The Independent Schools (Prohibition on Participation in Management) (Wales) Regulations 2024

Title, commencement and interpretation

1.—(1) The title of these Regulations is the Independent Schools (Prohibition on Participation in Management) (Wales) Regulations 2024 and they come into force on 14 February 2024.

(2) In these Regulations—

“the 2002 Act” (“Deddf 2002”) means the Education Act 2002;

“the 2006 Act” (“Deddf 2006”) means the Education and Inspections Act 2006;

“caution” (“rhybuddiad”) has the meaning given by section 8A(2) of the Rehabilitation of Offenders Act 1974(1);

“independent school” (“ysgol annibynnol”) has the meaning given by section 463 of the Education Act 1996(2);

“section 167A direction” (“cyfarwyddyd adran 167A”) means a direction given under section 167A of the 2002 Act.

Prescribed grounds for a section 167A direction

2.—(1) The prescribed grounds on which a section 167A direction may be given in respect of a person are that—

(a) the person—

(i) has been convicted of a relevant offence,

(ii) has been given a caution in respect of a relevant offence,

(iii) is subject to a relevant finding in respect of a relevant offence, or

(iv) has engaged in relevant conduct, and

(b) because of that conviction, caution, finding or conduct, the appropriate authority considers that the person is unsuitable to take part in the management of an independent school.

(2) For the purposes of paragraph (1), an offence is relevant if it is relevant to a person’s suitability to take part in the management of an independent school.

(3) References in paragraph (1) to a conviction include references to—

(a) a conviction of an offence falling within section 308(3)(a) of the Sentencing Code(3), and

(b) a conviction of a service offence within the meaning of the Armed Forces Act 2006(4) including anything that under section 376(1) and (2) of that Act is to be treated as a conviction.

(4) For the purposes of paragraph (1), a person is subject to a “relevant finding” in respect of a relevant offence if—

(a) the person has been found not guilty of the offence by reason of insanity,

(b) the person has been found to be under a disability and to have done the act charged against them in respect of the offence, or

(c) under the law in force in a country outside the United Kingdom a court has made a finding equivalent to that described in sub-paragraph (a) or (b).

(5) For the purposes of paragraph (1), conduct will be relevant if it is conduct which—

(a) is aimed at undermining the fundamental values of democracy and support for participation in the democratic process, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs,

(b) has been found to be in breach of professional standards by a professional body, or

(c) is so inappropriate that, in the opinion of the appropriate authority, it makes a person unsuitable to take part in the management of an independent school.

(6) Subject to sections 4 and 8A of and Schedule 2 to the Rehabilitation of Offenders Act 1974(5) and to any orders made under those provisions, references in paragraph (1) to a conviction or caution include references to a conviction or caution that is spent (within the meaning of the Rehabilitation of Offenders Act 1974).

(7) For the purposes of paragraph (1) a person (“P”) has been convicted of an offence, or been given a caution in respect of an offence, if P has been convicted or been given a caution in respect of an offence—

(a) in any part of the United Kingdom, or

(b) under the law in force in a country outside the United Kingdom.

(8) For the purposes of paragraph (7) P commits an offence under the law in force in a country outside the United Kingdom if P commits an act that is punishable under the law in force in that country however that act is described in that law.

Procedure for giving a section 167A direction

3.—(1) Before giving a section 167A direction in respect of a person the appropriate authority must give the person the opportunity to make representations as to why the appropriate authority should not give the direction.

(2) The appropriate authority must give the person notice that the person may make such representations.

(3) The appropriate authority must give the notice under paragraph (2) by sending it to the person by post.

(4) A person to whom notice is given under paragraph (2) may make representations in writing within the period of 60 days starting with the day on which the notice was sent.

(5) If—

(a) a person to whom notice is given under paragraph (2) asks to make representations after the period mentioned in paragraph (4) has expired, and

(b) the appropriate authority is satisfied that there were good reasons why the person failed to make representations in time,

the appropriate authority may allow a further period of time that the appropriate authority considers reasonable for the person to make representations.

(6) Paragraphs (1), (2) and (3) do not apply where the appropriate authority does not know and cannot reasonably ascertain the whereabouts of the person concerned.

(7) If a section 167A direction is given in respect of a person the appropriate authority must take all reasonable steps to notify the person of that fact.

