N.I.

PART IN.I.INTRODUCTORY

Title and commencementN.I.

1.-(1) This Order may be cited as the Education and Libraries (Northern Ireland) Order 1993.

(2) Except as provided by paragraphs (3) and (4), this Order shall come into operation on the expiration of two months from the day on which it is made.

(3) The following provisions of this Order shall come into operation forthwith-

This Part;

Article 28 and Schedule 2;F

Article 42;

Article 48;

Article 50(1) and Part II of Schedule 4 so far as relating to-

Articles 60(1), 126(4) and 127(2) and (3) of the 1989 Order;

Article 50(2) and Schedule 5 so far as relating to-

Article 70(1) and (3) of, and Schedule 19 to, the 1986 Order;

Articles 141(5) and 146(5) and (6) of the 1989 Order and the amendments in Schedule 9 to the 1989 Order to Articles 11 and 116(1) of, and Schedules 5 and 6 to, the 1986 Order.

(4) The following provisions of this Order shall come into operation on such day or days as the Department may by order appointF1

Article 34 and Part I of Schedule 4;

Article 41;

Article 45;

Article 50(2) and Schedule 5 so far as relating to-

Articles 2(2), 65, 69A, 70(4) and 72 of the 1986 Order;

Articles 18, 20, 23 to 28, 59, 143, 151, 153, 163 and 164 of, and Schedules 2 and 3 to, the 1989 Order and the amendment in Schedule 9 to the 1989 Order to the definition of "supply teacher" in Article 2(2) of the 1986 Order.

(5) An order under paragraph (4) may make such transitional provision as appears to the Department to be necessary or expedient in connection with the provisions brought into operation by the order.

InterpretationN.I.

2.-(1) The Interpretation Act (Northern Ireland) 1954F2 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order-

"the 1986 Order" means the Education and Libraries (Northern Ireland) Order 1986F3;

"the 1989 Order" means the Education Reform (Northern Ireland) Order 1989F4.

(3) This Order shall be construed as one with the 1986 Order and the 1989 Order; and accordingly Article 2(2) of the 1986 Order, in so far as it relates to the definition of words or expressions used in that Order and in this Order, shall apply for the purposes of this Order as it applies for the purposes of that Order.

N.I.

Part II (arts. 3-�18) rep. by 2003 NI 12

PART IIIN.I.PUBLIC SUPPLY OR WORKS CONTRACTS

Interpretation of Part IIIN.I.

19. In this Part-

• "the Act of 1989" means the Fair Employment (Northern Ireland) Act 1989F5;

• "approved list" means such a list as is mentioned in Article 20(3)(a);

• "associated body", in relation to a contractor, means any company which (within the meaning of the Companies (Northern Ireland) Order 1986F6), is the contractor's holding company or subsidiary or is a subsidiary of the contractor's holding company;

• "business" includes any trade or profession;

• "business activities" and "business interests", in relation to a contractor or other person, mean respectively any activities comprised in, or any investments employed in or attributable to, the carrying on of his business and "activity" includes receiving the benefit of the performance of any contract;

• "contractor", except in relation to a subsisting contract, means a "potential contractor", that is to say-

  (a)

  in relation to functions as respects an approved list, any person who is or seeks to be included in the list; and

  (b)

  in relation to functions as respects a proposed public supply or works contract, any person who is or seeks to be included in the group of persons from whom tenders are invited or who seeks to submit a tender for or enter into the proposed contract, as the case may be;

• "employers' association" has the meaning assigned to it by Article 4(1) and (2) of the Industrial Relations (Northern Ireland) Order 1992F7;

• "exclusion" includes removal;

• "Government policy" falls within "irrelevant fields" for the purposes of Article 20 if it concerns matters of defence or foreign or Commonwealth policy and "involve", as regards business activities and any such field of policy, includes the supply of goods or materials or services to, or the execution of works for, any authority or person having functions or carrying on business in that field and, as regards business interests and any such field of policy, includes investment in any authority or person whose business activities are so involved;

• "political, industrial or sectarian affiliations or interests" means actual or potential membership of, or actual or potential support for, respectively, any political party, any employers' association or trade union or any society, fraternity or other association;

