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EDUCATION AND LIBRARIES BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

  1. This Explanatory and Financial Memorandum relates to the Education and Libraries Bill. It has been prepared by the Department of Education in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

  2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require comment none is given.
    3. BACKGROUND AND POLICY OBJECTIVES

  3. The primary purpose of the Bill is to provide the Department with an enabling power to introduce a single common formula for the calculation of school budgets for all schools funded under Local Management of Schools (LMS) arrangements. The Bill also contains a range of other provisions on education matters which introduce technical or minor amendments to existing legislation, the need for which has been identified over a period by a variety of sources.

    4. LOCAL MANAGEMENT OF SCHOOLS (LMS) (CLAUSES 1 - 7)

  4. The current arrangements provide for each Education and Library Board (ELB) to prepare an LMS Scheme applicable to those schools which it funds under LMS arrangements, taking account of any guidance issued by the Department and, following consultation with schools and the Council for Catholic Maintained Schools (CCMS), submit it to the Department for approval. In the case of voluntary grammar schools and grant maintained integrated schools the Department consults direct with those schools on the formula to be used.

  5. The fact that there are 7 different formulae has given rise to differences in the levels of funding of schools. The key objective in introducing the common formula is to remove these inequities so that schools of similar size and characteristics receive a similar level of funding. This can only be achieved through the application of a common formula.

  6. It is intended that the Department will, in a common LMS Scheme, prescribe the formula to be used, how each factor is to operate and the values or tariffs to apply to each factor. The legislative provision now proposed will provide the Department with the power to require ELBs to adopt the common funding scheme including the operation of the various factors within the formula.

    7. OTHER PROVISIONS

  7. As indicated above the opportunity is being taken to incorporate in the Bill a number of other provisions and amendments to existing education legislation. These provisions can be grouped under the following generic headings:-

    8. A. Best Value (Clauses 11-14)

    Amendment to replace current provisions relating to compulsory competitive tendering of specified ELB services with a statutory duty on ELBs to deliver best value in the exercise of their functions.

    B. Improve the operation of certain elements of the education system for the benefit of pupils/parents/ELBs/Department

    Amendment to enable schools admissions appeal tribunals, where appropriate, to sit in private(Clause 18).

    Amendment to enable parents to list all their school preferences for admissions to pre-school education on one form and to be processed as for primary and secondary school admissions(Clause 19).

    A new provision to make regulations to enable the Department, in exceptional circumstances, to remove from office all voting and co-opted members of the Board of Governors of a school(Clause 21).

    An amendment to clarify that a Board of Governors, teaching staff and parents should be consulted prior to the publication of a development proposal(Clause 22).

    Amendment to allow that regulations may provide for school expulsion appeals panels to have regard to matters specified in regulations, and to enable the tribunals, where appropriate to sit in private(Clause 23).

    Amendments to allow that regulations may provide for curriculum complaints tribunals to have regard to matters specified in the regulations, and to enable the tribunals, where appropriate to sit in private(Clause 24).

    Amendment to enable consultations with schools to take place by representative sampling instead of all affected schools, before making regulations relating to the setting of performance targets by schools and the provision of information about pupils' performance(Clause 25).

    Amendment to permit controlled school principals to serve on other ELBs' Teaching Appointments Committees(Clause 29).

    Amendment to require ELBs and educational institutions including schools to provide information to the Department of Education (DE), the Department of Culture, Arts and Leisure (DCAL) and the Department of Employment and Learning (DEL) which is necessary for their compliance with legislation other than the Education Orders(Clause 35).

    C. Provide for the greater delegation of authority from the Department to ELBs

    Amendment to reduce the Department's role in the determination of the conditions and rates of travelling and subsistence allowances payable to ELB members(Clause 27).

    An amendment to reduce the Department's role in the determination of travelling, or other expenses, incurred by any person making an official visit on behalf of an ELB(Clause 27).

    Amendment to reduce the Department's role in determining the expenses payable to persons attending conferences (Clause 27).

    Amendment to refine funding Departments' roles in the appointment of the Chief Executive and Chief Librarian to each ELB(Clause 28).

    Amendment to remove the requirement for the Department to approve ELB's annual training programmes(Clause 30).

    D. Strengthen elements of children's rights

    New provision to place a general duty of care on Boards of Governors for the safety and welfare of the children in their charge(Clause 15).

    New provision to require schools to have a written child protection policy which complies with current guidance from the Department(Clause 16).

    New provision to require schools to have a written anti-bullying policy which complies with current guidance from the Department(Clause 17).

    Addition to enable Key Stage 4 pupils to receive (all, or part of) their secondary education in further education colleges, even if they are not on the roll of a school(Clause 32).

    A repeal of existing legislation to extend the abolition of corporal punishment to independent schools to comply with the judgement of the European Court of Human Rights(Clause 34).

    E. Access to the special education system for pupils from outside Northern Ireland

    New provision to enable the ELBs, subject to certain conditions, to arrange the admission to special schools of children resident in the Republic of Ireland or Great Britain on a fee paying basis(Clause 20).

    F. Technical amendments

    Amendment, as a consequence of the introduction of 'accruals accounting', for ELBs to submit Resource Allocation Plans to the funding Departments, providing details of the planned use of accrued resources over the various ELB services(Clause 8).

    Amendment, in recognition of the change to accruals accounting, to allow funding Departments to pay ELBs such amounts as funding Departments think necessary to meet expenditure incurred or to be incurred(Clause 9).

    Given the ELB move to accruals accounting, an amendment will be introduced which will cover the way ELBs maintain their books of account, prepare and submit accounts and lay annual reports before the Assembly(Clauses 10 and 36).

