Education Reform Act 1988 (c. 40)

(The document as of February, 2008)

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(a) for the exercise by the prospective governing body in relation to the school, in such circumstances and in such manner and subject to such conditions as may be specified in the order, of any power so specified corresponding to any of the powers that would by virtue of section 57 of this Act be exercisable by the initial governing body of the school on its incorporation, including in particular power--

(i) to appoint members of staff to take up employment on or after the incorporation date in relation to the school;

(ii) to enter into contracts for the purpose of or in connection with the conduct of the school on or after that date; and

(iii) to determine the arrangements for admission of pupils to the school that are to apply in the first school year beginning on or after that date;

(b) excluding or modifying any powers of the local education authority or of the existing governing body in relation to any matter to which any power exercisable by the prospective governing body in accordance with any provision made by virtue of paragraph (a) above applies;

(c) enabling the prospective governing body, instead of the existing governing body, to give or withhold any consent or agreement required for the purposes of any provision of section 76 or 78 of this Act;

(d) enabling the prospective governing body, at any time before the incorporation date, to exercise the power in section 77(3) or (4) of this Act to repudiate any contract to which that subsection applies;

(e) for--

(i) requiring the prospective governing body to be consulted before the local education authority or the existing governing body exercise in relation to the school any function of a description specified in the order or take in relation to the school any action of a description so specified; or

(ii) requiring or enabling the prospective governing body to participate in the exercise in relation to the school of any such function or in the taking in relation to the school of any such action;

in such circumstances and in such manner as may be so specified; and

(f) with respect to the proceedings of the prospective governing body and the authentication of their actions (including the making or issue of any instrument by them or on their behalf).

3 (1) The Secretary of State may make grants to the prospective governing body in respect of expenditure incurred or to be incurred by them in pursuance of any provision made by an order under paragraph 1 above.

(2) The Secretary of State may impose on a prospective governing body to whom any such payment is made such requirements as he may from time to time determine (whether before, at or after the time when the payment in question is made).

4 The duty of a local education authority to maintain a school in respect of which proposals for acquisition of grant-maintained status have been approved shall not apply in relation to any expenses incurred by the prospective governing body of the school.

5 At any time on or after the date on which he approves any such proposals the Secretary of State may consult the prospective governing body with respect to the provisions he proposes to include in the instrument and articles of government for the school.

6 On and after the incorporation date in relation to a grant-maintained school--

(a) any appointment made, contract entered into or other thing done by the prospective governing body in pursuance of any provision made by an order under paragraph 1 above, so far as subsisting or in force immediately before that date, shall be treated as having been made, entered into or done by the initial governing body; and

(b) any consultations with the prospective governing body which have taken place under paragraph 5 above shall be treated for the purposes of section 59(2) of this Act as consultations with the initial governing body;

and any property acquired by the prospective governing body for the purposes of or in connection with the doing of anything in pursuance of any provision so made shall on that date be transferred to, and by virtue of this Act vest in, the initial governing body.

Transition from initial governing body to regulation by instrument of government

7 A person who is a governor of any category (within the meaning of section 64 of this Act) on the initial governing body of a grant-maintained school shall be treated for the purposes of any provision made by the instrument of government for that school by virtue of section 53 of this Act as a governor of that category (within the meaning of section 53).

8 Where the number of governors of any category for such a school provided for by the instrument of government for the school is less than the number required for that category by section 64 of this Act, no vacancy shall be treated as arising for governors of that category by virtue of any governor of that category's ceasing to hold office until the number of governors of that category on the governing body falls below the number provided for by the instrument of government.

Proceedings and tenure of office

9 The proceedings of the governing body of such a school shall not be invalidated by any defect in any procedure required under Chapter IV of Part I of this Act in relation to the selection or nomination of any person to hold office as a governor on the initial governing body.

10 No provision of the instrument of government for such a school made by virtue of subsection (1) or (4) of section 56 of this Act shall affect the term of office of any member of the initial governing body of the school.

11 In relation to a member of the initial governing body of such a school, subsection (6) of that section shall have effect as if the reference in that subsection to the preceding provisions of that section included a reference to the provisions of section 65 of this Act.

12 For the purposes of subsection (10) of section 56, a foundation governor on the initial governing body of the school shall be treated as having been appointed by the person or persons (if any) named in the instrument of government in accordance with subsection (2)(b) of that section.

Section 120.