• "suppliers or customers" and "sub-contractors" includes prospective suppliers or customers and sub-contractors; and "supplier", in relation to a contractor, includes any person who, in the course of business, supplies him with services or facilities of any description for the purposes of his business;

• "trade dispute" has the meaning assigned to it by[F8 Article 127 of the Trade Union and Labour Relations (Northern Ireland) Order 1995] and "involve", as regards business activities and a trade dispute, includes the supply of goods, materials or services to or by, or the execution of works for or by, any party to the dispute, any other person affected by the dispute, or any authority concerned with the enforcement of law and order in relation to the dispute;

• "trade union" has the meaning assigned to it by Article 3(1) of the Industrial Relations (Northern Ireland) Order 1992.

Board contracts: exclusion of non-commercial considerationsN.I.

20.-(1) Every board shall, in exercising, in relation to its public supply or works contracts, any proposed or any subsisting such contract, as the case may be, any function regulated by this Article, exercise that function without reference to matters which are non-commercial matters for the purposes of this Article.

(2) The contracts which are public supply or works contracts of a board for the purposes of this Article are contracts for the supply of goods or materials to the board, for the supply of services to the board or for the execution of works for the board; but this Article does not apply in relation to contracts entered into before the coming into operation of this Article and does not authorise a board to enter into any contract which it would not be authorised to enter into apart from this Article.

(3) The functions regulated by this Article are-

(a)the inclusion of persons in or the exclusion of persons from-

(i)any list of persons approved for the purposes of public supply or works contracts with the board; or

(ii)any list of persons from whom tenders for such contracts may be invited;

(b)in relation to a proposed public supply or works contract with the board-

(i)the inclusion of persons in or the exclusion of persons from the group of persons from whom tenders are invited;

(ii)the accepting or not accepting the submission of tenders for the contract;

(iii)the selecting of the person with whom to enter into the contract; or

(iv)the giving or withholding approval for, or the selecting or nominating, persons to be sub-contractors for the purposes of the contract; and

(c)in relation to a subsisting public supply or works contract with the board-

(i)the giving or withholding approval for, or the selecting or nominating, persons to be sub-contractors for the purposes of the contract; or

(ii)the termination of the contract.

(4) The following matters are non-commercial matters as regards the public supply or works contracts of a board, any proposed or any subsisting such contract, as the case may be, that is to say-

(a)the terms and conditions of employment by contractors of their workers or the composition of, the arrangements for the promotion, transfer or training of or the other opportunities afforded to, their workforces;

(b)whether the terms on which contractors contract with their sub-contractors constitute, in the case of contracts with individuals, contracts for the provision by them as self-employed persons of their services only;

(c)any involvement of the business activities or interests of contractors with irrelevant fields of Government policy;

(d)the conduct of contractors or workers in trade disputes between them or any involvement of the business activities of contractors in trade disputes between other persons;

(e)the country or territory of origin of supplies to, or the location in any country or territory of the business activities or interests of, contractors;

(f)any political, industrial or sectarian affiliations or interests of contractors or their directors, partners or employees;

(g)financial support or lack of financial support by contractors for any institution to or from which the board gives or withholds support.

(5) The matters specified in paragraph (4) include matters which have occurred in the past as well as matters which subsist when the function in question falls to be exercised.

(6) Where any matter referable to a contractor would, as a matter specified in paragraph (4), be a non-commercial matter in relation to him, the corresponding matter referable to-

(a)a supplier or customer of the contractor;

(b)a sub-contractor of the contractor or his supplier or customer;

(c)an associated body of the contractor or his supplier or customer; or

(d)a sub-contractor of an associated body of the contractor or his supplier or customer;

is also, in relation to the contractor, a non-commercial matter for the purposes of this Article.

(7) This Article is subject to Article 21.

Exceptions for fair employment matters and matters specified by DepartmentN.I.

21.-(1) A board which takes any action reasonably necessary to secure compliance with[F9 Article 64 of the Fair Employment and Treatment (Northern Ireland) Order 1998] (restriction on execution of works, etc., by unqualified persons) does not exercise any function regulated by Article 20 by reference to a non-commercial matter.