    Amendment to provide statutory cover for certain legitimate costs in relation to schools' Public Private Partnerships (PPP) contracts(Clause 26).

    Amendment to permit the full Council for Catholic Maintained Schools to be reconstituted on a four year cycle instead of the two staggered four year cycles currently required(Clause 31).

    Amendment to clarify the authority of the General Teaching Council for Northern Ireland to fix fees and the extent of the regulations prescribing its professional misconduct procedures(Clause 33).

    Amendment to revise arrangements in relation to the publication and laying of the Staff Commission's annual reports and Accounts(Schedule 2, paragraph 4).

    Amendment to replace an incorrect reference to section 18 of the Interpretation Act (Northern Ireland) 1954 - the reference should be to section 2.(Schedule 2, paragraph 9).

    OTHER DEPARTMENT INTERESTS

  8. Of the proposed provisions, several apply to DCAL and DEL insofar as they relate to functions for which those Departments are responsible. Both Departments have agreed these amendments. The relevant provisions are:-

CONSULTATION

  1. The provisions in the Bill will provide the Department with an enabling power to allow it to require ELBs to adopt the single common formula. The Bill will not prescribe the formula itself. The principle of a single common formula has already been agreed and is an objective of the Programme for Government. In respect of the detailed proposals for a common formula, a consultation document was published by the Minister on 5 April 2001 and the consultation period extended to 21 September. The Education Committee produced a Report on this issue which was debated by the Assembly on 15 January 2002. The comments received through the consultation process will be taken into account in the development of the formula.

  2. In the case of the Best Value provisions, the Department has had regard to the detailed consideration given to this issue in the context of the Department of the Environment (DOE) Local Government (Best Value) Act 2002 which was itself the subject of extensive consultation. The provisions proposed adopt a similar approach in providing a statutory underpinning for the work in progress by the ELBs on Best Value but without prescribing detailed procedural arrangements. In this respect the ELBs established a Best Value Project Board in 1999 on which the Department and Trade Union side are represented. The objective of the Board was the development of a Best Value regime on a voluntary basis pending the introduction of a legislative base. Within this forum there has been extensive discussion and consultation on the application of Best Value to ELB services. On implementation of the legislation the Department will continue to consult extensively with the ELBs on the practical outworking of the Best Value principles with the aim of ensuring that key services are subjected to a value for money scrutiny, whilst avoiding the imposition of an unnecessary bureaucratic process.

  3. As for consultations in relation to the other provisions contained in the proposed Bill:

OVERVIEW

  1. The Bill has 42 clauses and 3 Schedules to address the range of provisions outlined above.

COMMENTARY ON CLAUSES

Clause 1 - The common funding scheme for grant-aided schools

Clause 1 replaces Articles 46(1) and (3) and Articles 47 and 48 of the Education Reform (Northern Ireland) Order 1989 which are repealed.

Clause 1(1) provides for one common funding scheme for the funding of relevant schools. Prior to the change to a common funding scheme it was the duty of every ELB to prepare a scheme for financing controlled and maintained schools.

Clause 1(2) confirms that a relevant school means a grant-aided school other than a special school or a school established in a hospital.

Clause 1(3) requires the Department to prepare the common funding scheme and enables the Department to vary or replace it in accordance with the subsequent provisions.

Clause 1(4) requires the Department to consult with ELBs, CCMS and such other bodies and persons as it sees fit before preparing a draft common funding scheme. In practice this will involve the Governing Bodies Association in respect of voluntary grammar schools, the Northern Ireland Council for Integrated Education in respect of grant maintained integrated schools and Comhairle na Gaelscolaiochta in respect of Irish Medium provision. The names of these latter three bodies cannot be stated in the legislation because the bodies themselves are non-statutory.

Clause 1(5) requires the Department to send a copy of the prepared draft common funding scheme to each ELB, CCMS and the other consultees for consideration.

Clause 1(6) requires each ELB to consult with the Board of Governors of controlled and maintained schools in its area about the content of the draft scheme and to inform the Department of the outcome of those consultations.

Clause 1(7) requires the Department to consult with the Board of Governors of each voluntary grammar and grant maintained integrated school about the content of the draft scheme.

Clause 1(8) provides for the Department to adopt a common funding scheme with or without modification and to publish a common funding scheme.

Clause 1(9) provides for the common funding scheme to be changed or replaced by a subsequent common funding scheme.

Clause 1(10) confirms that where changes to the scheme are not considered by the Department to be significant, the need for consultation can be waived, before adoption and publication of the scheme.

Clause 1(11) requires each ELB to implement the common funding scheme.

Clause 1(12) provides for a situation in the future whereby responsibility for funding voluntary grammar schools and grant maintained integrated schools transfers to the ELBs, and allows for ELBs to consult with the Board of Governors of these schools in those circumstances.

Clause 2 - Contents of the common funding scheme

Clause 2 sets out what the common funding scheme is to cover.

Clause 2(1)(a) requires the common funding formula arrangements, to be used for calculating individual school budget allocations for a financial year, to be set out in detail in the common funding scheme.

Clause 2(1)(b) provides for the common funding scheme to require each ELB to delegate to the Board of Governors of each relevant controlled or maintained school its budget allocation for each financial year.

Clause 2(1)(c) provides for the Department to include in the common funding scheme such other provisions as are required by this Part or Part VII of the Education (Northern Ireland) Order 1998. Part VII of the 1998 Order re-enacts existing provisions relating to the financing of schools with amendments which transfer responsibility for the funding of voluntary grammar schools and grant maintained integrated schools from the Department to ELBs.

Clause 2(2)(a) provides for the Department to include in the common funding scheme such other provisions as are authorised by this Part or Part VII of the Education (Northern Ireland) Order 1998.

