tailored to the purposes of the instrument for the reasons set out below.

The scope of section 28I of the 1980 Act is too narrow to enable all aspects of these Regulations to be prescribed for the following three reasons.

Firstly, section 28B(3) of the 1980 Act enables Scottish Ministers to prescribe the procedure in accordance with which education authorities are to carry out the duties imposed on them by section 28B(1). (Those duties relate to the publishing or otherwise making available information relating to the matters set out in section 28B(1), informing parents of the school in which the authority intends to place the parent’s child, the formulation of guidelines and the supply of any prescribed or determined information about any school to parents on request). This aspect of the enabling power has been relied upon in these Regulations in connection with information to be provided to parents about placing requests. In particular, regulations 15 to 18 prescribe the procedure to be followed by authorities in advertising certain matters relating to placing requests, notifying parents of the right to make placing requests in respect of certain children and children having additional support needs and in giving information on receipt of a placing request. Such provision about the procedure for placing requests could not have been made within the scope of the enabling powers set out in section 28I.

Secondly, section 28B(3)(c) enables the Scottish Ministers to make provision for the determining of the kind of information which is to be published or which is to comprise the information made available or supplied to parents. This aspect of the enabling power has been relied upon in regulations 7(2), 8(2)(b), 8(5), 10(1)(b) and 15(3)(e) to make provision to allow an education authority to determine any other information to be made available or supplied. The enabling powers set out in section 28I are not wide enough to enable provision of this nature to be made.

Thirdly, section 28I(10) of the 1980 Act provides that section 28I does not apply to nursery schools. Whilst provision is made at the end of Part I of Schedule 1 to these Regulations to disapply that Part to nursery schools, provision is made in paragraphs 13(k) and 13(s) of Part III of Schedule 1 to these Regulations requiring information to be provided in relation to nursery schools. The enabling powers set out in section 28B apply to all schools under the management of education authorities. Section 135 of the 1980 Act makes it clear that the term “school” where used without any qualification includes any such school or all such schools as the context may require. Accordingly, making available information about nursery schools falls within the scope of the powers in section 28B but out-with the scope of the enabling powers in section 28I.

The powers in section 28I have been used to make one set of regulations, the Education (Provision of Information as to Schools) (Scotland) Regulations 1993 (no. 1605).1 Those regulations, which will be revoked on 30 May 2012, require education authorities and the managers of independent schools and grant-aided schools to provide the Scottish Ministers with statistical information about schools.2 These powers have never been used in relation to provision of information to parents. Section 28I(8) makes it clear that nothing in sections 28I to 28K restrict or otherwise affect any other powers which the Scottish Ministers may have to make regulations with respect to, or otherwise require, the provision of information by any person. It is clear from section 28I(8) therefore that sections 28I to 28K were not intended to affect the enabling powers in section 28B in so far as they enable provision to be made for information to be provided to parents.

Section 28J of the 1980 Act is concerned with information or documents relating to school education and enables the form, manner and when the information or documents are to be provided to be prescribed. As is the case with section 28I of the 1980 Act, this section does not provide the power to prescribe the procedure by which the information or documents are to be published or made available. It is accordingly also too narrow for the purposes of these Regulations.

Section 28K of the 1980 Act is only concerned with information regarding pupils attending schools. This would not cover all of the types of information required to be provided under these Regulations.

Section 2 of the 1980 Act has been relied upon for the following reasons. Regulation 8(4)(b) of these Regulations includes a requirement to make school information available to a pupil over school age in attendance at the school who requests it. The enabling powers in section 28B(3) enable the Scottish Ministers to make provision about publishing or making information available and the kind of information to be published or made available to parents only. Section 2 of the 1980 Act is therefore relied upon as the enabling power to provide for authorities to make information available to pupils. Section 2 enables regulations to "prescribe standards and requirements to which every education authority shall conform in discharging their functions under section 1". Section 1 of the 1980 Act imposes the duty on every education authority "to secure that there is made for their area adequate and efficient provision of school education and further education". Section 2 is therefore being relied upon to require education authorities, as part of their general duty to secure adequate and efficient school education, to provide information to pupils upon request.

The original provision which regulation 8(4)(b) replicates is regulation 9(3) of the Education (School and Placing Information) (Scotland) Regulations 1982 (No. 950). This was inserted into those regulations by the Education (School and Placing Information) (Scotland) Amendment, Etc., Regulations 1993 (No.1604) (“the 1993 Regulations”) by virtue of the enabling power in section 2. (It is noted that the powers set out in section 28I of the 1980 Act were available at the time the 1993 Regulations were made but weren’t relied upon.)

It is considered that section 28I of the 1980 Act would not have been suitable to make provision allowing information to be provided to pupils because it would have been too narrow to enable regulation 8(5) to have been made for the purposes of making available such other information to pupils as an authority thinks fit.

2. Regulation 17(3)(a) requires the notification of a parent’s right to make a placing request relating to a child with additional support needs to include 'the information required to be given in terms of paragraph 2 of schedule 2 to the 2004 Act'. This, in effect, requires the education authority to inform parents of the fact that it is the authority's duty to place the child in the school specified in the request, (that being a special school, willing to admit the child, in England, Wales or Northern Ireland or a school which would provide education for children under school age or pre-school by arrangement by the authority) subject to paragraph 3 of schedule 2 of the 2004 Act (which sets out the circumstances in which the duty does not apply) and that it will be the education authority's duty, subject also to paragraph 3, to meet the fees and other necessary costs of the child's attendance at the specified school. Finally, where the placing request relates to two or more schools, the education authority are required to advise the parent that the duty applies to the first mentioned school, which is to be treated as the specified school for the purposes of the placing request.


Footnotes:

1 They are also cited in the Self-Governing Schools (Application and Amendment of Regulations) (Scotland) Regulations 1994 (no. 351) because those regulations amended the Education (Provision of Information as to Schools) (Scotland) Regulations 1993 to apply them to self-governing schools.

2 To be revoked by the Education (Provision of Information as to Schools) (Scotland) Revocation Regulations 2012 (no. 129).

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