SCHEDULE 6 Courses of Higher Education

1 The descriptions of courses referred to in sections 120(1) and 235(2)(e) of this Act are the following--

(a) a course for the further training of teachers or youth and community workers;

(b) a post-graduate course (including a higher degree course);

(d) a course for the Diploma of Higher Education;

(e) a course for the Higher National Diploma or Higher National Certificate of the Business & Technician Education Council, or the Diploma in Management Studies;

(f) a course for the Certificate in Education;

(g) a course in preparation for a professional examination at higher level;

(h) a course providing education at a higher level (whether or not in preparation for an examination).

2 For the purposes of paragraph 1(g) above a professional examination is at higher level if its standard is higher than the standard of examinations at advanced level for the General Certificate of Education or the examination for the National Certificate or the National Diploma of the Business & Technician Education Council.

3 For the purposes of paragraph 1(h) above a course is to be regarded as providing education at a higher level if its standard is higher than the standard of courses providing education in preparation for any of the examinations mentioned in paragraph 2 above.

Section 123.

SCHEDULE 7 The Higher Education Corporations

Preliminary

1 (1) A higher education corporation established under section 121 of this Act for the purpose of conducting any institution shall be established initially under the name given as the name of that institution in the order under that section specifying that institution.

(2) A higher education corporation established under section 122 of this Act shall be established initially under the name given in the order under that section establishing the corporation.

(3) Below in this Schedule--

(a) references to a corporation are references to any higher education corporation; and

(b) references, in relation to a corporation, to the institution are references--

(i) in relation to any time before the transfer date applicable in relation to the corporation, to the institution the corporation is established to conduct; and

(ii) in relation to any later time, to any institution for the time being conducted by the corporation in exercise of their powers under this Act.

(4) The Secretary of State may by order change the name of a corporation.

Initial constitution

2 (1) Paragraphs 3 and 4 below provide for the initial constitution of a corporation and are subject to paragraph 6 below.

(2) References below in this Schedule, in relation to a corporation, to a variable category of members are references to any category of members in relation to which the number applicable in accordance with paragraphs 3 and 4 below is subject to variation.

3 (1) A corporation shall consist of--

(a) not less than twelve and not more than twenty-four members appointed in accordance with the following provisions of this Schedule; and

(b) the person who is for the time being the principal of the institution, unless he chooses not to be a member.

(2) Of the appointed members--

(a) up to thirteen (referred to below in this Schedule as the independent members) shall be persons appearing to the appointing authority to have experience of, and to have shown capacity in, industrial, commercial or employment matters or the practice of any profession;

(b) not less than four and not more than eight (referred to below in this Schedule as the initial nominee members) shall be persons nominated in accordance with this Schedule otherwise than by other members of the corporation;

(c) at least one and not more than four (referred to below in this Schedule as the additional nominee members) shall be persons nominated in accordance with this Schedule by the members of the corporation who are either independent members or initial nominee members and the principal of the institution (if he is a member).

(3) The members of the corporation for the time being shall be known as the board of governors of the institution.

4 (1) The initial nominee members of a corporation shall consist of--

(a) at least one and not more than three local authority nominees;

(b) one teacher nominee;

(d) one student nominee;

and may include up to two academic nominees.

(2) In this Schedule--

"local authority nominee" means a person, other than a person employed at the institution (whether or not as a teacher) or a student at the institution, nominated by a local authority specified in relation to the corporation in an order made by the Secretary of State;
"teacher nominee" means a teacher at the institution nominated by the teachers at the institution;
"general staff nominee" means a person employed at the institution otherwise than as a teacher and nominated by the persons so employed;
"student nominee" means a student at the institution nominated by the students at the institution; and
"academic nominee" means a teacher at the institution nominated by the academic board.

(3) Of the additional nominee members of a corporation--

(a) the one required by paragraph 3(2)(c) above shall be a person who has experience in the provision of education; and

(b) the three others permitted by paragraph 3(2)(c) are--

(i) one person who has such experience; and

(ii) two persons who need not have such experience.

(4) In the case of any corporation, a person who is--

(a) employed at the institution (whether or not as a teacher);

(b) a full-time student at the institution; or

is not eligible for appointment as an independent member or as an additional nominee member of the corporation.

(5) For the purposes of this paragraph, a person who is not for the time being enrolled as a student at the institution shall be treated as such a student during any period when he has been granted leave of absence from the institution for the purposes of study or travel or for carrying out the duties of any office held by him in the student union at the institution.

(6) It shall be for the appointing authority to determine any question as to whether any person is qualified in accordance with the preceding provisions of this paragraph for appointment as a member of a corporation of any description or category.

(7) Before making an order specifying local authorities in relation to any corporation for the purposes of sub-paragraph (1)(a) above, the Secretary of State shall consult such associations of local authorities as appear to him to be concerned.

