THE CHILDCARE BILL 2015 Memorandum prepared by the Department for Education for the House of Lords Delegated Powers and Regulatory Reform Committee INTRODUCTION 1. This Memorandum identifies the provisions in the Childcare Bill that confer powers on the to make delegated legislation. The Annex contains a summary of the clauses that contain a power to make secondary legislation. 2. The section below headed Provisions for Delegated Legislation explains in relation to each power: a. what the power does, b. why the power has been taken; and, c. the nature of, and reason for, the procedure for Parliamentary scrutiny that has been selected. BACKGROUND 3. In summary, the Bill makes provision for a new duty on the Secretary of State to secure 30 hours free childcare provision for young children of working parents in England, which is intended to deliver on a 2015 Conservative manifesto commitment. All three and four year olds and disadvantaged two year olds who meet the eligibility criteria are already entitled to 15 hours a week of free childcare, spread over 38 weeks of the year. The Government has set out its intention to consult with parents and the childcare sector on the implementation of the additional entitlement and more detail will be provided on plans for consultation during the passage of the Bill. The desire to consult widely before finalising the operational details requires the primary legislation to take a range of regulation making powers so that these can be set out in secondary legislation in due course. 1
Through this Bill, there is also an amendment to section 12 of the Childcare Act 2006 ( the 2006 Act ), to make provision in regulations for local authorities in England to publish information about the provision of childcare in their area, together with other services or facilities which may be of assistance to parents or prospective parents; this is intended to provide parents with more information, supporting them in making informed choices about returning to work and their childcare options. TERRITORIAL COVERAGE 4. The Bill extends to England and Wales only, but applies only to children in England. THE DELEGATION OF POWERS 5. The specific provisions for delegated legislation being sought in this Bill have been developed on the basis of the following considerations: a. the legislative framework must clearly be presented on the face of the Bill with secondary legislation used to provide the detail; b. within that framework, the provisions of the Bill must also support effective implementation and contain sufficient flexibility to respond to changing circumstances; c. operational, administrative, and technical details are not normally set out in primary legislation. Too much detail on the face of the Bill risks obscuring the principal duties and powers from Parliamentary scrutiny. Use of secondary legislation not only ensures appropriate flexibility but also provides additional opportunities to consult on matters of detail with those that will be affected by the provisions; d. In addition, the Government s desire to consult widely with parents and providers before finalising a delivery model requires the primary legislation to take a wider range of regulation making powers than might normally be the case. 2
PARLIAMENTARY SCRUTINY 6. All powers of the to make regulations under the Bill are exercisable by statutory instrument. The Government has considered in each case the appropriate procedure to be followed. The general reliance on the negative resolution procedure reflects our view, in each case, that the relevant matters are of administrative or procedural detail. In many cases, the approach taken also follows the precedents of Parliamentary scrutiny adopted in childcare legislation or in analogous education legislation. Powers subject to affirmative procedure 7. The affirmative procedure is the power in clause 2 for regulations made under clause 1, to amend or repeal primary legislation. THE PROVISIONS FOR DELEGATED LEGISLATION Duty to secure 30 hours free childcare available for working parents 1(2)(c) and 1(11) Power to make regulations to specify a qualifying child of working parents Power exercisable by: Regulations made by statutory instrument Parliamentary procedure: Negative resolution 8. Clause 1(1) imposes a duty on the to secure that 30 hours free childcare is available for a qualifying child of working parents. This term is defined in clause 1(2) as being a young child who is under compulsory school age, is in England and is of a description specified in regulations made by the (clause 1(2)(c)). For the purpose of prescribing the description of a child, clause 1(11) provides that regulations under subsection (2)(c) may frame the description of a young child by reference to any characteristics of the child s parent or parent s partner, for the purposes of assessing eligibility for the entitlement. 3
9. Clause 1(2)(c) read in conjunction with the regulation-making power in clause 1(11) therefore enables the to make regulations to provide for the description of a young child, for example by reference to the child s age and any other relevant circumstances, together with the prescribed characteristics of the working parent, or the partner of the working parent. In relation to the former, regulations will specify that the extended entitlement is delivered to children aged three and four. In relation to the latter (characteristics of the working parent or that person s partner), it is likely that such characteristics will include the working pattern and income of that person. The Government intends to consult on the details of the eligibility criteria in due course. This regulation making power will enable the Government to ensure that the detail of the intended recipients is captured in secondary legislation and will further ensure sufficient flexibility to enable