(2) Subject to paragraph (3), nothing in Article 20 shall preclude a board from-

(a)asking questions seeking information or undertakings of any person relating to whether any person is or is not an unqualified person for the purposes of[F9 Article 64 of the Fair Employment and Treatment (Northern Ireland) Order 1998] and considering the responses to them; or

(b)including in a draft contract or draft tender for a contract terms or provisions requiring that the persons who are to carry out work or supply goods or services for the purposes of the contract are not to be unqualified persons for the purposes of[F9 that Article] and considering the responses to them,

if, as the case may be, consideration of the information, the giving of the undertaking or the inclusion of the terms or provisions is reasonably necessary to secure compliance with[F9 that Article].

(3) Paragraph (2) does not apply to the function of terminating a subsisting contract and, in relation to functions as respects approved lists or proposed contracts, does not authorise questions in other than written form.

(4) Where it is permissible under paragraph (2) to ask a question it is also permissible to make, if it is in writing, a request for evidence in support of an answer to the question.

(5) Nothing in Article 20 shall preclude a board from-

(a)applying the criteria specified in an order under Article 22(1)(b) in including persons in or excluding persons from an approved list; or

(b)asking questions specified in an order under Article 22(1)(c) in questionnaires circulated by the board to potential contractors in cases so specified and considering the responses to them.

Provisions supplementary to or consequential on Article 20N.I.

22.-(1) The Department may by order-

(a)specify as a non-commercial matter for the purposes of Article 20 any other matter which appears to the Department to be irrelevant to the commercial purposes of public supply or works contracts of any description;

(b)specify the criteria to be applied by a board in including persons in or excluding persons from an approved list;

(c)specify questions relating to non-commercial matters which may be included in questionnaires circulated by boards to potential contractors in such cases as may be specified in the order.

(2) The power conferred by paragraph (1)(a) includes power to apply Article 20(5) and (6) to any matter specified in the order and to amend any definition in Article 19 of an expression used in any sub-paragraph of Article 20(4) without making any other provision.

(3) An order under paragraph (1) may include such consequential and transitional provisions as appear to the Department to be necessary or expedient.

(4) No order under paragraph (1) shall be made unless a draft of it has been laid before and approved by a resolution of the Assembly.

(5) The duty imposed by Article 20(1) does not create a criminal offence but-

(a)in proceedings for judicial review, the persons who have a sufficient interest in the matter shall include any potential contractor or, in the case of a contract which has been made, former potential contractor (or, in any case, any body representing contractors), as such; and

(b)a failure to comply with it is actionable by any person who, in consequence, suffers loss or damage.

(6) In any action under Article 20(1) by a person who has submitted a tender for a proposed public supply or works contract arising out of the exercise of functions in relation to the proposed contract the damages shall be limited to damages in respect of expenditure reasonably incurred by him for the purpose of submitting the tender.

(7) Nothing in paragraph (1)(a) or Article 20 implies that the exercise of any function regulated by that Article may not be impugned, in proceedings for judicial review, on the ground that it was exercised by reference to other matters than those which are non-commercial matters for the purposes of that Article.

(8) If a board, in relation to public supply or works contracts or any proposed such contract, as the case may be-

(a)asks any question of any potential contractor relating to any non-commercial matter other than a question consideration of the answer to which is permitted by Article 21; or

(b)submits to any potential contractor a draft contract or draft tender for a contract which includes terms or provisions relating to any non-commercial matter other than a term or provision the inclusion of which in the contract is permitted by Article 21,

the board shall be treated, for the purposes of Article 20, as exercising functions regulated by that Article by reference to non-commercial matters.

Duty of boards to give reasons for certain decisions within Article 20N.I.

23.-(1) Where a board exercises a function regulated by Article 20 by making, in relation to any person, a decision to which this Article applies, the board shall forthwith notify that person of the decision and, if that person so requests in writing within 15 days from the date of the notice, furnish him with a written statement of the reasons for the decision within 15 days from the date of the request.

