The Education (Change of Category of Maintained Schools) (England Regulations 2000

Regulation 13

SCHEDULE 5 INSTRUMENTS OF GOVERNMENT: PROVISIONS OF SCHEDULE 12 TO THE ACT AS MODIFIED BY PART VI OF SCHEDULE 4 TO THESE REGULATIONS

1.—(2) The manner in which the governing body are to be constituted, as set out in the instrument, must conform with the provisions of—

(a) Part II of Schedule 9, and

(b) any regulations made under paragraph 15 of that Schedule,

as they apply to a school of the category to which the school will belong.

(3) Where, for the purposes of any provision of that Part of that Schedule, it is material to determine the number of registered pupils at that school, that number shall be determined as at the date when the instrument is made.

(4) The instrument shall (subject to any other statutory provision) comply with any trust deed relating to the school.

Making of instruments of government

2.—(1) Paragraph 3 shall apply in connection with the making of an instrument of government for a school changing its category in accordance with Schedule 8.

Procedure for making instrument

3.—(1) The governing body shall prepare a draft of the new instrument of government and submit it to the local education authority.

(2) Where the school has foundation governors or it is proposed that the school will have foundation governors, the governing body shall not submit the draft to the local education authority unless the following persons have agreed to the contents of the draft, namely—

(a) the existing foundation governors;

(b) if there are no existing foundation governors, the persons whom it is proposed will be entitled to appoint foundation governors;

(c) any trustees under a trust deed relating to the school; and

(d) in the case of a Church of England school or Roman Catholic Church school, the appropriate diocesan authority.

(3) On receiving the draft the authority shall consider whether it complies with all applicable statutory provisions, and if—

(a) the authority are content with the draft, or

(b) there is agreement between the authority, the governing body and (if the school has foundation governors or it is proposed that the school will have foundation governors) the persons mentioned in sub-paragraph (2) that the draft should be revised to any extent,

the instrument shall be made by order of the authority in the form of the draft or (as the case may be) in the form of the revised draft.

(4) If, in the case of a school which has foundation governors or it is proposed should have foundation governors, there is at any time disagreement as to the contents of the draft among the bodies and persons mentioned in sub-paragraph (3)(b), any of those bodies or persons may refer the draft to the Secretary of State; and on such a reference the Secretary of State shall give such direction as he thinks fit having regard, in particular, to the category of school to which it is proposed the school should belong.

(5) If neither of paragraphs (a) and (b) of sub-paragraph (3) applies in the case of a school which does not have foundation governors or it is not proposed should have foundation governors, the authority shall—

(a) notify the governing body of the reasons why they are not content with the draft instrument, and

(b) give the governing body a reasonable opportunity to reach agreement with the authority on revising the draft;

and the instrument shall be made by order of the authority either in the form of a revised draft agreed between the authority and the governing body or (in the absence of such agreement) in such form as the authority think fit having regard, in particular, to the category of school to which it is proposed the school should belong.

(6) When taking any decision as to the name of the school the governing body, the authority and (if the school has foundation governors or it is proposed should have foundation governors) the persons mentioned in sub-paragraph (2), shall have regard to any guidance given from time to time by the Secretary of State.

(7) Nothing in this paragraph requires the agreement of, or enables any objection to be made by, any body or person to any part of a draft instrument that reflects any decision taken by the governing body or any other person which the governing body or that person is required or authorised to take by virtue of any statutory provision.

Review of instruments of government

4.—(1) The governing body or the local education authority may review the instrument at any time after it is made.

(2) The governing body or the authority shall review the instrument on such occasions as may be prescribed; and regulations may require the instrument to be varied at the instance of the governing body in such circumstances as may be prescribed.

(3) Where—

(a) on any review the governing body or the authority decide that the instrument should be varied, or

(b) any regulations under sub-paragraph (2) require the instrument to be varied,

the governing body or (as the case may be) the authority shall notify the other of their proposed variation.

(4) Where the governing body have received a notification under sub-paragraph (3), they shall notify the authority as to whether or not they are content with it.

(5) Where the school has foundation governors, the governing body shall not give the authority—

(a) any notification under sub-paragraph (3), or

(b) any notification under sub-paragraph (4) to the effect that they are content with the authority’s proposed variation,

unless the persons mentioned in paragraph 3(2) have agreed to the proposed variation.

(6) If—

(a) both the governing body and the authority are content with a proposed variation as notified under sub-paragraph (3), or

(b) there is agreement between the authority, the governing body and (if the school has foundation governors) the persons mentioned in paragraph 3(2) that some other variation should be made instead,

the instrument shall be varied accordingly by order of the authority.

(7) If, in the case of a school which has foundation governors, there is at any time disagreement as to the proposed variation among the bodies and persons mentioned in sub-paragraph (6)(b), any of those bodies or persons may refer the proposed variation to the Secretary of State; and on such a reference the Secretary of State shall give such direction as he thinks fit having regard, in particular, to the category of school to which the school belongs.

(8) If neither of paragraphs (a) and (b) of sub-paragraph (6) applies in the case of a school which does not have foundation governors, the authority shall—

(a) notify the governing body of the reasons—

(i) why they are not content with the governing body’s proposed variation, or

(ii) why they wish to proceed with their own proposed variation,

as the case may be, and

(b) give the governing body a reasonable opportunity to reach agreement with the authority on revising the variation;

and the instrument shall be varied by order of the authority either in the manner agreed between the authority and the governing body or (in the absence of such agreement) in such manner as the authority think fit having regard, in particular, to the category of school to which the school belongs.

(9) Where there is no such agreement (and no variation is required by regulations under sub-paragraph (2)), sub-paragraph (8) does not require the authority to vary the instrument if they consider it appropriate not to do so.

(10) The following requirements under paragraph 3, namely—

(a) the requirement under sub-paragraph (3) for the authority to consider compliance with all applicable statutory provisions, and

(b) the requirement under sub-paragraph (6) to have regard, in connection with the name of the school, to guidance given by the Secretary of State,

shall apply in relation to a proposed variation of an instrument of government as they apply in relation to a draft of such an instrument.

(11) Where an instrument of government is varied under this paragraph—

(a) the instrument shall set out the date on which the variation takes effect, and

(b) paragraph 1(3) shall apply in relation to any variation relating to the manner in which the governing body are to be constituted as if it referred to the date when the variation is made rather than the date when the instrument is made.

(12) Nothing in this paragraph requires the agreement of, or enables any objection to be made by, any body or person to any proposed variation that reflects any decision taken by the governing body or any other person which the governing body or that person is required or authorised to take by virtue of any statutory provision.

Other requirements relating to instruments of government

5.  Regulations may make provision imposing on local education authorities requirements with respect to the provision of—

(a) copies of instruments of government made or varied by them; or

(b) information relating to such instruments.