Clause 2(2)(b) provides for the Department to include in the common funding scheme such other provisions as appear to the Department to be necessary or expedient in connection with the funding of relevant schools.

Clause 2(3)(a) defines a school's budget share in respect of a financial year, in relation to a controlled and maintained school, as the amount whose management is delegated to the Board of Governors of a school under the common funding scheme.

Clause 2(3)(b) defines a school's budget share in respect of a financial year, in relation to a voluntary grammar school, as the amount whose management is delegated to the Board of Governors.

Clause 2(3)(c) defines a school's budget share in respect of a financial year, in relation to a grant maintained integrated school, as the amount whose management is delegated to the Board of Governors.

Clause 2(4) defines "formula" as including methods, principles and rules of any description however expressed. The formula does not have to be expressed in purely algebraic form, but it must apply a consistent set of criteria for distributing resources.

Clause 2(5)(a)(i) provides for the common funding formula to take into account, in the case of each relevant school required to be covered by the scheme in any financial year, the number and ages of pupils registered at that school on such date or dates as may be determined by or under the scheme.

Clause 2(5)(a)(ii) provides the power to zero rate particular pupils for funding purposes e.g. pupils who are resident outside Northern Ireland, pupils enrolled in excess of the school's open enrolment policy and pupils in certain reception classes.

Clause 2(5)(b) provides for the common funding formula to include factors affecting the particular needs of certain classes or descriptions of schools, for example, voluntary grammar and grant maintained integrated schools.

Clause 2(5)(c) provides for the common funding formula to take account of relevant factors affecting the needs of individual schools, for example, the number of pupils at a school who are performing below the expected level for their age.

Clause 2(6) provides for the common funding formula to make special provision for the determination of the budget share for the preparatory department of a grammar school.

Clause 2(7) allows for the special provision under clause 2(6) to be that a grammar school having a preparatory department may get substantially less, or nil funding, in respect of the preparatory department.

Clause 2(8) defines the term "preparatory department" in relation to a grammar school as that part of the school in which primary education is provided.

Clause 2(9)(a) provides for every school's budget share for a financial year to be determined before the beginning of that year.

Clause 2(9)(b) provides for a school's budget share to be revised inyear, for example, if there was a mistake in the formula in which case the formula budget share could be increased or decreased, or additional resources could be allocated inyear and distributed by means of the formula, or the budget share could be increased through allocations from excepted items.

Clause 2(10) provides for amounts outside the formula (excepted items of expenditure held centrally by ELBs) to be allocated to controlled and maintained schools.

Clause 2(11) requires the common funding scheme to include provision for schools opening/closing mid year, amalgamations etc.

Clause 3 - Conditions as to financial delegation

Clause 3 re-enacts Article 52(1)(a) of the Education Reform (Northern Ireland) Order 1989 which is repealed. It provides for the setting of conditions under which the Board of Governors of a school is given delegated authority and allocated a delegated budget.

Clause 3(1)(a) provides for the exercise of a Board of Governor's delegated powers to be subject to such conditions as may be imposed by the common funding scheme.

Clause 3(1)(b) provides the power for ELBs to issue separate delegation conditions, from the common funding scheme, which will cover financial and management arrangements.

Clause 3(2) enables the Department to issue guidance on these financial and management arrangements and requires ELBs to have regard to any such guidance.

This clause also provides for the common scheme to detail restrictions on the Board of Governors, such as, for example requiring the Board of Governors to obtain the approval of the ELB before appointing or promoting staff or purchasing an item of equipment above a specified amount. Experience of the operation of the current funding arrangements has shown isolated instances of individual Boards of Governors acting contrary to the advice of the ELB, in particular not effecting redundancies when the reduction in enrolment would indicate that this is required to keep the school's budget in balance. The same situation also tends to arise when a school is being amalgamated.

Clause 4 - Effect of financial delegation

Clause 4 re-enacts the substance of Articles 50 and 52 of the Education Reform (Northern Ireland) Order 1989 which are repealed.

Clause 4(1) provides for the delegation of their budget allocations by the ELB to each relevant controlled and maintained school.

Clause 4(2) provides for the common funding scheme to detail times at which, and the manner in which, any sum is put at the disposal of the Board of Governors.

Clause 4(3) ensures that an ELB cannot delegate to a Board of Governors the power to spend amounts other than required or authorised by or under the scheme.

Clause 4(4)(a) provides for a Board of Governors, subject to any provision made by or under the common funding scheme, to spend any sum made available to it in respect of the school's budget share as it thinks fit for the purpose of the school.

Clause 4(4)(b) provides for the delegation, by the Board of Governors to the principal, of specific authority in relation to the management of all or part of the school's delegated budget as may be permitted by or under the common funding scheme.

Clause 4(5) makes it clear that the governors of a school will not incur any personal liability in respect of any action taken in good faith in the exercise or purported exercise of their delegated powers under the common funding scheme.

Clause 5 - Publication of financial statements

Clause 5 replaces Article 54 of the Education Reform (Northern Ireland) Order 1989 which is repealed.

Clause 5(1)(a) requires each ELB to prepare and publish, before the beginning of each financial year, details of the budget allocations made to each individual controlled and maintained school.

Clause 5(1)(b) requires each ELB to prepare and publish, after the end of each financial year, a statement of expenditure actually incurred in that year, or which is treated by the ELB as having been incurred, for the purposes of each such school.

Clause 5(2) requires the detail of these statements to be in accordance with the common funding scheme.

Clause 5(3)(a) requires each ELB to provide a copy of each of the statements to the Board of Governors of each relevant school.

Clause 5(3)(b) requires each ELB to provide a copy of each of the statements to CCMS.