Initial appointments

5 (1) The Secretary of State is the appointing authority for the purposes of this Schedule in relation to the appointment of the first members of a corporation.

(2) In determining the number of members to appoint within each variable category, he shall secure that at least half of all the members of the corporation as first constituted are independent members.

Determination of membership numbers

6 (1) Following the appointment by the Secretary of State of the first members of a corporation, the corporation shall make a determination with respect to their membership numbers under this paragraph.

(2) Such a determination shall fix the number of members of each variable category of which the corporation are to consist, subject to the limits applicable in relation to that category under paragraphs 3 and 4 above.

(3) In making a determination under this paragraph, the corporation shall secure that at least half of all the members of the corporation, when constituted in accordance with the determination, will be independent members.

(4) A determination under this paragraph shall not have effect so as to terminate the appointment of any person who is a member of the corporation at the time when it takes effect.

(5) A determination under this paragraph may be varied by a subsequent determination under this paragraph.

Subsequent appointments

7 (1) Appointments of members of a corporation at any time after the appointment by the Secretary of State of the first members shall be subject to this paragraph.

(2) No such appointment may be made before the first determination of the corporation under paragraph 6 above takes effect.

(3) The corporation are the appointing authority for the purposes of this Schedule in relation to the appointment of any member of the corporation other than an independent member.

(4) Where an appointment of an additional independent member of the corporation falls to be made in consequence of a determination under paragraph 6 above, the appointing authority for the purposes of this Schedule in relation to the appointment--

(a) shall be the corporation if the appointment is made within the period of three months beginning with the date of the determination; or

(b) if the appointment is not made within that period, shall be the current independent members of the corporation.

(5) Where a vacancy in the office of an independent member of the corporation arises on any existing independent member ceasing to hold office on the expiry of his term of office--

(a) his successor shall not be appointed more than six months before the expiry of that term; and

(b) the appointing authority for the purposes of this Schedule in relation to the appointment of his successor--

(i) shall be the corporation if the appointment is made not less than three months before the expiry of that term; or

(ii) if the appointment is not so made, shall be the current independent members of the corporation.

(6) Where a vacancy in the office of an independent member of the corporation arises on the death of any such member or on any such member ceasing to hold office under paragraph 8(2) or 10 below, the appointing authority for the purposes of this Schedule in relation to the appointment of his successor--

(a) shall be the corporation if the appointment is made within the period of three months beginning with the date of death or the date of the notice under paragraph 8(2) or 10 below (as the case may be); or

(b) if the appointment is not made within that period, shall be the current independent members of the corporation.

(7) No appointment of an independent member of the corporation by the corporation under sub-paragraph (4)(a), (5)(a) or (6)(a) above shall be made unless the appointment has been approved by the current independent members of the corporation.

General provisions with respect to qualifications of members and tenure of office

8 (1) A member of a corporation shall hold and vacate office in accordance with the terms of his appointment and shall, on ceasing to be a member, be eligible for re-appointment.

(2) A member of a corporation may at any time by notice in writing to the corporation resign his office.

(3) Where a member of a corporation appointed as a teacher nominee, an academic nominee, a general staff nominee or a student nominee ceases before the end of his term of office to be qualified in accordance with paragraph 4 above for appointment as a nominee of the description in question his office shall thereupon become vacant.

9 (1) Subject to the following provisions of this paragraph, a person is not qualified for appointment as a member of a corporation at any time when he is under the age of eighteen or over the age of seventy.

(2) A person over the age of seventy shall not by virtue of sub-paragraph (1) above be disqualified for appointment as a member of the corporation where--

(a) the appointing authority in relation to the appointment is the Secretary of State; or

(b) the appointing authority in relation to the appointment determine to make the appointment by a vote representing an absolute majority of all the members of that authority (whether or not taking part in the vote).

(3) It shall be for the appointing authority in relation to the appointment in question to determine any question arising under sub-paragraph (1) above with respect to a person's qualification for appointment as a member of the corporation.

10 If at any time a corporation are satisfied that any member of the corporation--

(a) has been absent from meetings of the corporation for a period longer than twelve consecutive months without the permission of the corporation; or

(b) is unable or unfit to discharge the functions of a member;

the corporation may by notice in writing to that member remove him from office; and thereupon the office shall become vacant.

Allowances to members

11 A corporation shall have power to pay to the members of the corporation such travelling, subsistence or other allowances as the corporation may determine.

Election of chairman

12 (1) The members of a corporation shall elect a chairman from among their number.

(2) The chairman shall hold office for such period as the corporation may determine.

(3) A member of a corporation who is employed at the institution or a student at the institution is not eligible for election as chairman of the corporation.

