Section 12: Establishment of a school as a federated school

72.     This section re-enacts the provisions of section 68 of the 2005 Act in respect of England. It provides that a new maintained school may be a member of a federation from the outset.

Section 13: Schools established outside area of relevant LEA

73.     This section provides that regulations may modify sections 7 to 12 and Schedule 2 where a school is proposed to be situated in an area different from that of the local education authority who published the notice under section 7, or, if the proposals are published outside a competition (that is, under sections 10 or 11), different from that of the local education authority who it is proposed should maintain the school.

Section 14: LEA in England not to establish a school in Wales

74.     This section re-enacts section 69 of the 2005 Act in respect of England and has the effect that the power of a local education authority to establish and maintain a school within the area of another local education authority does not apply if the other local education authority is situated in Wales.

Section 15 and Schedule 2: Proposals for discontinuance of schools maintained by a local education authority

75.     This section 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 maintained mainstream schools, special schools and nursery schools.

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

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

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

79.     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.

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

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

Section 16: Consultation in relation to proposals under section 15

82.     In relation to England this section 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.

83.     Subsection (1) requires the body proposing to close a rural primary school or special school, under section 15, 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.

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

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

Section 17: Direction requiring discontinuance of community or foundation special school

86.     This section re-enacts section 32 of the 1998 Act in its application to England.

87.     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.

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

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

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

91.     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.

Section 18: Alterations that may be made under section 19

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

93.     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.

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

95.     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.

Section 19: Publication of proposals for alteration of school

96.     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.

97.     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;

• in the case of foundation schools or voluntary schools, an enlargement of the premises, an increase in the number of pupils in any relevant age group, the establishment or discontinuance of special educational needs provision, or the establishment of provision suitable for pupils over compulsory school age; and

• in the case of foundation special schools, an enlargement of the premises, an increase in the number of pupils for whom the school is organised to make provision, or a change in the type of special educational needs for which the school is organised to make provision.

98.     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 section, 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.

99.     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.).

100.     Subsection (5) provides for the section to have effect subject to section 20.

Section 20: Restriction on power of governing body to publish foundation proposals

101.     This section provides that

     a)     a foundation school which, immediately before the day Part 2 comes into force, was a foundation school with a foundation,

     b)     a voluntary school, or

     c)      a foundation school which having been a voluntary school immediately before the day Part 2 comes into force, changed category to foundation school on or after that date

may only publish certain proposals under section 19 with the consent of the school's existing trustees, and of anyone by whom the foundation governors are appointed.

Section 21: Proposals under section 19: procedure

102.     This section provides that regulations may make provision about the publication and determination of proposals under section 19. 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.

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

104.     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.)

105.     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.

Section 22: Right of governing body to determine own foundation proposals

106.     Subsections (1) to (3) provide that regulations under section 21, in relation to proposals under section 19 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.

107.     Subsections (4) and (5) provide that, in relation to certain proposals published under section 19 by a governing body which involve the acquisition of a foundation, or result in the majority of the governors being foundation governors, regulations under section 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.

Section 23: Rights of interested bodies in relation to proposals under section 21

108.     This section provides that regulations made under section 21 must make provision in connection with the referral of certain proposals to the adjudicator in certain circumstances.

109.     Subsection (1) provides that if regulations made under section 21 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.

110.     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.

111.     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.

112.     Subsection (4) provides that if regulations made under section 21 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 section 22 restricts or excludes the possibility of a reference to the adjudicator.

113.     Subsection (5) provides that, if regulations made under section 21 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.

Section 24: Proposals under section 19: implementation

114.     This section 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).

115.     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.

116.     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.

117.     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.

118.     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.

Section 25: Proposals for removal of foundation or reduction in foundation governors

119.     This section 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.

120.     Subsection (1) provides for this section to apply to foundation and foundation special schools where either or both of two conditions is met.

121.     Subsection (2) sets out the first condition, which is that the school was established pursuant to proposals implemented under the Act.

122.     Subsection (3) sets out the second condition, which is that the school acquired its foundation pursuant to proposals implemented under the Act.

123.     Subsection (4) enables the governing body of a school meeting either of these conditions 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.

124.     Subsection (5) 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 (4), in accordance with procedures set out in regulations.

