The Education and Skills Act 2008 (Commencement No. 11 and Saving and Transitory Provisions) Order 2014

EXPLANATORY NOTE

(This note is not part of the Order)

This commencement order is made under the Education and Skills Act 2008 (“the 2008 Act”).

Article 2 brings into force a number of provisions in the 2008 Act (in Part 4 and Schedules 1 and 2) on 5th January 2015. Part 4 of the 2008 Act provides for the regulation and inspection of independent educational provision in England, and replaces Chapter 1 of Part 10 of the Education Act 2002 (“the 2002 Act”).

As originally enacted, the 2008 Act provided for the regulation of independent educational institutions, including providers of part-time education. However, article 3 ensures that the provisions of the 2008 Act are brought into force in relation to independent schools only (referred to in the Order as independent educational institutions within the meaning of section 92(1)(a) of the 2008 Act). It is not intended to regulate independent part-time providers of education at this stage.

A number of key provisions are brought into force. Section 95 of the 2008 Act requires the Secretary of State to maintain a register, which replaces the register of independent schools in England currently kept by the Secretary of State under section 158 of the 2002 Act.

Section 94 of the 2008 Act requires the Secretary of State to prescribe standards by regulations. These are the Education (Independent School Standards) Regulations 2014 (S.I. 2014/3283) which come into force on 5th January 2015. This Order has the effect of repealing section 157 (independent school standards) of the 2002 Act in England, and so the Education (Independent School Standards) (England) Regulations 2010 (S.I. 2010/1997) (which were made under section 157) no longer have effect.

Section 120 of the 2008 Act is also brought into force. It is a new power enabling the Secretary of State to apply to a justice of the peace for an emergency order imposing an immediate restriction on, or deregistering, an independent school, where a pupil at the school is suffering or is at risk of suffering significant harm.

Section 139 of the 2008 Act allows for the continuity of law between the 2002 Act and the 2008 Act, so that regulatory functions may be exercised without a break. Accordingly, independent schools which were previously registered under section 158 of the 2002 Act are automatically registered under section 95 of the 2008 Act. Regulatory functions which would previously have been exercised under section 165 of the 2002 Act may now be exercised under the new provisions (in particular, sections 114 to 118).

A number of provisions in the 2008 Act have already been brought into force, subject to transitory provisions (to ensure that those provisions applied to independent schools registered under the 2002 Act). Article 3(3) and the revocations in the Schedule remove the transitory provisions so that those provisions which have already been commenced now apply to independent schools registered under the 2008 Act.

Articles 4 and 5 make saving provisions in relation to the 2002 Act. Article 4 ensures that section 162 of that Act continues to apply and the Secretary of State may remove an independent school from the register if it makes a material change which is not approved. Article 5 provides for the continuity of law in relation to any fee payable by an independent school to Her Majesty’s Chief Inspector of Education, Children’s Services and Skills for an inspection under the 2008 Act.