Education and Inspections Bill

House of Lords

Session 2005 - 06
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Other Bills before Parliament

Education and Inspections Bill

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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Removal of foundation or reduction in foundation governors
25
Proposals for removal of foundation or reduction in foundation governors
(1)
This section applies to any foundation or foundation special school having a
foundation if either or both of the following conditions is met.
(2)
Condition A is that the school was established (whether or not as a foundation
5
or foundation special school) in pursuance of proposals falling to be
implemented under Schedule 2.
(3)
Condition B is that the school acquired its foundation in pursuance of
proposals falling to be implemented under regulations under section 24.
(4)
The governing body of any foundation or foundation special school to which
10
this section applies may at any time publish proposals under this section for
either or both of the following alterations to the school—
(a)
the removal of the foundation, or
(b)
the alteration of the instrument of government in such a way that
foundation governors will cease to constitute the majority of governors.
15
(5)
A prescribed proportion of the governors of a foundation or foundation special
school to which this section applies may in the prescribed manner require the
governing body of the school to publish proposals under this section for either
or both of the alterations mentioned in subsection (4).
(6)
Subsection (5) does not require the governing body of a foundation or
20
foundation special school to publish proposals under this section—
(a)
at any time within a prescribed period beginning with the date on
which—
(i)
proposals for the establishment of the school were implemented
under Schedule 2, or
25
(ii)
proposals for the acquisition of a foundation, for a relevant
change in the instrument of government or for a change of
category to foundation school or foundation special school were
implemented under regulations under section 24, or
(b)
at any time within a prescribed period beginning with the date on
30
which previous proposals published under this section in pursuance of
a requirement under subsection (5) were rejected by the governing
body in accordance with regulations under section 26.
(7)
In subsection (6)(a)(ii) “relevant change”, in relation to the instrument of
government of a school, is to be read in accordance with section 22(2).
35
(8)
In this section “foundation” means a foundation established otherwise than
under SSFA 1998.
26
Proposals under section 25: procedure
(1)
Regulations may make provision about the publication and determination of
proposals under section 25.
40
(2)
The provision that may be made includes provision—
(a)
about the information to be included in, or provided in relation to, the
proposals;
(b)
about consultation on the proposals;

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
21

(c)
about the manner in which proposals are to be published under section
25;
(d)
for the making of objections to or comments on the proposals;
(e)
for the withdrawal of proposals in prescribed cases;
(f)
for the consideration of the proposals by the governing body;
5
(g)
enabling the governing body to approve or reject the proposals;
(h)
enabling the governing body to reject any proposals published in
pursuance of a requirement under section 25(5) (“required proposals”)
only by a decision made with the support of a prescribed proportion of
the governors;
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(i)
for the approval of required proposals given in the prescribed manner
by a prescribed proportion of the governors to be treated as approval
by the governing body;
(j)
for the approval of proposals either without modifications or in
prescribed cases with modifications of a prescribed kind;
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(k)
as to the manner in which, and time within which, anything authorised
or required by the regulations must be done.
(3)
Regulations under this section may in prescribed cases—
(a)
require the governing body to ensure that matters relating to—
(i)
any transfer which may be required by virtue of subsection
20
(2)(b) of section 27, or
(ii)
any payment which might be required by virtue of subsection
(4) or (5) of that section,

are agreed or determined before the proposals are published, and
(b)
enable or require any such matter to be referred to the adjudicator for
25
determination before the proposals are published.
(4)
Regulations under this section may req uire any prescribed person, in
exercising functions under the regulations, to have regard to any guidance
given from time to time by the Secretary of State.
27
Proposals under section 25: implementation
30
(1)
Regulations may make provision in connection with the implementation of
proposals under section 25 which have been approved in accordance with
regulations under section 26.
(2)
Regulations under this section may, in particular—
(a)
make provision for the revision or replacement of the school’s
35
instrument of government and the reconstitution of its governing body,
(b)
make provision for the transfer of property, rights and liabilities,
(c)
make provision about the manner in which, and time within which,
anything required or authorised by the regulations must be done.
(3)
Regulations made by virtue of subsection (2)(b) may make provision about any
40
of the matters mentioned in section 24(5)(a) to (i).
(4)
Where—
(a)
any land forming part of the school premises (“the excluded land”) is
not transferred to the governing body, and
(b)
the governing body, a local education authority or a prescribed person
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has incurred capital expenditure in relation to the excluded land or in