(2) This Article applies to the following decisions in relation to any person, namely-

(a)in relation to an approved list, a decision to exclude him from the list;

(b)in relation to a proposed public supply or works contract-

(i)where he has asked to be invited to tender for the contract, a decision not to invite him to tender;

(ii)a decision not to accept the submission by him of a tender for the contract;

(iii)where he has submitted a tender for the contract, a decision not to enter into the contract with him; or

(iv)a decision to withhold approval for, or to select or nominate, persons to be sub-contractors for the purposes of the contract; or

(c)in relation to a subsisting public supply or works contract with him-

(i)a decision to withhold approval for, or to select or nominate, persons to be sub-contractors for the purposes of the contract; or

(ii)a decision to terminate the contract.

(3) The Department may by order subject to negative resolution amend paragraph (1) so as to substitute for any period specified in that paragraph such other period as the Department thinks fit.

Transitional duty of boards as regards existing listsN.I.

24.-(1) Subject to paragraph (3), a board which, at the coming into operation of this Article, maintains an approved list shall-

(a)consider whether persons have been included in or excluded from the list by reference to non-commercial matters; and

(b)if it appears to the board that that is the case, compile the list afresh in accordance with paragraphs (4) to (6).

(2) Persons shall be treated by a board as having been excluded from a list by reference to non-commercial matters if, in relation to the list, the board has-

(a)notified potential contractors of its intention to have regard to non-�commercial matters; or

(b)issued statements of policy framed by reference to non-commercial matters.

(3) Inclusion or exclusion by a board from any approved list by reference to a non-commercial matter does not give rise to the duty to compile the list afresh under paragraph (1) if that matter relates only to the question as to whether or not any person is unqualified for the purpose of section 41 of the Act of 1989 and the board's action was reasonably necessary to secure compliance with that section.

(4) The duty of a board to compile afresh an approved list shall be discharged as follows-

(a)the board shall publish notice of its intention to compile the list afresh and (by the notice) invite persons to apply, within a specified period, to be included in the list; and

(b)at the end of that period the board shall proceed to compile the list afresh from among the applicants in accordance with the duty imposed by Article 20.

(5) Publication by a board of the notice required by paragraph (4) shall be effected by causing the notice to be published-

(a)in at least 2 newspapers circulating in the area of the board; and

(b)in at least one publication circulating among such persons as undertake contracts of the description to which the list relates.

(6) The period specified in the notice under paragraph (4) as the period within which applications are to be made shall not be shorter than the period of 28 days from the date of publication of the notice.

(7) The duty imposed by this Article shall be discharged by a board as soon as is reasonably practicable after this Article comes into operation and in any event before the expiration of 3 months from the day on which this Article comes into operation.

(8) This Article does not create a criminal offence but sub-paragraph (a) of Article 22(5) applies for the purposes of the duty imposed by this Article as it applies for the purposes of the duty imposed by Article 20(1).

Exclusion of charges for inclusion in approved listN.I.

25.-(1) A board which maintains an approved list shall not require a person to pay any sum as a condition of his inclusion or continued inclusion in the list or of his being considered for such inclusion.

(2) Paragraph (1) does not create a criminal offence but a contravention of it is actionable by the person seeking to be included or retained in the list.

PART IVN.I.MISCELLANEOUS

N.I.

Arts. 26, 27 rep. by 1997 NI 15

FinanceN.I.

Capital grants to, and management of, maintained schools and voluntary grammar schoolsN.I.

28.-F10(1) For Article 116 of the 1986 Order there shall be substituted the following Article-

(2) For Article 11 of the 1986 Order (management of voluntary schools) there shall be substituted the Article set out in Part I of Schedule 2.

(3) For Schedule 5 to the 1986 Order (management of maintained schools) there shall be substituted the Schedule set out in Part II of Schedule 2.

(4) For Schedule 6 to the 1986 Order (management of certain voluntary grammar schools) there shall be substituted the Schedule set out in Part III of Schedule 2.

