House of Commons - Explanatory Note
Education And Inspections Bill - continued          House of Commons

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Clause 14 and Schedule 2: Proposals for discontinuance of schools maintained by a local education authority

70.     This clause replaces existing provisions in the 1998 Act and provides for the publication of statutory proposals where a local education authority or school governing body wish to close a maintained school in England, including all maintained mainstream schools, special schools and nursery schools.

71.     Subsection (1) provides that a local education authority may publish proposals for the closure of any maintained school.

72.     Subsection (2) provides that a governing body of a voluntary, foundation or foundation special school may publish proposals for the closure of their school.

73.     Subsection (3) provides for regulations to prescribe the information to be contained within the proposals and the publication arrangements.

74.     Subsection (4) requires the body formulating proposals to close a rural primary school to have regard to a number of factors. The factors are: the impact on the community of the closure, the availability and cost (to the local education authority) of transport for pupils to other schools; any increase in the use of motor vehicles and the likely effect of such and any alternatives to school closure. It also requires the body to have regard to guidance issued by the Secretary of State.

75.     Subsection (5) provides for governing bodies to submit their published proposals to local education authorities in accordance with regulations.

76.     Subsection (6) provides for Schedule 2 to have effect in relation to the consideration, approval and implementation of school closure proposals under this clause.

Clause 15: Consultation in relation to proposals under section 14

77.     In relation to England this clause replaces provisions of the 1998 Act which were inserted by the 2005 Act. It provides for consultation where the local education authority or the governing body propose to close a rural primary school or special school.

78.     Subsection (1) requires the body proposing to close a rural primary school or special school, under clause 14, to consult the following before publishing the proposals: registered parents of registered pupils at the school; in the case of a rural primary school, the local education authority and the district council or parish council for the area; in the case of a community or foundation special school, any local education authority that maintains a statement of special educational needs for any registered pupil at the school; and any other persons the body deem appropriate.

79.     Subsection (2) requires the body proposing to close any other maintained school to consult persons they deem appropriate before publishing proposals.

80.     Subsection (3) requires the body to have regard to guidance by the Secretary of State when consulting.

Clause 16: Direction requiring discontinuance of community or foundation special school

81.     This clause re-enacts section 32 of the 1998 Act.

82.     Subsection (1) provides for the Secretary of State, if he considers it expedient to do so in the interests of the health, safety or welfare of pupils at a school, to direct a local education authority to discontinue a community or foundation special school on a date specified in the direction.

83.     Subsection (2) provides that the direction may include a requirement that the local education authority notify people as specified in the direction.

84.     Subsection (3) sets out the persons the Secretary of State must consult before giving a direction.

85.     Subsection (4) requires the Secretary of State to give written notice of the direction to the head and governing body of the school.

86.     Subsection (5) requires a local education authority to discontinue a school on the specific date given in a direction and provides that there is no requirement to publish statutory proposals for the school's closure.

Clause 17: Alterations that may be made under section 18

87.     This clause provides that regulations may prescribe the alterations to maintained schools that require the publication of statutory proposals.

88.     Subsection (2) provides that such alterations must include a change in the category of the school; the acquisition by a foundation or foundation special school of a foundation; and any change in a school's instrument of government which results in the majority of governors being foundation governors.

89.     Subsection (3) provides that other alterations may be prescribed in regulations as requiring statutory proposals.

90.     Subsection (4) provides that a maintained school may not change, acquire or lose a religious character; change category to a community or community special school; change category from a mainstream school to a special school or from a special school to a mainstream school; or change category from a maintained nursery school to any other kind of school or from any other kind of school to a maintained nursery school. The effect of subsection (4) is that any of these changes could be achieved only by discontinuing the existing school and establishing a new school in its place.

Clause 18: Publication of proposals for alteration of school

91.     Subsections (1) and (3) provide that where a local education authority or the governing body of a maintained school propose to make a prescribed alteration to a maintained school, and the proposals are ones that these bodies respectively may make, they must publish statutory proposals to do so.

92.     Subsection (2) defines the alterations that may be proposed by a local education authority as, in the case of community schools, community special schools or maintained nursery schools, those that are prescribed in regulations; and in the case of foundation schools, foundation special schools or voluntary schools, an enlargement of the premises, the establishment or discontinuance of special educational needs provision, or the establishment of provision suitable for pupils over compulsory school age.

93.     Subsection (3) provides that where the governing body of a maintained school propose to make a prescribed alteration to a school, they must publish proposals under this clause, and that in the case of a community school, a community special school or a maintained nursery school, the prescribed alteration must be designated by regulations under this subsection as capable of being proposed by the governing body.

