Delegated Powers Memorandum

Introduction

This memorandum identifies provisions for delegated legislation in the Education Bill.  It explains the purpose of the delegated powers taken; describes why the matter is to be left to delegated legislation; and explains the procedure selected for each power and why it has been chosen. This memorandum should be read in conjunction with the Explanatory and Financial Memorandum accompanying the Bill.

Drafts of the regulations referred to in this memorandum are not yet available.

Section 4 (6) – Employment schemes for grant-aided schools

Draft Affirmative Procedures

This Clauseallows the Department to amend Schedule 2 (Provisions required in employment schemes), by means of an Order that would be approved by the Assembly.  It is envisaged that this power would be used to take account of policy changes or changes in employment law effected by other Departments.  It is subject to affirmative procedures at the behest of the Education Committee following previous consultations.  The clause also allows for the consequential amendment to Section 4 (4) if required because of an amendment to Schedule 2.

Section 13 (1) – Modification of employment law

Negative Procedures

This clause allows the Department to make an Order to modify employment law.  This is necessary because of the particular nature of ESAs functions as an employer of school staff.  Although ESA is the employer, a number of employment functions are delegated to the Boards of Governors of grant-aided schools.  It is intended that this power will be used to make Orders ensuring that the appropriate body is liable under employment law (e.g. in the case of an employment tribunal).  It is envisaged that any Order would be procedural and therefore the negative resolution procedures would be appropriate.

Section 21 – ESA to pay superannuation benefits to teachers.

Negative Procedures

This clause provides a substitution for Article 11 of the Superannuation (NI) Order 1972 and will allow the delegation to ESA of the duty to pay superannuation benefits for teachers.  This transfer of duty also includes the transfer of the relevant DE staff to carry out this work, which is more appropriately placed with the ESA as the future employer of all teachers in grant-aided schools.  As this policy has been agreed by the Executive (and with the passing of the Bill, the Assembly) negative resolution procedure is considered the most appropriate in this case.

Section 30 – Regulations

Negative Resolution

This clause allows the Department to make regulations setting out the form, content, procedures and consultation arrangements on an Area Education Plan.  It is envisaged that these arrangements will be subject to change from time to time and therefore subordinate legislation is more appropriate than including this detail in the Bill.  As this policy has been agreed by the Executive (and with the passing of the Bill, the Assembly) negative resolution procedure is considered the most appropriate in this case.

Section 62 – Tribunal to review certain decisions in relation to employment schemes and schemes of management

Draft Affirmative Resolution

This clause gives OfMDfM (please note, not the Department of Education), the power to make regulations in relation to the establishment of a Tribunal to exercise functions under Section 8 and 37, i.e. an appeal mechanism for submitting authorities when the ESA does not approve submitted employment of management schemes. It is subject to affirmative procedures at the behest of the Executive.

Section 64 (1) – Supplementary, incidental, consequential, transitional provision etc.

Draft Affirmative Resolution

This clause allows the Department to make changes it feels necessary to the Act.  It is a normal clause in Primary Legislation which allows Departments to amend anomalies in an Act by Order, rather than make more Primary Legislation.  At the behest of the Education Committee, following previous consultations this has been given the stricter affirmative Assembly control.

Section 68 (2) – Commencement

No Resolution

This clause is the normal clause which allows the Department to commence provisions on a day appointed by the Department.  Commencement Orders are not subject to Assembly Control, but the Department does consult the Education Committee before making such Orders.

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