Where an agreement under paragraph 1 of Schedule 5 to the 1986 Order or paragraph 1(1)(a) of Schedule 6 to that Order comes into force in relation to a school at any time before the expiration of 3 months from the day on which this Article comes into operation, paragraph (1) of Article 116 of that Order shall have effect, in relation to any expenditure of a description mentioned in that paragraph which is approved in connection with the school in the period beginning on 4th November 1992 and ending on the coming into force of that agreement, as if that agreement had been in force when the expenditure was approved.

Paragraph (5) does not apply to expenditure incurred under, or in connection with, a contract for the provision or alteration of the premises of a school or the provision of equipment for a school if any part of the expenditure under, or in connection with, that contract was approved before 4th November 1992.

(7) Any agreement in force immediately before the coming into operation of this Article in relation to a school under Schedule 6 to the 1986 Order shall-

(a)if made, or having effect as if made, under paragraph 1(1) of that Schedule, continue to have effect as if made under paragraph 1(1)(b) of that Schedule, as substituted by this Article;

(b)if made, or having effect as if made, under paragraph 1(2) of that Schedule, continue to have effect as if made under paragraph 2(1) of that Schedule, as substituted by this Article.

Art. 29 rep. by 2003 NI 12

Funding by Department of higher educationN.I.

30 .F11-(1) The Department may, on such terms and conditions as it may determine, make grants-

(a)to the governing body of any higher education institution in Northern Ireland in respect of expenditure incurred or to be incurred by it for the purposes of-

(i)the provision of education and the undertaking of research by that institution; or

(ii)the provision of any facilities, and the carrying on of any other activities, by that institution which the governing body of that institution considers it necessary or desirable to provide or carry on for the purposes of, or in connection with, education or research;

(b)to the governing body of any other prescribed institution in respect of expenditure incurred or to be incurred by it for the purposes of the provision of prescribed higher education courses;

(c)to any body or person in respect of expenditure incurred or to be incurred by that body or person for the purposes of the provision of services for the purposes of, or in connection with, the provision of education and the undertaking of research by higher education institutions in Northern Ireland.

(2) For the purposes of the exercise of its functions under this Article, the Department may obtain such advice and other services as it considers necessary or desirable from any other body or person on such terms and conditions as may be agreed between the Department and that other body or person.

(3) In this Article-

"governing body", in relation to an institution means-

(a)in the case of a university, the executive governing body which has responsibility for the management and administration of its revenue and property and the conduct of its affairs;

Sub-�para. (b) rep. by 1997 NI 15

(c)in the case of any other institution, the body which has responsibility for the conduct of its affairs;

"higher education course" means a course of a description for the time being mentioned in[F12 Schedule 1 to the Further Education (Northern Ireland) Order 1997];

"higher education institution" means-

(a)a university; and

[F13(aa)a college of education;]

(b)any other institution which provides higher education courses and is designated by regulations as a higher education institution for the purposes of this Article;

and references to a higher education institution in Northern Ireland include references to the Open University;

"university" includes a university college and any college, or institution in the nature of a college, in a university.

(4) Regulations under this Article shall be subject to negative resolution.

Premature retirement compensation costsN.I.

31.-F14(1) After Article 53 of the 1989 Order there shall be inserted the following Article-

In Article 60 of the 1989 Order at the beginning of paragraph (3) there shall be inserted the words "Subject to paragraph (7A)," and after paragraph (7) there shall be inserted the following paragraphs-

"(7A) An amount may, in pursuance of, and in accordance with the terms of, a direction under paragraph (7B), be deducted from the amount of any grant to be paid under this Article to the Board of Governors of any school.

(7B) Where there appears to the Department to be good reason to do so in relation to any school, the Department may direct that-

(a)a specified amount shall be deducted from the amount of any grant to be paid under this Article to the Board of Governors of the school in any single specified financial year; or

(b)a specified amount shall be deducted from the amount of any such grant to be so paid in each financial year for such period (not exceeding 10 years) as may be specified,

in respect of premature retirement compensation costs of the Department in relation to a member of the staff of the school.

(7C) In paragraph (7B) "specified" means specified in directions under that paragraph.