Clause 5(4) provides for the Board of Governors of each school to ensure that a copy of any statement is available for inspection (at all reasonable times and free of charge) at the school.

Clause 5(5) defines any reference to the "use of resources" as a reference to their expenditure, consumption or reduction in value.

Clause 5(6) - The current provisions in Articles 61 and 78 of the Education Reform (Northern Ireland) Order 1989 will apply to statements produced by the Department for voluntary grammar schools and grant maintained integrated schools until the transfer of funding responsibility to the ELBs. After transfer those Articles will be repealed and clause 5 will cover those schools, as they are "relevant schools". The effect of this subsection is to restrict clause 5 to controlled and maintained schools until the transfer of responsibility.

Clause 6 - Interpretation of this Part

Clause 6(1) to (3) set out several of the definitions used in Part I of this Bill.

Clause 6(4) provides for the Department to substitute references for a financial year for such other period (e.g. academic year) as the Department may determine.

Clause 6(5)(a) allows for the Department to provide directions and guidance in writing. This may be required to clarify parts of the common funding scheme to which ELBs must comply.

Clause 6(5)(b) requires the Department to publish any directions or guidance given in such manner as the Department thinks fit.

Clause 7 - Consequential amendments

Clause 7 gives effect to Schedule 1 to the Bill which contains amendments to the Education Reform (Northern Ireland) Order 1989 and Part VII of the Education (Northern Ireland) Order 1998.

Clause 8 - Resource allocation plans

Clause 8 replaces Article 113 of the Education and Libraries (Northern Ireland) Order 1986 which is repealed. Prior to the change from receipts and payments accounting to accruals accounting this required ELBs to submit 'financial schemes' to funding Departments - these are now replaced by 'resource allocation plans'.

Clause 8(1) requires an ELB, in respect of each financial year, to prepare a resource allocation plan indicating how it proposes to spend its budget on its various functions.

Clause 8(2) requires an ELB to submit its resource allocation plan in a form approved by its funding Department and contain such information in connection with the exercise of its functions as directed by that Department.

Clause 8(3) provides for the funding Department to approve a plan with or without modification.

Clause 8(4) enables an ELB, with the approval of a funding Department, to submit a revised resource allocation plan to that Department and provides for that Department to approve it with or without modification.

Clause 8(5) forbids an ELB from using resources otherwise than in accordance with a plan or revised plan approved by the funding Department.

Clause 8(6) defines the term "funding department" for the purpose of the Bill and the Education Orders.

Clause 8(7) defines the term "relevant functions" for the purpose of the Bill and the Education Orders.

Clause 8(8) clarifies the meaning of "use of resources" for the purposes of this section of the Bill.

Clause 9 - Funding of boards

Clause 9 replaces Article 114 of the Education and Libraries (Northern Ireland) Order 1986 which is repealed. This allowed funding Departments to pay grants to ELBs in accordance with 'approved financial schemes' - such schemes no longer exist.

Clause 9(1) provides for DCAL to pay grants to enable an ELB to meet expenditure incurred, or to be incurred, in the exercise of its functions relating to that Department's responsibilities under the Education and Libraries (Northern Ireland) Order 1986.

Clause 9(2) provides DEL with a similar power to meet expenditure incurred, or to be incurred, in the exercise of its functions relating to that Department's responsibilities under the Education and Libraries (Northern Ireland) Order 1986 and the Further Education (Northern Ireland) Order 1997.

Clause 9(3) provides for the Department to pay grants to enable an ELB to meet expenditure incurred, or to be incurred, in the exercise of its functions relating to the Department's responsibilities under the Education Orders.

Clause 10 - Accounts of boards

Clause 10 replaces Article 119 of the Education and Libraries (Northern Ireland) Order 1986 which is repealed. This had required ELBs to keep accounts of all monies received and monies paid out as directed by the Department. The new clause reflects the changed circumstances brought about by the move from cashbased estimating and accounting to accruals accounting.

Clause 10(1) requires an ELB to keep accounts in such form as the Department may direct.

Clause 10(2) requires an ELB to prepare a statement of accounts for each financial year in a form and containing such information as the Department, with the approval of the Department of Finance and Personnel (DFP), may direct.

Clause 10(3) requires an ELB to send copies of the statement of accounts to each of the funding Departments and the Comptroller and Auditor General for Northern Ireland (C&AG) by such date as the Department may direct.

Clause 10(4) provides for the C&AG to examine, certify and report on the statement of accounts and send a copy of his report to the ELB and to the funding Departments.

Clause 10(5) provides for the statement of accounts of an ELB and the C&AG report on them to be included in the ELB's annual report that is laid before the Assembly.

Clause 10(6) provides for the C&AG, in carrying out his functions, to have a right of access to books, accounts and records of the funding Departments and the ELBs and to require any member or officer or former member or officer of an ELB as he considers necessary to provide any information about the affairs of the ELB as is necessary for him to fulfil his functions.

Clause 10(7) requires the Department to consult other funding Departments before issuing directions under this section.

Clause 11 - The duty of best value

Clause 11 places a duty on ELBs to deliver Best Value in the execution of their services.

Clause 11(1) requires an ELB to make arrangements for continuous improvement in the way it carries out its functions, having regard to economy, efficiency and effectiveness.

Clause 11(2) provides for an ELB, in deciding how to carry out its duty under clause 11(1), to consult persons appearing to the ELB to be representative of persons who use, are likely to use, or who have an interest in the services provided by the ELB.

Clause 12 - Contracts: exclusion of non-commercial considerations

Article 20 of the Education and Libraries (Northern Ireland) Order 1993 requires that an ELB does not take into account non-commercial matters when conducting a tender process for the supply of goods, materials or services to the ELB - Article 20(4) sets out those matters deemed to be non-commercial. Clause 12 allows the Department to amend the provisions of Article 20.