Committees

13 (1) A corporation may establish a committee for any purpose.

(2) The number of members of a committee established under this paragraph, and the terms on which they are to hold and vacate office, shall be fixed by the corporation.

(3) Such a committee may include persons who are not members of the corporation.

Proceedings

14 The validity of any proceedings of a corporation or of any committee of a corporation shall not be affected by a vacancy amongst the members or by any defect in the appointment or nomination of a member.

15 In the event of an equality of votes at any meeting of a corporation the chairman of the corporation shall have a second or casting vote.

Application of seal and proof of instruments

16 The application of the seal of the corporation shall be authenticated by the signature of the chairman of the corporation or of some other member authorised either generally or specially by the corporation to act for that purpose together with that of any other member.

17 Every document purporting to be an instrument made or issued by or on behalf of a corporation and to be duly executed under the seal of the corporation, or to be signed or executed by a person authorised by the corporation to act in that behalf shall be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

Accounts

18 (1) It shall be the duty of each corporation--

(a) to keep proper accounts and proper records in relation to the accounts; and

(b) to prepare in respect of each financial year of the corporation a statement of accounts.

(2) The statement shall--

(a) give a true and fair account of the state of the corporation's affairs at the end of the financial year and of the corporation's income and expenditure in the financial year; and

(b) comply with any directions given by the Polytechnics and Colleges Funding Council as to the information to be contained in the statement, the manner in which the information is to be presented or the methods and principles according to which the statement is to be prepared.

(3) The accounts (including any statement prepared under this paragraph) shall be audited by persons appointed in respect of each financial year by the corporation.

(4) The corporation shall consult, and take into account any advice given by, the Audit Commission for Local Authorities in England and Wales before appointing any auditor under sub-paragraph (3) above in respect of their first financial year.

(5) No person shall be qualified to be appointed auditor under that sub-paragraph unless he is--

(a) a member of a body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 389(1)(a) of the [1985 c. 6.] Companies Act 1985; or

(b) a member of the Chartered Institute of Public Finance and Accountancy;

but a firm may be so appointed if each of its members is qualified to be so appointed.

(6) In this paragraph, in relation to a corporation--

"the first financial year" means the period commencing with the date on which the corporation is established and ending with the second 31st March following that date; and
"financial year" means that period and each successive period of twelve months.

Efficiency studies

19 (1) The Polytechnics and Colleges Funding Council may arrange for the promotion or carrying out by any person of studies designed to improve economy, efficiency and effectiveness in the management or operations of a corporation.

(2) A person promoting or carrying out such studies at the request of the Council may require the corporation concerned--

(a) to furnish the person, or any person authorised by him, with such information; and

(b) to make available to him, or any person so authorised, for inspection their accounts and such other documents;

as the person may reasonably require for that purpose.

Sections 134 and 197.

SCHEDULE 8 The Funding Councils and the Assets Board

Preliminary

1 References below in this Schedule to the Corporation are references to each of the following bodies--

(a) the Universities Funding Council;

(b) the Polytechnics and Colleges Funding Council; and

Supplementary powers

2 (1) Subject to sub-paragraph (2) below, the Corporation shall have power to do anything which appears to them to be necessary or expedient for the purpose of or in connection with the discharge of their functions, including in particular power--

(a) to acquire and dispose of land and other property;

(b) to enter into contracts;

(d) to accept gifts of money, land or other property.

(2) Sub-paragraph (1) above does not confer power to borrow money, except in the case of the Education Assets Board; but the power of that Board to borrow money shall be subject to the approval of the Secretary of State in the case of each transaction.

Chief officer

3 (1) One of the members of the Corporation shall be the chief officer of the Corporation.

(2) The first chief officer of the Corporation shall be appointed as such by the Secretary of State and shall hold and vacate office in accordance with the terms of his appointment.

(3) Each subsequent chief officer shall be appointed by the Corporation with the approval of the Secretary of State on such terms and conditions (including terms with respect to tenure and vacation of office) as the Corporation may with the approval of the Secretary of State determine.

(4) On approval by the Secretary of State of the person to be appointed on any occasion as chief officer of the Corporation and the terms and conditions of his appointment, the Secretary of State shall--

(a) if that person is not already a member of the Corporation, appoint him as a member for the same term as the term of his appointment as chief officer; or

(b) if he is already such a member but his term of appointment as such ends before the term of his appointment as chief officer, extend his term of appointment as a member so that it ends at the same time as the term of his appointment as chief officer.

Qualifications of members and tenure of office

4 (1) A person shall hold and vacate office as a member or as chairman or chief officer of the Corporation in accordance with the terms of his appointment and shall, on ceasing to be a member, be eligible for re-appointment.