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
22

relation to other land the proceeds of the disposal of which were used
to acquire or enhance the value of the excluded land,

regulations under this section may authorise or require the foundation to pay
any part of the value of the excluded land to the governing body, the local
education authority or a prescribed person.
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(5)
Where—
(a)
any land forming part of the school premises (“the transferred land”) is
transferred to the governing body, and
(b)
the foundation has incurred capital expenditure in relation to the
transferred land or in relation to other land the proceeds of the disposal
10
of which were used to acquire or enhance the value of the transferred
land,

regulations under this section may authorise or require the governing body to
pay any part of the value of the transferred land to the foundation.
(6)
Regulations under this section may require any prescribed person, in
15
exercising functions under the regulations, to have regard to any guidance
given from time to time by the Secretary of State.
(7)
The implementation of proposals under section 25 is not to be taken as
authorising any change in the religious character of the school or the loss of
religious character.
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(8)
In this section “foundation” means a foundation established otherwise than
under SSFA 1998.
General
28
Restriction on establishment, alteration or discontinuance of schools
(1)
Except in pursuance of proposals falling to be implemented under this Part or
25
Schedule 7 or 7A to the Learning and Skills Act 2000 (c. 21)—
(a)
no maintained school may be established or discontinued;
(b)
no prescribed alteration may be made to a maintained school.
(2)
In subsection (1)(b) “prescribed alteration”, in relation to a maintained school,
means an alteration prescribed under section 18.
30
(3)
Subsection (1) has effect subject to—
(a)
sections 17(5) and 67(4) (which relate to powers of the Secretary of State
to require a maintained school to be discontinued), and
(b)
section 30(9) of SSFA 1998 (notice by governing body to discontinue
foundation or voluntary school).
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(4)
Except in pursuance of proposals falling to be implemented under section 27,
no alteration falling within section 25(4)(a) or (b) may be made to a foundation
or foundation special school.
29
Abolition of school organisation committees
Section 24 of, and Schedule 4 to, SSFA 1998 (which require local education
40
authorities in England to establish a school organisation committee for their
area) cease to have effect.

Education and Inspections Bill
Part 2 — Establishment, discontinuance or alteration of schools
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30
Amendments relating to school organisation
Schedule 3 contains amendments relating to school organisation.
31
Transitional provisions
(1)
The Secretary of State may by regulations make such transitional provision as
he considers appropriate in connection with the commencement of this Part.
5
(2)
Regulations under this section may, in particular, make provision with respect
to—
(a)
the determination or implementation of proposals made under the
previous enactments,
(b)
references made to school organisation committees or adjudicators
10
under the previous enactments.
(3)
This section does not limit the powers conferred by section 181.
(4)
In this section “the previous enactments” means—
(a)
sections 28, 28A, 29, 31 and 35 of, and Schedules 6 and 8 to, SSFA 1998
(establishment, alteration, discontinuance or change of category of
15
schools) so far as applying to England, and
(b)
sections 66 and 67 of, and Schedules 10 and 11 to, EA 2005.
32
Interpretation of Part 2
(1)
In this Part, except where the contrary intention appears—
“adjudicator” is to be read in accordance with section 25(3) of SSFA 1998;
20
“discontinue”, in relation to a maintained school, is to be read in
accordance with section 15(8);
“foundation”, in relation to a foundation or voluntary school, has (subject
to sections 25(8) and 27(8)) the meaning given by section 21(3) of SSFA
1998;
25
“local education authority”, in relation to a school maintained (or
proposed to be maintained) by a local education authority, means that
authority;
“maintain”, in relation to a maintained school, has the same meaning as in
SSFA 1998;
30
“maintained school” means any of the following schools in England—
(a)
a community, foundation or voluntary school,
(b)
a community or foundation special school, or
(c)
a maintained nursery school;
“prescribed” means prescribed by regulations;
35
“regulations” means regulations made under this Part by the Secretary of
State.
(2)
For the purposes of this Part, a foundation or voluntary school has a religious
character if it is designated by order under section 69(3) of SSFA 1998 as a
school having such a character.
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Education and Inspections Bill
Part 3 — Further provisions about maintained schools
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Part 3
Further provisions about maintained schools
Foundation, voluntary and foundation special schools
33
Requirements as to foundations
(1)
After section 23 of SSFA 1998 insert—
5
“23A
Foundation and foundation special schools: requirements as to
foundations
(1)
This section applies to any foundation or foundation special school
having a foundation if any one or more of the following conditions is
met.
10
(2)
Condition A is that the school was established as a foundation or
foundation special school in pursuance of proposals falling to be
implemented under Schedule 2 to the Education and Inspections Act
2006.
(3)
Condition B is that the school—
15
(a)
acquired its foundation, or
(b)
became a school whose instrument of government provides for
the majority of governors to be foundation governors,

in pursuance of proposals falling to be implemented under regulations
under section 24 of that Act.
20
(4)
Condition C is that the school changed category from voluntary aided
school to foundation school in pursuance of proposals falling to be
implemented under regulations under section 24 of that Act and has an
instrument of government providing for the majority of governors to
be foundation governors.
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(5)
No institution may act as the foundation of a school to which this
section applies unless—
(a)
it is a body corporate of a prescribed description,
(b)
it is a charity (whether by virtue of section 23(3) or otherwise),
and
30
(c)
it has as its purpose, or one of its purposes, the advancement of
the education of pupils at the school or schools in respect of
which it acts as the foundation.
(6)
The foundation of a school to which this section applies shall, in
carrying out its functions in relation to the school, promote community
35
cohesion.
(7)
Where any members of the foundation are to be local authorities or
persons appointed by local authorities, the proportion of voting rights
exercisable by such members must not exceed 20 per cent. of the total
voting rights exercisable by members.
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(8)
Where any of the charity trustees in relation to the foundation are to be
appointed by local authorities—