125.     Subsection (6) provides that the governing body is not required to publish proposals under subsection (5) (proposals required to be published by the prescribed proportion of governors) at any time within a prescribed period beginning with the date on which (a) proposals for either the establishment of the school, the acquisition of the foundation, a relevant change in instrument of government or a change of category to foundation or foundation special school were implemented under the Act (and regulations made under the Act) or (b) proposals published under subsection (5) were rejected.

126.     Subsection (7) defines the term "relevant change" for the purposes of subsection (6), that is a change to the instrument of government which results in the majority of governors being foundation governors.

127.     Subsection (8) defines the term "foundation" for the purposes of the section.

Section 26: Proposals under section 25: procedure

128.     This section provides for regulations to make provision about the publication and determination of proposals under section 25.

129.     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.

130.     Subsection (3) provides for regulations to require the governing body to ensure that any matters related to the transfer of land or compensation which might be payable under subsections (3) or (4) of section 27, if proposals published under section 25 were approved, are resolved before proposals are published. It also provides for regulations to enable or require such matters to be referred to the adjudicator for determination.

131.     Subsection (4) provides that regulations may require any prescribed person to have regard to guidance by the Secretary of State when exercising functions under this section.

Section 27: Proposals under section 25: implementation

132.     This section provides for regulations to make provision about the implementation of proposals published under section 25.

133.     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.

134.     Subsection (3) provides that regulations made under subsection (2)(b) may make provision relating to the matters mentioned in section 24(5)(a) to (i). Section 24(5)(a) to (i) set out a detailed list of matters relating to the transfer of property, rights and liabilities.

135.     Subsection (4) provides that regulations may authorise or require a foundation to pay compensation to the governing body, local authority or a prescribed person where they have 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.

136.     Subsection (5) 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.

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

138.     Subsection (7) makes clear that the implementation of proposals under section 25 does not authorise any change to, or loss of, the religious character of a school.

139.     Subsection (8) defines the term "foundation" for the purposes of the section.

Section 28: Restriction on establishment, alteration or discontinuance of schools

140.     This section 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.

141.     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 (e.g. 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.

142.     Subsection (4) prohibits the making, without the publication and determination of statutory proposals, of 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.

Section 29: Abolition of school organisation committees

143.     This section has the effect of abolishing school organisation committees.

Section 30: Amendments relating to school organisation

144.     This section 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 Act 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 committee as decision-maker by the local education authority (in England).

Section 31: Transitional provisions

145.     This section provides that the Secretary of State may make such transitional provisions as he considers appropriate in connection with the commencement of this Part.

Section 32: Interpretation of Part 2

146.     This section defines terms used in Part 2 of the Act.

PART 3: FURTHER PROVISIONS ABOUT MAINTAINED SCHOOLS

Section 33: Requirements as to foundations

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

148.     New section 23A(1) provides for section 23A to apply to foundation and foundation special schools where one or more of three conditions is met.

149.     The first condition, set out in subsection (2) of the new section 23A, is that the school was established as a foundation or foundation special school pursuant to proposals implemented under the Act.

150.     The second condition, set out in subsection (3) of the new section 23A, is that the school acquired its foundation, or became a school whose instrument of government provides for the majority of governors to be foundation governors pursuant to proposals implemented under the Act.

151.     The third condition, set out in subsection (4), is that the school has changed category from voluntary aided to foundation school pursuant to proposals implemented under the Act. References in this explanatory note to "foundations" and "charity trustees" are to the foundations and charity trustees of the schools to which the new section 23A applies only.

152.     Section 23A(5) provides that a foundation must be incorporated and must also be a charity (as defined in the Charities Act 1993). It also provides that a foundation must have as its purposes, or as one of its purposes, the charitable purpose of the advancement of education. Section 23A(6) requires the foundation to promote community cohesion in carrying out its functions in relation to the school.

153.     Section 23A(7) 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(8) 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).

154.     Section 23A(9) enables regulations to prescribe people who are to be disqualified from acting as trustees. Section 23A(10) defines the terms used in sections 23A and 23B.

155.     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 to which section 23A applies, even if the person is not otherwise disqualified; and to appoint a charity trustee to such a school.

156.     Section 23B(2) enables 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.

157.     Subsection (2) of the section 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 Charities Act 2006 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.