(7D) The amount or (in a case falling within sub-paragraph (b) of that paragraph) the total amount to be deducted in pursuance of a direction given under paragraph (7B) in relation to a member of the staff of a school shall not exceed such amount as appears to the Department to represent the cost, capitalised as of the date on which the direction is given, of discharging the Department's liability to pay premature retirement compensation to, or in respect of, that member of staff.

(7E) In this Article-

"member of staff" includes former member of staff;

"premature retirement compensation" means compensation under Parts III and IV of the Teachers' (Compensation for Redundancy and Premature Retirement) Regulations (Northern Ireland) 1991F16;

"premature retirement compensation costs of the Department", in relation to any person, means the costs incurred or to be incurred by the Department in paying premature retirement compensation to, or in respect of, that person." .

In Article 77 of the 1989 Order at the beginning of paragraph (2) there shall be inserted the words "Subject to paragraph (7)," and for paragraph (7) there shall be substituted the following paragraphs-

"(7) An amount may, in pursuance of, and in accordance with the terms of, a direction under paragraph (7A), be deducted from the amount of any maintenance grant to be paid under this Article to the Board of Governors of any school.

(7A) Where there appears to the Department to be good reason to do so in relation to any school, the Department may direct that-

(a)a specified amount shall be deducted from the amount of any maintenance grant to be paid under this Article to the Board of Governors of the school in any single specified financial year; or

(b)a specified amount shall be deducted from the amount of any maintenance grant to be so paid in each financial year for such period (not exceeding 10 years) as may be specified,

in respect of premature retirement compensation costs of the Department in relation to a member of the staff of the school.

(7B) In paragraph (7A) "specified" means specified in directions under that paragraph.

(7C) The amount or (in a case falling within sub-paragraph (b) of that paragraph) the total amount to be deducted in pursuance of a direction given under paragraph (7A) in relation to a member of the staff of a school shall not exceed such amount as appears to the Department to represent the cost, capitalised as of the date on which the direction is given, of discharging the Department's liability to pay premature retirement compensation to, or in respect of, that member of staff.

(7D) In this Article-

"member of staff" includes former member of staff;

"premature retirement compensation" means compensation under Parts III and IV of the Teachers' (Compensation for Redundancy and Premature Retirement) Regulations (Northern Ireland) 1991F17;

"premature retirement compensation costs of the Department", in relation to any person, means the costs incurred or to be incurred by the Department in paying premature retirement compensation to, or in respect of, that person." .

Para. (4) rep. by 1997 NI 15

(5) After Article 119 of the 1986 Order there shall be inserted the following Article-

Commercial activitiesN.I.

Power of certain bodies to undertake commercial activitiesN.I.

32 .F19-(1) Subject to the following provisions of this Article, a relevant body shall have power, with the approval of the Department, to undertake commercial activities which, apart from this Article, it would not have power to undertake.

(2) An approval granted to a relevant body under this Article-

(a)shall specify the particular commercial activities which the body has power to undertake under this Article in pursuance of the approval;

(b)shall be subject to the general conditions for the time being specified in directions under paragraph (3); and

(c)shall be subject to such other conditions as may be specified by the Department in the approval.

(3) The Department shall issue directions specifying the general conditions regulating the undertaking by a relevant body of commercial activities in pursuance of an approval under this Article.

(4) The Department shall consult all relevant bodies before issuing any directions under paragraph (3).

(5) Subject to any conditions applying under this Article, a relevant body shall have power-

(a)to do anything whatsoever which appears to the body to be calculated to facilitate, or to be conducive or incidental to, the exercise of any power conferred under this Article; and

(b)to make such charge as the body considers appropriate for anything that it does in the exercise of any such power and to calculate any such charge on any basis that it considers to be the appropriate commercial basis.

(6) Nothing in this Article authorises a relevant body-

(a)to undertake any commercial activities which are detrimental to-

(i)the performance by that body of any duty imposed on it by the Education Orders; or

(ii)the interests of pupils or persons seeking to be provided with education under the Education Orders; or

(b)to disregard any statutory provision or rule of law or to override any person's contractual or property rights.