Cases in which the appropriate authority may vary or revoke a section 167A direction

4.  The prescribed cases in which the appropriate authority may vary or revoke a section 167A direction are where—

(a) the person in respect of whom the direction was given has sought to have it varied or revoked on one of the grounds set out in regulation 5(1),

(b) the appropriate authority is in possession of information relevant to the decision to give the earlier direction which the appropriate authority did not have at the time that the decision was made, or

(c) the appropriate authority is in possession of evidence of a material change of circumstances of the person in respect of whom the direction was given, occurring since the direction was given,

and the appropriate authority considers that it is appropriate to vary or revoke the direction.

Grounds on which variation or revocation of a section 167A direction may be sought

5.—(1) The prescribed grounds on which a person subject to a section 167A direction may seek to have it varied or revoked are that—

(a) a conviction, caution or finding on the grounds of which the direction was given has been quashed,

(b) a conviction or caution on the grounds of which the direction was given has, since the giving of the direction, become spent within the meaning of the Rehabilitation of Offenders Act 1974,

(c) a conviction or caution on the grounds of which the direction was given has, since the giving of the direction, become a protected conviction or protected caution within the meaning of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975(6),

(d) in the case of a direction given on the grounds of a relevant finding, at least five years have passed since the finding was made,

(e) the person in respect of whom the direction was given is able to provide information relevant to the decision to give the earlier direction which the appropriate authority did not have at the time that the decision was made, or

(f) the person in respect of whom the direction was given is able to provide evidence of a material change of circumstances occurring since the direction was given.

(2) For the purposes of paragraph (1)(e) and (f), a person may not seek to have a section 167A direction varied or revoked insofar as the person’s case is inconsistent with the person having been convicted of, or cautioned in respect of, an offence.

(3) For the purposes of this regulation a section 167A direction is given on the grounds of a conviction, caution, finding or conduct if the ground in regulation 2(1) is met by virtue of the conviction, caution, finding or conduct (as the case may be).

Appeals: restriction on First-tier Tribunal’s power to entertain appeal

6.—(1) This regulation applies in relation to a section 167A direction which is given on the grounds of a conviction for an offence.

(2) The First-tier Tribunal may not entertain an appeal under section 167B(1) of the 2002 Act against the decision to give the direction, or not to vary or revoke the direction, insofar as the appellant’s case is inconsistent with the appellant having been convicted of an offence.

(3) For the purposes of paragraph (1) a section 167A direction is given on the grounds of a conviction for an offence if the ground in regulation 2(1) is met by virtue of a conviction for the offence.

Appeals: First-tier Tribunal’s powers

7.—(1) This regulation applies where—

(a) an appeal has been made to the First-tier Tribunal under section 167B(1) of the 2002 Act in respect of a decision to give a section 167A direction, or a decision not to vary or revoke a section 167A direction, and

(b) the First-tier Tribunal considers that the decision is not appropriate.

(2) The First-tier Tribunal may order the appropriate authority to vary or revoke the direction.

(3) Unless the parties to an appeal agree otherwise, the First-tier Tribunal, in exercising its powers under this regulation, must not consider—

(a) any information relevant to the decision to give a direction, or not to vary or revoke a direction, which the appropriate authority did not have at the time the decision was made;

(b) any evidence of a material change of circumstances of the person concerned occurring since the decision to give a direction or not to vary or revoke a direction was made.

Directions given under section 142 of the 2002 Act

8.—(1) The prescribed grounds for the purposes of section 171(1)(a) of the 2006 Act on which a direction under section 142 of the 2002 Act (prohibition from teaching, etc.)(7) was given in respect of the person are grounds relating to the person’s misconduct.

(2) The prescribed condition which must be satisfied in respect of the person (for the purposes of section 171(1)(b) of the 2006 Act) is that, as a result of the direction given under section 142 of the 2002 Act, the person may not take part in the management of an independent school.

(3) Starting with 14 February 2024 persons who fall within section 171(1) of the 2006 Act are to be treated as if the direction given under section 142 of the 2002 Act were a direction given by the appropriate authority under section 167A of the 2002 Act for the purpose of any enactment.

Jeremy Miles

Minister for Education and Welsh Language, one of the Welsh Ministers

11 January 2024