94.     Subsection (4) provides that if the governing body of a voluntary aided school are unable or unwilling to continue their capital contribution to the school, they must publish proposals to become either a voluntary controlled school or a foundation school, as they shall determine. (This re-enacts the provisions of paragraph 3 of Schedule 8 to the 1998 Act.)

Clause 19: Proposals under section 18: procedure

95.     This clause provides that regulations may make provision about the publication and determination of proposals under clause 18. Subsection (2) gives examples of specific provision that may be made, and in particular provides that regulations may make provision about the referral of proposals to the adjudicator in prescribed cases. Subsection (3) provides that regulations may confer functions on local education authorities, governing bodies and the adjudicator.

96.     Subsection (4) provides that regulations may enable the Secretary of State to require proposals to be referred to the adjudicator.

97.     Subsection (5) enables the local education authority or the adjudicator to make a transitional exemption order allowing the full requirements of the Sex Discrimination Act 1975 in respect of co-educational schools to be phased in if a single-sex school becomes co-educational. (This re-enacts the provisions of paragraph 21 of Schedule 6 to the 1998 Act.)

98.     Subsection (6) provides that regulations may require any persons exercising functions under the regulations to have regard to guidance issued by the Secretary of State.

Clause 20: Right of governing body to determine own foundation proposals

99.     Subsections (1) to (3) provide that regulations under clause 19, in relation to proposals under clause 18 by a governing body of a community or voluntary controlled school to change category to a foundation school, must provide for the proposals to be determined by the governing body, and not be referred to the adjudicator. This applies only if the proposals do not involve the acquisition of a foundation or a change to the instrument of government which results in the majority of governors being foundation governors. Similar provision is made in respect of proposals for a change of category from community special school to foundation special school.

100.     Subsections (4) and (5) provide that, in relation to certain proposals published under clause 18 by a governing body which involve the acquisition of a foundation, or result in the majority of the governors being foundation governors, regulations under clause 19 must provide for the proposals to be determined by the governing body unless the local education authority wish them to be referred to the adjudicator.

Clause 21: Rights of interested bodies in relation to proposals under section 19

101.     This clause provides that regulations made under clause 19 must make provision in connection with the referral of certain proposals to the adjudicator in certain circumstances.

102.     Subsection (1) provides that if regulations made under clause 19 provide for the governing body of a school to determine proposals falling within subsection (2), the regulations must provide for the local education authority to be able refer the proposals to the adjudicator for determination.

103.     Subsection (2) specifies the proposals that may be referred to the adjudicator as envisaged in subsection (1). These are proposals to acquire a foundation, and proposals for a foundation to appoint a majority of the governing body of a school.

104.     Subsection (3) provides that regulations may restrict the matters to which the local education authority may have regard in deciding whether to require such proposals to be referred to the adjudicator.

105.     Subsection (4) provides that if regulations made under clause 19 provide for proposals to be determined by a person other than the adjudicator (for example by the governing body of the school concerned), the regulations must provide for specified bodies to be able to refer the proposals to the adjudicator after the initial determination. The specified bodies are Church of England and Roman Catholic diocesan authorities and, in the case of proposals relating to 14-19 provision, the Learning and Skills Council for England. This does not apply where clause 20 restricts or excludes the possibility of a reference to the adjudicator.

106.     Subsection (5) provides that, if regulations made under clause 19 provide for a local education authority to determine proposals which they have published in relation to a foundation, voluntary or foundation special school, the regulations must provide for the governing body and trustees of the school to be able to refer the proposals to the adjudicator after the initial determination.

Clause 22: Proposals under section 18: implementation

107.     This clause provides that regulations may make provision in connection with the implementation of approved proposals for the alteration of schools (including arrangements under which the duty to implement the proposals may be removed, or the proposals modified).

108.     Subsection (3) provides that regulations in respect of proposals for a school to change its category or gain a foundation may include provision about changes to the constitution of the governing body and the transfer of property or staff. Subsections (4) and (5) give further detail of what regulations in relation to the transfer of property may cover.

109.     Subsection (6) provides that regulations may require any prescribed persons, in exercising functions under the regulations, to have regard to guidance issued by the Secretary of State.

110.     Subsection (7) provides that regulations may in particular make provision corresponding to the provisions of Schedule 2 governing the implementation of proposals for the establishment or discontinuance of schools.

111.     Subsection (8) provides that a school's change of category is not to be taken as authorising any change in the religious character of the school.