(7) Where it appears to the Department that a relevant body-

(a)has failed to comply with any conditions subject to which an approval under this Article has been granted; or

(b)has in undertaking any commercial activity in pursuance of such an approval contravened paragraph (6),

the Department may, by notice served on that body,-

(i)revoke the approval; or

(ii)modify the approval, whether by modifying the particular commercial activities or any conditions specified therein.

(8) The revocation or modification of an approval under this Article shall not affect the power of a relevant body to meet any contractual commitments outstanding at the date on which the notice under paragraph (7) is served on the body.

(9) Any approval, directions or notice under this Article shall be in writing.

(10) In this Article-

"commercial activity" includes-

(a)the carrying out of work for any other body or person;

(b)the supplying of goods and services to any other body or person; and

(c)the developing and exploiting of ideas and the exploiting of intellectual property;

"relevant body" means-

(a)a board; or

(b)the Northern Ireland Council for the Curriculum, Examinations and Assessment.

Para. (11) rep. by 1998 NI 13

Art. 33 rep. by 1997 NI 15

N.I.

Art. 34 rep. by 1998 NI 13

Schools established in hospitalsN.I.

Schools established in hospitalsN.I.

35.-(1) The 1989 Order shall have effect subject to the amendments in paragraphs (2) to (8) which exempt schools established in hospitals from certain provisions of that Order.

(2) F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In Articles 68(2) and 90(2) (schools not eligible for grant-maintained integrated status and controlled integrated status, respectively) at the end there shall be added the following sub-paragraph-

"(d)a school established in a hospital." .

(6) The following paragraph, namely-

"(0)This Article does not apply to a school established in a hospital." shall be added-

(b)in Article 125 (annual report of Board of Governors), as paragraph (7);

(c)F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) In Article 127 (application of provisions regulating charges in schools) in paragraph (1) after the words "paragraphs (2) to (5)" there shall be inserted the words "and Article 137(7)" and at the end of Article 137 there shall be added the following paragraph-

"(7) Nothing in this Chapter shall apply in relation to a school established in a hospital; but no charge shall be made in respect of admission to, or education or equipment provided to a pupil at, any such school." .

(8) In Article 139(8) (schools ineligible to become community schools) for the words from "a voluntary school" to the end there shall be substituted the words "a school established in a hospital.".

(9) In Article 13 of the 1986 Order (Boards of Governors)-

(a)after paragraph (3A) there shall be inserted the following paragraph-

"(3AA) Where in the opinion of the board responsible for the management of a school established in a hospital it is likely to be impracticable for there to be elections of parent members at the school, the required number of parent members may be made up by persons appointed by the voting members of the Board of Governors of the school." ;

(b)in paragraphs (3B), (3C) and (3D) after the words "paragraph (3A)" there shall be inserted the words "or (3AA)";

(c)in paragraph (3E) after the words "paragraph (3A)" there shall be inserted ", (3AA)".

(10) After Article 131 of the 1986 Order there shall be inserted the following Article-

Miscellaneous amendments to the 1986 OrderN.I.

Art. 36 rep. by 1998 NI 13

Limitation on membership of Boards of GovernorsN.I.

37. For Article 12 of the 1986 Order there shall be substituted the following Article-

Standard of school premisesN.I.

38. For Article 18 of the 1986 Order there shall be substituted the following Article-

Appeals against expulsion of pupilsN.I.

39. For Article 49 of the 1986 Order there shall be substituted the following Article-

Arts. 40, 41 rep. by 1998 NI 13

Salaries and other terms and conditions of employment of teachersN.I.

42.-(1) In the 1986 Order for Article 69 there shall be substituted the following Article-

(2) In Article 70 of the 1986 Order the following provisions (which relate to terms and conditions of employment of teachers and are superseded by paragraph (1)) shall cease to have effect, namely-

(a)paragraph (1)(b);

(b)paragraph (3).