(2) A person may at any time by notice in writing to the Secretary of State resign his office as a member or as chairman of the Corporation.

5 If the Secretary of State is satisfied that a member of the Corporation--

(a) has been absent from meetings of the Corporation for a period longer than six consecutive months without the permission of the Corporation; or

(b) is unable or unfit to discharge the functions of a member;

the Secretary of State may by notice in writing to that member remove him from office; and thereupon the office shall become vacant.

Salaries, allowances and pensions for members

6 (1) The Corporation--

(a) shall pay to the members of the Corporation such salaries or fees, and such travelling, subsistence or other allowances, as the Secretary of State may determine; and

(b) shall pay, or make such payments towards the provision of, such pension to or in respect of any member of the Corporation as the Secretary of State may determine.

(2) If a person ceases to be a member of the Corporation and it appears to the Secretary of State that there are special circumstances which make it right that he should receive compensation, the Secretary of State may direct the Corporation to make to that person a payment of such amount as the Secretary of State may determine.

(3) A determination or direction of the Secretary of State under sub-paragraph (1) or (2) above requires the approval of the Treasury.

House of Commons disqualification

7 In Part III of Schedule 1 to the [1975 c. 24.] House of Commons Disqualification Act 1975 (disqualifying offices), there shall be inserted at the appropriate places the following entries--

" Any member of the Universities Funding Council in receipt of remuneration.
Any member of the Polytechnics and Colleges Funding Council in receipt of remuneration.
Any member of the Education Assets Board in receipt of remuneration. " .

Staff

8 (1) The Corporation may appoint such employees as the Corporation think fit.

(2) The Corporation shall pay to their employees such remuneration and allowances as the Corporation may determine.

(3) The employees shall be appointed on such other terms and conditions as the Corporation may determine.

(4) A determination under sub-paragraph (2) or (3) above requires the approval of the Secretary of State given with the consent of the Treasury.

(5) Employment with the Corporation shall be included among the kinds of employment to which a scheme under section 1 of the [1972 c. 11.] Superannuation Act 1972 can apply, and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed), at the end of the list of "Other Bodies" there shall be inserted--

" Universities Funding Council.
Polytechnics and Colleges Funding Council.
Education Assets Board. "

(6) The Corporation shall pay to the Treasury, at such times as the Treasury may direct, such sums as the Treasury may determine in respect of the increase attributable to sub-paragraph (5) above in the sums payable out of money provided by Parliament under that Act.

(7) Where an employee of the Corporation is, by reference to that employment, a participant in a scheme under section 1 of that Act and is also a member of the Corporation the Treasury may determine that his service as such a member shall be treated for the purposes of the scheme as service as an employee of the Corporation (whether or not any benefits are payable to or in respect of him by virtue of paragraph 6 above).

Committees

9 (1) The Corporation may establish a committee for any purpose.

(2) The number of the members of a committee established under this paragraph, and the terms on which they are to hold and vacate office, shall be fixed by the Corporation.

(3) Such a committee may include persons who are not members of the Corporation.

(4) The Corporation shall keep under review the structure of committees established under this paragraph and the scope of each committee's activities.

Scottish and Welsh Committees of Universities Funding Council

10 The Universities Funding Council shall establish committees under paragraph 9 above for the purpose of advising the Council on the exercise of their functions in relation to universities in Scotland and universities in Wales respectively.

Delegation of Functions

11 The Corporation may authorise the chairman, the chief officer or any committee established under paragraph 9 above to exercise such of their functions as they may determine.

Proceedings

12 Without prejudice to any other rights the Secretary of State may require to be accorded to him as a condition of any grants made to the Corporation under section 134 of this Act--

(a) a representative of the Secretary of State shall be entitled to attend and take part in any deliberations (but not in decisions) at meetings of the Corporation or of any committee of the Corporation; and

(b) the Secretary of State shall be entitled to receive copies of any documents distributed to members of the Corporation or of any such committee.

13 The validity of any proceedings of the Corporation or of any committee of the Corporation shall not be affected by a vacancy among the members or by any defect in the appointment of a member.

14 Subject to the preceding provisions of this Schedule, the Corporation shall have power to regulate their own procedure and that of any of their committees.

Application of seal and proof of instruments

15 The application of the seal of the Corporation shall be authenticated by the signature of the chairman or of some other person authorised either generally or specially by the Corporation to act for that purpose and of one other member.

16 Every document purporting to be an instrument made or issued by or on behalf of the Corporation and to be duly executed under the seal of the Corporation, or to be signed or executed by a person authorised by the Corporation to act in that behalf shall be received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.

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