Clause 12(1) enables the Department by means of an order to revoke the non-commercial status of a matter previously specified as non-commercial under the provisions of Article 20 of the Education and Libraries (Northern Ireland) Order 1993.

Clause 12(2) sets out the matters which such an order may address.

Clause 12(3) requires an ELB, in exercising a function in relation to the exclusion of non-commercial considerations in regard to contracts, as regulated by Article 20 of the Education and Libraries (Northern Ireland) Order 1993, to have regard to any guidance issued by the Department.

Clause 12(4) requires the Department to consult with other funding Departments before making an order or issuing guidance under this section.

Clause 12(5) forbids making an order under this section unless a draft of the order has been laid before, and approved by resolution of, the Assembly.

Clause 13 - Power to modify statutory provisions and confer new powers

Clause 13 allows the Department to take legislative action to remove any impediments to ELBs addressing the duty of Best Value imposed by clause 11.

Clause 13(1) enables the Department to make an order modifying or excluding the application of any statutory provision that it considers is preventing or obstructing an ELB from complying with its statutory duty in regard to Best Value.

Clause 13(2) enables the Department to make by order provision conferring on ELBs necessary power to ensure that they can comply with their duty of Best Value.

Clause 13(3) requires ELBs to have regard to any guidance issued by the Department in exercising a power conferred under clause 13(2).

Clause 13(4) indicates what an order made by the Department under this section might address.

Clause 13(5) provides that before an order is made under this section it must be laid before, and approved by resolution of, the Assembly.

Clause 13(6) identifies those with whom the Department should consult before making such an order.

Clause 13(7) places a duty on the Department, if it proposes to make an order, to lay before the Assembly an explanatory document about the proposals. This would contain a draft order setting out the proposals together with details of the statutory consultation required under clause 13(6).

Clause 13(8) prohibits the laying of a draft order before the Assembly until the expiry of the statutory period in which the document at clause 13(7) must lie before the Assembly.

Clause 13(9) provides that the Department have regard to representations made to it in preparing the draft order.

Clause 13(10) places a duty on the Department when laying a draft order for approval of the Assembly, to provide a statement giving details of any representations considered under clause 13(9) and any changes made to the proposals contained in the document laid before the Assembly under clause 13(7).

Clause 14 - Repeal of competition provisions

Clause 14 repeals Part II of, and Schedule 1 to, the Education and Libraries (Northern Ireland) Order 1993. These provisions had prevented an ELB from carrying out certain defined activities with its own staff unless these activities had been submitted to a prescribed competitive tendering process in which the ELB had successfully participated.

Clause 15 - Duty on Boards of Governors to safeguard and promote the welfare of pupils

Clause 15 extends the existing duty on the Board of Governors of schools with boarding departments, contained in the Children (Northern Ireland) Order 1995, to safeguard and promote the welfare of pupils to all pupils at the school.

Clause 15(1) imposes a duty on the Board of Governors of all grant-aided schools to safeguard and promote the welfare of registered pupils while in the care of the school.

Clause 15(2) disapplies clause 15(1) in respect of pupils in schools' boarding departments as they are already covered by a duty imposed under Article 176(1) of the Children (Northern Ireland) Order 1995.

Clause 15(3) extends the Department's powers to direct the Board of Governors of a school to comply with duties imposed under the Education Orders to include the duty imposed by Article 176(1) of the Children (Northern Ireland) Order 1995.

Clause 16 - Child protection measures

Clause 16 imposes a requirement on the Board of Governors of every grant-aided school to have a written child protection policy and sets out how this should be done.

Clause 16(1)(a) imposes a duty on the Board of Governors of every grant-aided school to decide on measures which will be taken by all persons associated with the school to protect pupils from abuse and to review these measures from time to time.

Clause 16(1)(b) requires the Board of Governors in deciding or reviewing the child protection measures to have regard to any current guidance issued by the Department, the ELBs and, where appropriate, CCMS.

Clause 16(1)(c) imposes a requirement for a written statement of these measures to be prepared, that a free copy is made available to the parents of all registered pupils and that it is also available for inspection at the school free of charge and at reasonable times.

Clause 17 - School discipline measures to prevent bullying

Clause 17 amends Article 3 of the Education (Northern Ireland) Order 1998 on schools' discipline policies to require that prevention of bullying be specifically addressed and to ensure consultation with pupils.

Clause 17(1) introduces amendments to Article 3 of the Education (Northern Ireland) Order 1998 which requires that all schools have a policy to promote good behaviour and discipline on the part of pupils.

Clause 17(2) amends paragraph (2)(b) of Article 3 of the Education (Northern Ireland) Order 1998 to make it a requirement on Boards of Governors to consult with registered pupils on the general principles which will be reflected in the school's discipline policy.

Clause 17(3) amends paragraph (3)(a)(ii) of Article 3 of the Education (Northern Ireland) Order 1998 to make it a duty for principals when deciding on the measures which will be used in the school to encourage good behaviour to specifically deal with the prevention of bullying among pupils.

Clause 17(4) adds to paragraph (3)(a) of Article 3 of the Education (Northern Ireland) Order 1998 a duty on the principal to consult about the measures, before they are decided, with registered pupils at the school and their parents.

Clause 18 - Admission appeals: tribunal procedures and expenses

Clause 18(1) inserts an additional sub-paragraph to Article 15(8) of the Education (Northern Ireland) Order 1997 to provide in regulations for Independent Appeals Tribunals to continue to be heard in private. Where appropriate, this will protect a child as sensitive information will be restricted to only those involved in the appeal.