the Government to amend the criteria, if necessary, without having to resort to amend primary legislation. It is considered that this is an appropriate means to set out the criteria for eligibility and that the negative resolution procedure is appropriate. Such a power is analogous to section 7(1)(b) of the 2006 Act. The Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2014 (SI 2014/2147) ( the 2014 Regulations ) made under section 7, prescribe the early years provision which an English local authority must secure free of charge, pursuant to the duty under section 7 on local authorities to secure early years provision to a young child in its area, free of charge and in accordance with regulations. These regulations include provision setting out the definition of children who are eligible for that provision, by reference to their age; and economic and social circumstances (in the case of 2 year olds). Additional provision here will be about the child s parents where there will be a number of detailed issues about the type and amount of work, which are more suitable for secondary than primary legislation. 1(4) and (5) Power to make regulations to discharge duty under clause 1(1) 4
Power exercisable by: Parliamentary procedure: Negative resolution Regulations made by statutory instrument 10. In order to enable the to discharge the duty under subsection (1), clause 1(4) confers a general regulation making power, so that the details of the delivery of this duty may be set out in regulations. Doubling the current entitlement for working parents of three and four year olds is a significant change to the system for parents and providers. The Government has confirmed that it intends to consult widely with parents and the childcare sector on the implementation of the additional entitlement and will set out the operational details, in regulations. Making these regulations subject to the negative resolution procedure will enable quick and efficient implementation of detailed operational changes without having to resort to primary legislation, and is in keeping with most delegated legislation in the field of childcare. 11. Clause 1(5) sets out examples of what such regulations may cover: 12. Clause 1(5)(a) and (b) would enable the to require or authorise arrangements to be made for persons to make available or arrange for other persons to make available, specified descriptions of childcare; and to make provision about the terms of those arrangements. It is considered that such detail is best dealt with through regulations because of the desirability of not putting detailed procedural requirements on the face of the Bill and because of the need to update such requirements to reflect changing circumstances and to respond to stakeholders advice and concerns, where necessary. The negative procedure is therefore appropriate and section 7A(1) of the 2006 Act provides a clear precedent for such kind of detail being set out in regulations (see the 2014 Regulations). 13. Clause 1(5)(c) provides that such regulations may make provision relating to the times and periods over which the new entitlement will be made available. This provision is necessary in order to clarify the extent of the entitlement, for example the number of hours of additional free childcare and the weeks of the year when it is available. The 2014 regulations enable parents to take 15 hours of free childcare a week over 38 weeks of the year, 5
which is broadly in line with schools term time, whilst not preventing parents from taking fewer hours per week of free childcare over more weeks of the year. It is appropriate that such detail should be left for regulations, thereby allowing for greater flexibility to amend such detail in future, and to consult recipients, and is analogous to section 7(2)(b) of the 2006 Act and the 2014 Regulations made under that section. The negative procedure is therefore considered to be suitable. 14. Clause 1(5)(d) enables regulations to specify rates payable to providers or arrangers of childcare and subsection (5)(e) stipulates that regulations may set out that payments may be made to parents or other persons. The Government has announced that it will conduct a review of the costs of delivering childcare and has committed to increasing the average funding rate; this power would enable the to set a rate of funding to providers to deliver the additional 15 hours of free childcare, if necessary. It is appropriate that such detail should be set out in secondary legislation and the negative procedure is appropriate. This power is similar to the power set out in section 45A of the School Standards and Framework Act 1998 (and see the School and Early Years Finance (England) Regulations 2014 (S.I. 2014/3352), which make provision for local authorities' financial arrangements in relation to the funding of maintained schools and providers of prescribed early years provision in England, for the financial year 2015 2016; and, for example, set out the eligibility criteria for the early years pupil premium, and rates payable by local authorities in respect of this (regulation 16(10)). 15. Clause 1(5)(f) would enable regulations to impose obligations or confer powers on any public body, for example a local authority as per the current entitlement delivered under section 7 of the Childcare Act 2006. This links to clause 1(5)(g) which would enable the by regulations to establish a body to carry out the functions relating to the new childcare entitlement. Such a body might take an operational function such as overseeing the funding of the entitlement. As this is about implementation of the policy, it is appropriate for such detailed technical and operational details 6