Clause 23: Proposals for removal of foundation or reduction in foundation governors

112.     This clause provides for the governing bodies of certain foundation schools with foundations to publish proposals to remove the foundation or to reduce the proportion of governors appointed by the foundation.

113.     Subsection (1) defines the schools to which the provisions of this clause apply. These are schools which, pursuant to proposals published and implemented under the Bill, are established as foundation schools with foundations or with an instrument providing for a majority of governors to be foundation governors; or which have acquired a foundation or an instrument of government providing for a majority of governors to be foundation governors.

114.     Subsection (2) enables the governing body of such a school at any time to publish proposals to remove a foundation or to alter the school's instrument of government so as to reduce the proportion of governors appointed by the foundation so that they no longer constitute a majority.

115.     Subsection (3) provides for a prescribed proportion of governors to be able to require the governing body to publish proposals for either of the changes mentioned in subsection (2), subject to procedures set out in regulations.

116.     Subsection (4) provides that the governing body may not be required to publish proposals by a specified proportion of governors at any time within a prescribed period beginning with the date that proposals mentioned under subsection (1) were implemented; or at any time within a prescribed period beginning with the date that previous proposals published under this clause were rejected.

117.     Subsection (5) defines the term "foundation".

Clause 24: Proposals under section 23: procedure

118.     This clause provides for regulations to make provision about the publication and determination of proposals under clause 23.

119.     Subsection (2) lists the provision that may be made in regulations. In particular, it includes provision enabling proposals to be treated as being approved if a specified proportion of the governing body other than a majority approves them, in prescribed circumstances.

120.     Subsection (3) provides for regulations to enable any questions about compensation which might be payable under subsection (3) or (4) of clause 25, if proposals published under clause 23 were approved, to be referred to the adjudicator for a provisional determination before a decision on whether to approve the proposals is made.

121.     Subsection (4) provides for regulations requiring any prescribed person to have regard to guidance by the Secretary of State when exercising functions under this clause.

Clause 25: Proposals under section 23: implementation

122.     This clause provides for regulations to make provision about the implementation of proposals published under clause 23.

123.      Subsection (2) provides that regulations may make provision about changes to the school's instrument of government and the reconstitution of its governing body; for the transfer of property, rights and liabilities; and about the manner and time within which things must be done.

124.     Subsection (3) provides that regulations may authorise or require a foundation to pay compensation to the governing body or local authority where the governing body or local authority has incurred capital expenditure in relation to land which forms part of the school premises (or previously formed part of the school premises) and which is not transferred to the governing body.

125.     Subsection (4) provides that regulations may authorise or require a governing body to pay compensation to the foundation where the foundation has incurred capital expenditure in relation to land which forms part of the school premises (or previously formed part of the school premises) and which is transferred to the governing body.

126.     Subsection (5) provides that regulations may enable questions about compensation to be determined by agreement or to be referred to the adjudicator for determination, and make provision for representations to be made to the adjudicator.

127.     Subsection (6) provides that regulations may require any prescribed person to have regard to guidance form the Secretary of State when exercising functions under this clause.

Clause 26: Restriction on establishment, alteration or discontinuance of schools

128.     This clause replaces existing provisions in the 1998 Act (in their application to England). It prohibits the opening or closing of maintained schools, or the making of prescribed alterations to them, without the publication and determination of statutory proposals.

129.     Subsection (3) provides that the prohibition does not apply where the Secretary of State has issued a direction to the local education authority to close a community or foundation special school (i.e. in the interests of health and safety) or to close a school in special measures, or where the governing body of a foundation or voluntary school give notice that they intend to close the school.

130.     Subsection (4) prohibits an alteration which involves the removal of a foundation or the reduction in the proportion of governors appointed by the foundation so that they no longer constitute a majority in the absence of proposals under clause 23.

Clause 27: Abolition of school organisation committees

131.     This clause has the effect of abolishing school organisation committees.

Clause 28: Amendments relating to school organisation

132.     This clause provides for Schedule 3 to have effect. Schedule 3 amends existing legislation relating to school organisation. It makes changes to reflect the new changes in the Bill in respect of England but the continuation of existing legislation in respect of Wales. It also makes changes to reflect the replacement of the school organisation committees as decision-maker by the local education authority (in England).

Clause 29: Transitional provisions

133.     This clause provides that the Secretary of State may make such transitional provisions as she considers appropriate in connection with the commencement of this Part.