Education and Inspections Bill
Part 3 — Further provisions about maintained schools
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(a)
the proportion of the charity trustees who are appointed by
local authorities must not exceed 20 per cent. of the total
number of charity trustees, and
(b)
the voting rights exercisable by the charity trustees who are
appointed by local authorities must not exceed 20 per cent. of
5
the total voting rights exercisable by charity trustees.
(9)
Regulations may disqualify persons from acting as charity trustee in
relation to a school to which this section applies.
(10)
In this section and section 23B—
“charity” has the same meaning as in the Charities Act 1993;
10
“charity trustee”, in relation to a school to which this section
applies, means any individual who is for the purposes of the
Charities Act 1993 a charity trustee in relation to the school’s
foundation;
“foundation” means a foundation established otherwise than
15
under this Act;
“institution” has the same meaning as in the Charities Act 1993;
“purpose” includes object.
23B
Powers of Secretary of State in relation to charity trustees of
foundations
20
(1)
Regulations may make provision enabling the Secretary of State in
prescribed cases by direction—
(a)
to remove any charity trustee of a school to which section 23A
applies, even though the person is not disqualified by virtue of
subsection (9) of that section;
25
(b)
to appoint a person to be a charity trustee of such a school
(whether in place of a trustee removed by him under paragraph
(a) or otherwise).
(2)
Regulations under subsection (1) may make provision as to the effect of
a direction given by the Secretary of State under the regulations, and
30
may in particular provide for any such direction to have the same effect
as an order of the Charity Commission for England and Wales under
section 18 of the Charities Act 1993 for the removal or appointment of
a charity trustee.
(3)
Nothing in this section affects the powers of the Charity Commission
35
for England and Wales under any enactment.”
(2)
In relation to any time before the commencement of section 1A(1) of the
Charities Act 1993 (c. 10) (which provides for the establishment of the Charity
Commission for England and Wales as a body corporate), any reference in
section 23B of SSFA 1998 (as inserted by subsection (1) of this section) to the
40
Charity Commission for England and Wales is to be read as a reference to the
Charity Commissioners for England and Wales.
34
Parent councils for certain foundation or foundation special schools
After section 23 of EA 2002 insert—
“23A
Parent councils
45
(1)
A school is for the purposes of this section a “qualifying school” if—

Education and Inspections Bill
Part 3 — Further provisions about maintained schools
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(a)
it is a foundation or foundation special school in England,
(b)
it has a foundation established otherwise than under the School
Standards and Framework Act 1998, and
(c)
the instrument of government for the school provides that the
majority of governors are to be foundation governors.
5
(2)
The governing body of any qualifying school must establish in
accordance with regulations a body to be known as a parent council.
(3)
The purpose of a parent council is to advise the governing body on
matters relating to the conduct of the school and the exercise by the
governing body of their powers under section 27.
10
(4)
Regulations may make provision as to—
(a)
the person or persons by whom, and the manner in which,
members of a parent council are to be elected or appointed,
(b)
eligibility for election or appointment,
(c)
the duration of membership, and
15
(d)
meetings and proceedings of a parent council.
(5)
Regulations—
(a)
must require the majority of members of a parent council to be
parent members, and
(b)
may enable a person who is not the parent of a registered pupil
20
to be a member of a parent council if appointed in accordance
with the regulations by the parent members.
(6)
Regulations may confer functions relating to parent councils on the
governing bodies of qualifying schools.
(7)
The governing body of a qualifying school must, in exercising their
25
functions under this section with respect to the school’s parent council,
have regard to any guidance given from time to time by the Secretary
of State.
(8)
The reference in subsection (1)(b) to a foundation is to be read in
accordance with section 21 of the School Standards and Framework Act
30
1998.
(9)
In this section “parent member”, in relation to a parent council, means
a member of the council who is the parent of a registered pupil at the
school.”
35
Funding of voluntary aided schools: meaning of “capital expenditure”
35
(1)
Part 2 of Schedule 3 to SSFA 1998 (funding of voluntary aided schools) is
amended as follows.
(2)
In paragraph 3, as it applies in relation to England, omit sub-paragraph (3) (the
definition of “capital expenditure” for the purposes of the Schedule).
(3)
After paragraph 9 insert—
40
“Meaning of “capital expenditure”
9A    (1)
This paragraph applies for the purposes of this Schedule as it applies
in relation to England.