to be set out in secondary legislation, rather than on the face of the Bill. In addition, it will be important to consult fully if such a body is to be created or if an existing body is to take on new powers, and creating the body and/or its powers in regulations enables this to be done on a longer timetable. 16. Clause 1(5)(h) provides for regulations to reproduce any provision of the Childcare Payments Act 2014 (with or without modification). Under this Act, a scheme has been set up by the Government, which provides financial support to help working families with the cost of childcare and help those with responsibility for children to take up paid work, or to work for longer, where they may be deterred from doing so because of the need to meet childcare costs. The Government s desire to consult widely with parents and providers on the implementation of the extended entitlement requires the primary legislation to take a range of regulation making powers, such as this provision to enable the by regulations to make a similar scheme to the Childcare Payments Act for the purposes of implementing this entitlement. Such regulations would cover detailed operational and procedural matters and are thus appropriate for this level of Parliamentary scrutiny. 17. Clause 1(5)(i) would enable regulations to specify information or documents to be provided to the or specified persons, and clause 1(5)(j) would allow regulations to make provision for data sharing, including disclosure of information held by a Minister of the Crown, Her Majesty s Commissioners for Revenues and Customs (HMRC), or any other person in order to check eligibility of a child to the entitlement. For example the information under clause 1(5)(i) may include the number of hours of free childcare each eligible child takes up, which will support the calculation of funding and monitoring take up rates. Providers who deliver the current 15 hours of free of charge early education for two, three and four year olds are required to provide this information under section 99 of the 2006 Act. As the relevant documentation and data sharing arrangements may change over time, it is appropriate that such detail should be left for regulations. As set out in paragraph 9, the Department intends to consult on the detailed eligibility criteria for the additional entitlement; and this regulation making power will 7
enable the to specify the relevant data for these purposes, once the eligibility criteria have been set. 18. Clause 1(5)(k) enables regulations to make provision for any criminal offences in connection with the provision and disclosure of documents mentioned in paragraphs (i) and (j) only. The Government s intention is not to create any offences which do not align with existing offences for schemes involving information sharing and self-declaration. Further detail concerning the criminal offences is set out at clause 1(7). 1(6)- Power to ensure that regulations under clause 1(4) which authorise disclosure of information held by HMRC only to be made with Treasury s consent Parliamentary Procedure: negative resolution 19. Clause 1(6) provides that regulations made under clause 1(4) which enable the disclosure of information held by HMRC (clause 1(5)(j)) may only be made with the consent of the Treasury. This is a necessary safeguard to ensure that any future data sharing gateway involving HMRC data will be properly scrutinised. A precedent for such a regulation making power is to be found in section 47(8) of the Statistics and Registration Services Act 2007 and accordingly, it is considered that this is an appropriate use of the negative procedure. 1(7)- Power to cap penalty for criminal offence in regulations under clause 1(4) Parliamentary Procedure: negative resolution 8
20. Clause 1(7) specifies that in relation to any criminal offence created by regulations under subsection (4) (i.e. in relation to the provision of information and documents and checking information for eligibility purposes set out in clause 1(5)(i) and (j)), there is a cap on the penalty that may be imposed on indictment, namely a maximum term of imprisonment of two years, with or without a fine. It is considered that it is an appropriate safeguard, to set a maximum level of penalty, whilst retaining the option of imposing lesser penalties. Such a power is analogous to the power in section 85A of the 2006 Act which provides for the creation of a criminal offence by regulations. 1(8)- Power to set out in regulations provision relating to when a year begins Parliamentary Procedure: negative resolution 21. Clause 1(8) provides that the must set out in regulations when a year begins in relation to the determination of eligibility for the new entitlement. This is necessary because it is anticipated that this date may differ, depending on when a child s birthday falls and will enable the to align eligibility with the current entitlement for free early years provision under section 7 of the 2006 Act. This level of detail is not appropriate for primary legislation, and the 2014 Regulations, made under section 7 of the 2006 Act, make similar provision (regulation 3). 1(9)- Power to set out in regulations provision about when a child is in England Parliamentary Procedure: negative resolution 22. Clause 1(9) enables regulations to specify whether a child qualifies for the entitlement, by virtue of being in England, or not. Whilst it is clearly a 9