Clause 18(2) and (3) - Under Article 15(10) of the Education (Northern Ireland) Order 1997, an ELB is required to make payments for travelling or subsistence allowances to any member of an admission appeal tribunal on conditions and at such rates as the Department may determine. These provisions have been amended by this clause to require an ELB to make such payments at rates, and on conditions, it determines and have been approved by the Department.

Clause 19 - Parental preferences for admission to nursery schools

Clause 19 substitutes new paragraphs (1) and (2) for those in Article 23 of the Education (Northern Ireland) Order 1998 to provide for parents to express on a single application form, in order of preference, the schools in which they wish pre-school education to be provided for their child. If they are unsuccessful in obtaining a place in their first preference school, the application form is forwarded to the second preference and so on until all preferences have been exhausted.

Clause 20 - Admission to special schools of children resident outside Northern Ireland

Clause 20 empowers an ELB to make arrangements for the admission of a child, from outside Northern Ireland, to a vacant place in a special school within its area and to charge for the place.

Clause 20(1) provides the power for an ELB to make arrangements for a child not resident in Northern Ireland to be admitted to a special school in its area.

Clause 20(2) provides that the ELB will be allowed to admit such a child for a period of one school year at a time, but that this can be extended for further years for the same school and the same child.

Clause 20(3) makes it clear that such a child should not be admitted to a place in a special school if, by doing so, a child resident in Northern Ireland would be prevented from admission to that school in a given school year.

Clause 20(4) disapplies the provisions of the Education Reform (Northern Ireland) Order 1989 relating to schools' charging policies in respect of non-resident pupils admitted under this clause.

Clause 20(5) allows an ELB to make charges in respect of any special school place occupied by a child resident outside Northern Ireland.

Clause 21 - Removal of members of Boards of Governors

Clause 21(1) gives the Department power to make regulations to remove from office all the voting and co-opted members of the Boards of Governors of a school. It would not apply to the principal of the school who is a non-voting member. Existing legislation allows individual governors to be removed on particular grounds such as bankruptcy and the Department also has the power to appoint additional governors to an existing Board of Governors in certain circumstances. It is expected that this new power is likely to arise only rarely and is designed to deal with circumstances such as the inability of the existing Board of Governors to address weaknesses in the management of the school. It would not be possible to prescribe all of the circumstances in which this may arise so it is intended that the Department should be able to invoke the power where it is convinced that it would be in the best interests of the school.

Clause 21(2)(b) will ensure that the regulations made allow for decisions to continue to be taken in relation to the running of the school while a new Board of Governors is being appointed and clause 21(2)(c) is necessary to ensure that the provisions of existing legislation cannot be used to challenge this new power.

Clause 21(3) will require the regulations to ensure that before a decision is taken to remove a Board of Governors, consultation takes place with the appropriate bodies such as the local ELB or CCMS. It also allows for arrangements to be made to advise and consult with the Boards of Governors concerned about the decision and for any representations made to be considered.

Appointments to Boards of Governors are made by a range of bodies and clause 21(4), (5), (6) and (7) would allow such bodies to remove and replace their individual representatives under arrangements laid down in regulations. These arrangements would be similar to those described under clause 21(2) and (3) above.

Clause 22 - Development proposals for grant-aided schools

Clause 22 substitutes new paragraphs for the existing paragraph (5) of Article 14 of the Education and Libraries (Northern Ireland) Order 1986 to impose a duty on a proposer of a development proposal to consult at an early stage with persons or bodies representing the school(s) which are the subject of a proposed proposal. A development proposal is a statutory process which is required when a school authority wishes to make a significant change to the education provision in a specific area e.g. a school closure or the amalgamation of two or more schools. A key element of any development proposal process associated with changes in educational provision in an area must now include early consultation with the Boards of Governors, teaching staff and parents of the relevant school(s). This consultation process must take place prior to arrangements being made for the publication of the proposal.

Clause 23 - Appeals against expulsion: tribunal procedures

Clause 23 amends Article 49(10) of the Education and Libraries (Northern Ireland) Order 1986 which deals with the making of regulations in respect of expulsion appeals tribunals. The amendments allow the Department to specify in regulations the circumstances under which the tribunal may sit in private and the matters which must be taken into account by members of the tribunal in reaching their decision.

Clause 24 - Curriculum, etc complaints: tribunal procedures

Clause 24 amends Article 33(3) of the Education Reform (Northern Ireland) Order 1989 by adding sub-paragraphs to provide for curriculum complaints tribunals to sit in private. It also enables the Department to prescribe in regulations particular matters to which a curriculum complaints tribunal must have regard when considering a complaint.

Clause 25 - Consultation of schools by sampling

Clause 25 amends Article 31 of the Education Reform (Northern Ireland) Order and Article 11 of the Education (Northern Ireland) Order 1998 to enable the Department to consult a sample of schools, instead of all schools likely to be affected, before making regulations relating to the provision of information about pupil performance and the setting of performance targets by schools.

Clause 26 - Costs under approved contracts

Clause 26 provides trustees of voluntary maintained schools, trustees of voluntary grammar schools and Boards of Governors of grant-maintained schools entering into a Public Private Partnership (PPP) contract with the power to make payments for legitimate contractual costs at any point during, or after, the end of the contract term. In relation to controlled schools, the change to Article 25(4) of the Education (Northern Ireland) Order 1997 is that the ELBs will be bound to cover any costs arising from a PPP contract.

Clause 27 - Determination of travelling and subsistence allowances

Clause 27(1) and (2) - Under Article 79 of the Education and Libraries (Northern Ireland) Order 1986, an ELB is required to make payments for travelling or subsistence allowances to any member of the ELB or committee or sub-committee of the ELB on conditions and at such rates as the Department may determine. These provisions have been amended by this clause to require an ELB to make such payments at rates, and on conditions, it determines and have been approved by the Department.