Clause 30: Interpretation of Part

134.     This clause defines terms used in this Part of the Bill.

PART 3: FURTHER PROVISIONS ABOUT MAINTAINED SCHOOLS

Clause 31: Requirements as to foundations

135.     Subsection (1) of this clause inserts new sections 23A and 23B into the 1998 Act. These new sections provide for the foundations and the trustees of certain foundation and foundation special schools to have specified characteristics and gives the Secretary of State power in certain circumstances (to be specified in regulations) to remove and appoint trustees of such schools.

136.     New section 23A(1) defines the foundation and foundation special schools to which the clause applies. These are schools which are established with a foundation or which acquire a foundation in accordance with the procedures set out in the Bill and foundation and foundation special schools with foundations which appoint the majority of the governing body. References in this explanatory note to "foundations" and "charity trustees" are to the foundations and charity trustees of the schools described in subsection (1) only.

137.     Section 23A(2) provides that a foundation must be incorporated and must also be a charity (as defined in the Charities Act 1993).

138.     Section 23A(3) provides that where local authorities are members of, or are to appoint persons to be members of, foundations, the voting rights exercisable by those members must not exceed 20% of the total voting rights. Section 23A(4) similarly provides that where local authorities are to appoint charity trustees, the number of trustees appointed by them, and the voting rights exercisable by such trustees, must not exceed 20% (of the total number of trustees or the voting rights respectively).

139.     Section 23A(5) provides for regulations to impose other requirements in relation to foundations. The regulations may, in particular, impose requirements as to the objects or purposes of a foundation and as to the people who are to be disqualified from acting as trustees (section 23A(6)). Section 23A(7) defines the terms used in sections 23A and 23B.

140.     New section 23B(1) provides for regulations enabling the Secretary of State to make directions, in prescribed cases, to remove any charity trustee of a foundation or foundation special school, as defined in section 23A(1), even if the person is not otherwise disqualified; and to appoint a charity trustee to such a school.

141.     Section 23B(2) provides for regulations to make provision about the effect of a direction under subsection (1), and, in particular, enables the regulations to provide for such a direction to have the same effect as an order of the Charity Commission for the removal or appointment of a trustee made under section 18 of the Charities Act 1993. Section 23B(3) goes on to provide that nothing in this section affects any powers of the Charity Commission.

142.     Subsection (2) of the clause is a transitional provision which provides that any reference in section 23B to the Charity Commission for England and Wales should be read as a reference to the Charity Commissioners for England and Wales until section 1A(1) of the Charities Act 1993 comes into force. The current Charities Bill provides for the establishment of the Charity Commission as a body corporate, and inserts into the 1993 Act the new section 1A that is referred to.

Clause 32: Parents councils for certain foundation or foundation special schools

143.     This clause inserts a new section 23A after section 23 of the 2002 Act.

144.     The new section requires the governing body of foundation schools in England with a foundation which appoints the majority of governors to the school's governing body to establish a parent council. The members of the parent council must be parents of registered pupils at the school and its purpose is to advise the governing body on matters relating to the conduct of the school, and the governing body's exercise of their powers to provide community facilities etc (under section 27 of the 2002 Act).

145.     Regulations may set out more detail about the membership (including election/appointment arrangements; eligibility and duration of membership) and the meetings and proceedings of parent councils, and may confer or impose functions on the governing body of the schools to which the section applies. The Secretary of State may issue guidance from time to time.

Clause 33: Funding of voluntary aided schools: meaning of 'capital expenditure'

146.     Paragraph 3 of Schedule 3 to the 1998 Act imposes a duty on the governing body of a voluntary aided school to meet all capital expenditure in relation to the school premises.

147.     Clause 33 amends the definition of capital expenditure in respect of a voluntary aided school that applies for the purposes of Schedule 3 to the 1998 Act as it applies to England.

148.     The current definition of "capital expenditure" is set out in Article 13 of the Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) (England) Order 2002 (SI 2002/906). The Order contains a list of expenditure that is to be treated as capital expenditure.

149.     Clause 33 provides that "capital expenditure" in respect of voluntary aided schools shall be expenditure which is capitalised in accordance with proper accounting practices. This approach will as far as possible take standard accounting practices and concepts as its starting point, thereby avoiding the need for an exhaustive list in the legislation. This reflects the approach taken in section 16 of the Local Government Act 2003, which defines capital expenditure in relation to a local education authority.

150.     There is power to provide that specified kinds of expenditure are (or are not) to be treated as capital expenditure for individual schools (by direction) or more generally (by regulations).

151.     This clause is intended to ensure that the definition of capital expenditure reflects modern accounting practice and that optimal procurement arrangements are available to voluntary aided schools.

 
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Prepared: 28 February 2006