requirement of clause 1(2) that a child is in England, and it will generally be clear that this is the case, regulations can be used to clarify the position for example, for a child who lives in Scotland but receives childcare in England. At the moment there are no residential requirements as between local authorities but we want to ensure future flexibility if this becomes a question which needs to be resolved in the future. It is appropriate that such detail should be set out in secondary legislation. Supplementary provision about regulations under section 1 2(2)(a)- power to confer a discretion Parliamentary Procedure: negative resolution 23. Clause 2(2)(a) would enable the in regulations made under clause 1, to confer a discretion on any person. It is considered that this power to delegate is necessary in order to give the flexibility in the operational arrangements to be made for administering any scheme, for example, to assess eligibility for the new entitlement. 2(2)(b)- power to make different provision for different purposes Parliamentary Procedure: negative resolution 24. In relation to regulations made under clause 1, clause 2(2)(b) gives the the power to make different provision for different purposes. This is a usual power to enable the to have sufficient flexibility in discharging the duty under clause 1(1). 10
2(2)(c)- power to make consequential, incidental, supplemental, transitional or saving provision Parliamentary Procedure: negative resolution (otherwise) 25. In making regulations under clause 1, clause 2(2)(c) gives the the power to make consequential, incidental, supplemental, transitional or saving provision. This is a standard power intended to give effect to regulations under clause 1 and therefore to enable the discharge of the s duty under clause 1(1). 2(2)(d)- power to amend, repeal or revoke any provision made by or under an Act (whenever passed or made) Parliamentary Procedure: affirmative resolution (where regulations amend or repeal primary legislation): 26. In relation to regulations made under clause 1, clause 2(2)(d) provides that regulations may amend, repeal or revoke any provision made by or under an Act (whenever passed or made). This is to ensure that that the policy set out in the Act can be given full effect, including where it is necessary to amend other Acts for that purpose. As the arrangements for the setting up of any scheme in relation to the delivery of the entitlement under clause 1(1) may not come into force in full until September 2017 and the Government intends on consulting with parents and the childcare sector on the implementation of the entitlement, it is appropriate and necessary to take a power to amend future legislation through regulations made under clause 1. 27. In accordance with normal practice, provision is made in clause 2(4) for regulations made under clause 1 which amend or repeal primary legislation to be subject to the affirmative procedure, in order to ensure proper 11
Parliamentary scrutiny. Clause 2(5) provides that for all other regulations made under clause 1, the negative procedure will apply. Publication of childcare information 3 Duty to publish information about childcare Parliamentary Procedure: Negative resolution 28. Clause 3 inserts subsections (6A), (6B) and (6C) into section 12 of the 2006 Act and provides for regulations to require local authorities in England to publish information held by them under that section, such as information about the provision of childcare in its locality and any other services or facilities, or publications which may be of benefit to parents and children, which will include information which may be of benefit for the parents of disabled children. It is the Government s intention to improve access to information about childcare provision and other services, and ultimately assist parents to make informed choices about their childcare options. Regulations may set out the type of information to be published, as well as the manner and timing of such publication. This detail is required to be set out in secondary legislation in order to provide flexibility, to allow for changes to the publication requirements to be made quickly and efficiently, if necessary. In keeping with most delegated legislation in the field of childcare, the regulations will be subject to the negative resolution procedure. This power is analogous to the Childcare Act 2006 (Provision of Information to Parents) (England) Regulations 2007 (SI 2007/3490) which prescribe information for the purposes of section 12 of the 2006 Act. General Power exercisable by: 5(2) and (3) Commencement Regulations made by Statutory Instrument 12
Parliamentary Procedure: None 29. Clause 5(2) contains a standard power for the to bring into force provisions of the Bill by regulations. This allows the provisions to be brought into force at a convenient time. An instrument made under this power will merely be to bring into force provisions that will already have been considered and approved by Parliament as part of the Bill, and therefore, as usual with commencement powers, no additional Parliamentary scrutiny is provided for. Subsection (3) provides that regulations under subsection (2) may allow the introduction of the childcare entitlement under this Bill to be introduced in some areas, in advance of others. The Government has made clear its intention to roll out the entitlement in certain areas from September 2016 in advance of full implementation. This provision enables the Secretary of State to have sufficient flexibility to do so. 5(4) Commencement- power to make transitional or saving provision Parliamentary Procedure: None 30. Clause 5(4) provides for a standard power enabling the Secretary of State to make transitional or saving provision in connection with the coming into force of any provision of this Bill. Department for Education Any enquiries concerning this memorandum should be addressed to Jenny Preece of the Bill Team at jenny.preece@education.gsi.gov.uk 13
Annex to the Memorandum on the Childcare Bill prepared by the Department for Education for the Delegated Powers and Regulatory Reform Committee. Clause Title Procedure New or reinstatement 1 Duty to secure 30 hours free childcare available for working parents 2 Supplementary provision about regulations under clause 1 Negative Negative and affirmative New New 3 Duty to publish information about childcare Negative New 5 Commencement None New 14