Clause 27(3) and (4) - Under Article 80 of the Education and Libraries (Northern Ireland) Order 1986, an ELB could pay reasonable travelling or other expenses of any person making official visits on behalf of the ELB. The payments are at such rates as the Department approves. It is proposed to amend this Article so that payments will be at such rates and on such conditions determined by the ELB, after consultation with the Staff Commission for ELBs and approved by the Department.

Clause 27(5) and (6) - Under Article 92(2) of the Education and Libraries (Northern Ireland) Order 1986, the Department is responsible for determining the rates at which an ELB could defray or contribute towards expenses, not covered under Article 79, reasonably incurred by any person authorised to attend any conference for the discussion of questions relating to any of its functions. It is proposed to amend this Article so that payments will be at such rates and on such conditions determined by the ELB, after consultation with the Staff Commission and approved by the Department.

The consultation with the Staff Commission is intended to ensure common practice across all five ELBs.

Clause 28 - Officers of boards

The provisions in clause 28 replace Article 83 of the Education and Libraries (Northern Ireland) Order 1986 that deals with officers of the ELBs. In the current legislation, an ELB must undertake certain specified matters in order to receive approval from the relevant Department to the appointment of a Chief Executive or Chief Librarian. That Department must consult the Staff Commission before it approves such appointments. Article 83(3) of the Education and Libraries (Northern Ireland) Order 1986 provides for the relevant Department to determine the qualifications required for appointment to such posts. The current Article 83(4) enables the Department to direct that certain officers of the ELB must not be removed from office, and their remuneration must not be fixed or altered without its approval.

New Article 83 - Officers of boards

Article 83(2) - The proposed amendment to Article 83(2) transfers from the Department to the Staff Commission, the consultation required by the ELB on certain specified matters in connection with the appointment of a Chief Executive or Chief Librarian. The new provision requires the ELB to obtain the Department's prior approval before appointing a Chief Executive, and the prior approval of DCAL before appointing a Chief Librarian.

Article 83(6) - enables the Department to direct that the terms and conditions relating to the remuneration of the Chief Executive, Chief Librarian and other specified officers of the ELB must not be fixed or altered without its approval.

Clause 29 - Principals on teaching appointments committee

Clause 29 modifies Part 1 of Schedule 3 to the Education and Libraries (Northern Ireland) Order 1986 to enable an ELB to appoint one or two principals, from another ELB's panel, to its Teaching Appointments Committee, where it is not possible to do so from its own panel.

Clause 30 - Programme of training by boards

Clause 30 and paragraphs 5 and 6 of Schedule 2 remove the requirement in Article 149 of the Education Reform (Northern Ireland) Order 1989 for the ELBs to submit their training programmes to the Department for approval. The requirement to consult Boards of Governors and certain other interests before preparing their programmes remains.

Clause 31 - Terms of appointment of members of the Council for Catholic Maintained Schools

Clause 31 removes the provision in paragraph 5 of Schedule 8 to the Education Reform (Northern Ireland) Order 1989 for certain members of CCMS to be appointed at a different time from the other members.

Clause 32 - Provision of secondary education for pupils by institutions of further education

Clause 32 and paragraph 7 of Schedule 2, extends the opportunity to have educational provision made in an institution of further education to pupils who are over the age of 14 and not on the register of a school, for example pupils who have been expelled.

Clause 32 replaces paragraph (2) of Article 83 in the Education (Northern Ireland) Order 1998.

Clause 32(2)(a) enables an ELB to arrange for education to be provided by an institution of further education on behalf of a Board of Governors of a grant-aided school in its area where the pupil is registered at the school and in key stage 4.

Clause 32(2)(b) enables the same provision to be made for children over 14 years who are not on the register of a school and reside in the ELB's area.

Clause 33 - The General Teaching Council for Northern Ireland: fees and procedures

Clause 33 amends the powers, in Chapter 1 of Part VI of the Education (Northern Ireland) Order 1998, to make regulations that deal with the procedures for removing entries from the register of persons found guilty of misconduct or in other circumstances, the charging of fees by the General Teaching Council, and the deduction of fees from the salary of teachers.

It modifies the requirement to specify in regulations the procedures for removing entries from the register of persons found guilty of misconduct or in other circumstances, by providing for such procedures to be determined also under regulations. This enables the regulations to prescribe the core essentials of the procedures so that the Council can decide their specific details.

The provision for the Council to charge fees is amended so that it covers the costs of all its functions, including registration, restoration and retention of entries in the register. Similarly, the provision for deducting a fee from the salary of teachers is modified so that the amount corresponds with the fees fixed by the Council.

Clause 34 - Abolition of corporal punishment

Clause 34 in effect abolishes corporal punishment in any school, institution of further education or setting where education is provided by arrangement with an ELB. This clause, together with paragraph 8 of Schedule 2, replaces all previous legislation on corporal punishment and extends the abolition to independent schools (not grant-aided). This change is required to ensure compliance with a judgement of the European Court of Human Rights.

Clause 34(1) states that corporal punishment given by a member of staff of a school or on the authority of the school to a child at any school, institution of further education or in any educational provision arranged by an ELB cannot be justified in any legal proceedings by virtue of the position held in the school.

Clause 34(2) states that clause 34(1) applies to any corporal punishment given to a child at any time while in the charge of the school.

Clause 34(3) defines corporal punishment as anything done for the purposes of punishment which would constitute battery.

Clause 34(4) excludes from the definition of corporal punishment action taken to a child which prevents immediate danger of personal injury or danger to property.

Clause 34(5)(a) defines a child as a person under the age of 18. Clause 34(5)(b) defines a member of staff as any teacher or any other person who has lawful control or charge of the child at the place where education is provided.

Clause 35 - Reports and returns

Clause 35 provides for specified bodies to give reports and returns and provide information to DE, DCAL and DEL and to ELBs, as the Departments and ELBs may reasonably require for the purposes of their functions under any statutory provision.

Under the present law (Article 103 of the Education and Libraries (Northern Ireland) Order 1986) the Departments and ELBs have the power to receive reports, returns and information from specified bodies but only in relation to their functions under the Education Orders. Departments and ELBs have now been given additional functions, for example, under the equality provisions of the Northern Ireland Act 1998. Clause 35 will ensure that Departments and ELBs can obtain reports, returns and information that relate to any of their statutory functions.

The bodies required to provide reports, etc to DE are listed in clause 35(2); to DCAL in clause 35(6); to DEL in clause 35(8); and to ELBs in clause 35(4).

Clause 36 - Annual report of boards

Clause 36(1) requires an ELB in respect of each financial year to prepare a report on the exercise of its functions in that year.

Clause 36(2) provides for the report to be both published and laid before the Assembly by the ELB.

Clause 36(3) enables the Department to direct what must be included in the report.

Clause 36(4) requires the Department to consult other funding Departments before issuing directions

Clause 37 - Regulations

Clause 37 details the manner regulations are to be made under the Bill and the ancillary provisions the Department may include in such regulations.

Clause 38 - Interpretation

Clause 38 spells out the full title of the other 'Education' Orders referred to in the Bill and states that the terms and expressions set out in Article 2 of the parent Education and Libraries (Northern Ireland) Order 1986 will also apply to this Bill.

Clause 39 - Minor and consequential amendments and repeals

Clause 39 gives effect to Schedule 2 which indicates minor and consequential amendments to existing legislation and Schedule 3 which repeals certain existing legislation, both as a result of measures in the Bill.

Clause 40 - Commencement

Clause 40 indicates when the various provisions in the Bill will come into operation.

Clause 41 Transitional and saving provisions

Clause 41 identifies those provisions which will not apply in relation to a financial year ending prior to 31 March 2003.

Clause 42 - Short title

Clause 42 sets out the title of the Bill

Schedule 1 - Funding of grant-aided schools: consequential and supplementary amendments

Schedule 1 sets out some amendments to Articles 55, 59, 61, 63, 67 and 72 of the Education (Northern Ireland) Order 1998 which are consequential to the proposed new provisions in relation to the funding of grant-aided schools.

Commencements

Articles 55 to 60, 67, 68 and 70 to 72 of Part VII of the Education (Northern Ireland) Order 1998 are to be commenced on 1 April 2003. These Articles cover provision in the following areas and will be detailed in the financial arrangements document which will accompany the common funding scheme.

Articles 61 to 64 and 69 of the Education (Northern Ireland) Order 1998 however, will only be commenced when responsibility for funding voluntary grammar and grant maintained integrated schools transfers to ELBs. In the interim Articles 60, 61, 77 and 78 of the Education Reform (Northern Ireland) Order 1989, as amended by Schedule 1, will apply to such schools. The amendments have effectively provided for maintenance grants for these schools to continue to be made up of two elements:-

There are also changes to the financial statement provisions for voluntary grammar and grant maintained integrated schools to correspond to those made for schools with delegated budgets. The detail of this will be in the common funding scheme.

The legislation being omitted through Schedule 1, in both the Education Reform (Northern Ireland) Order 1989 and the Education (Northern Ireland) Order 1998, is either redundant or superseded.

Schedule 2 - Minor and consequential amendments

Paragraph 4

The provisions in Schedule 2, paragraph 4 replace those set out on paragraphs 4 to 7 of Schedule 15 to the Education and Libraries (Northern Ireland) Order 1986 and for the most part are self-explanatory. The main changes from the existing provisions are -

Paragraph 9

Schedule 2, paragraph 9 amends the reference to the Interpretation (Northern Ireland) Act 1954 from section 18 to section 24.

Schedule 3

Schedule 3 sets out the repeals of existing legislation as a result of measures in the Bill.

FINANCIAL EFFECTS OF THE BILL

  1. The measures in the Bill are cost neutral and they do not create any staffing implications.

    2. HUMAN RIGHTS ISSUES

  2. The measures in the Bill do not contravene Human Rights legislation. The provision regarding the abolition of corporal punishment is to comply with a judgement of the European Court of Human Rights and others, such as the requirement for schools to have written anti-bullying and child protection policies and a general duty of care placed on Boards of Governors for the safety and welfare of the children in their charge, will have a positive impact on children's rights.

    3. IMPACT ON EQUALITY OF OPPORTUNITY

    Common Formula Funding

  3. The introduction of a common formula, of necessity, involves a change in the level of funding previously allocated to individual schools. The Bill introduces an enabling power only and does not require an Equality Impact Assessment (EIA).

  4. An EIA formed an integral part of the consultation document setting out the proposals for the common formula. The EIA indicated that the introduction of a common formula should have no direct impact on the following groups:

  1. However, the EIA indicated that a positive impact would be obtained for the following groups:

Other Provisions

  1. The Department considers that none of the remaining provisions in the Bill will have any adverse differential application against any of the categories identified in Section 75 of the Northern Ireland Act 1998.

    2. SUMMARY OF THE REGULATORY APPRAISAL

  2. There are no costs to business associated with the Bill.

    3. LEGISLATIVE COMPETENCE

  3. At Introduction the Minister of Education had made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Education and Libraries Bill would be within the legislative competence of the Northern Ireland Assembly."