(3) Subject to paragraph (4), any regulations which-

(a)were made under Article 69 or 70(1)(b) of the 1986 Order; and

(b)were in operation immediately before the coming into operation of this Article,

shall, in so far as they relate to teachers to whom Article 69 of the 1986 Order (as substituted by paragraph (1)) applies, have effect as from the coming into operation of this Article as if they were determinations made by the Department under Article 69(1) of the 1986 Order (as so substituted).

(4) Any provisions included in any regulations mentioned in paragraph (3) by virtue of Article 69(3) of the 1986 Order shall, in so far as they relate to teachers so mentioned, have effect as from the coming into operation of this Article as if they were directions given by the Department under Article 69(3) of the 1986 Order (as substituted by paragraph (1)).

(5) Until the day appointed for the coming into operation of Article 41, Article 69 of the 1986 Order (as substituted by paragraph (1)) shall apply to supply teachers as it applies to the teachers listed in paragraph (2) of that Article; and for the purposes of paragraph (4) of that Article as so applying the "employing authority" in relation to supply teachers means the body by which they are employed.

Charges for library servicesN.I.

43.-(1) For Article 77 of the 1986 Order there shall be substituted the following Article-

(2) In Part VII of the 1986 Order after Article 78 there shall be inserted the following Article-

Insurance by boardsN.I.

44. Article 86 of the 1986 Order (insurance by boards) shall be renumbered as paragraph (1) of that Article and after that paragraph there shall be added the following paragraphs-

"(2) A board may insure, or meet the cost of insuring, against such risks in connection with any of the functions to which this paragraph applies as the board considers necessary.

(3) Paragraph (2) applies to the functions of-

(a)the Board of Governors of a grant-aided school, other than a voluntary grammar school or a grant-maintained integrated school; and

(b)the governing body of an institution of further education,

and so applies whether or not those functions are carried out on behalf of, and in the name of, the board." .

Miscellaneous amendments to the 1989 OrderN.I.

Art. 45 rep. by 1996 NI 1

Art. 46 rep. by 1998 NI 13

Complaints relating to religious education and collective worshipN.I.

47. F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Capital charges in voluntary grammar schoolsN.I.

48. For Article 132 of the 1989 Order there shall be substituted the following Articles-

Appointment of foundation governors of grant-maintained integrated schoolsN.I.

49. In Schedule 5 to the 1989 Order in paragraph 2(2) in the definition of "foundation governors" for paragraph (b) there shall be substituted the following paragraph-

"(b)on any subsequent appointment to the Board of Governors-

(i)where the instrument of government of the school makes provision for the appointment of foundation governors for the purposes of this Schedule, in accordance with that instrument; and

(ii)in any other case, by the persons holding office as foundation governors," .

N.I.

Article 50-Amendments and Repeals

SCHEDULES

N.I.

Schedule 1 rep. by 2003 NI 12

Article 28(2) to (4).

SCHEDULE 2N.I.MANAGEMENT OF MAINTAINED SCHOOLS AND VOLUNTARY GRAMMAR SCHOOLS

PART IN.I.ARTICLE 11 OF THE 1986 ORDER, AS SUBSTITUTED

Management of voluntary schoolsN.I.

11.-(1) Subject to paragraph (3), each voluntary school shall be under the control and management of a Board of Governors.

(2) Subject to paragraph (3), each maintained school shall be under the control and management of a Board of Governors constituted in accordance with the provisions of Part I of Schedule 5 and may be withdrawn from the control and management of that Board of Governors in accordance with the provisions of Part II of that Schedule.

(3) Two or more maintained primary schools, other than nursery schools, may be grouped under one Board of Governors where the trustees or Board of Governors of each school so requests and-

(a)in the case of Catholic maintained schools, the Council for Catholic Maintained Schools, with the approval of the Department, so determines; and

(b)in the case of other maintained schools, the board, with the approval of the Department, so determines.

(4) Each voluntary grammar school in relation to which an agreement under paragraph 1 of Schedule 6 is in force shall be under the control and management of a Board of Governors constituted in accordance with the provisions of Schedule 6.

(5) Each voluntary grammar school in relation to which no agreement under paragraph 1 of Schedule 6 is in force shall be under the control and management of a Board of Governors constituted in accordance with the provisions of Schedule 7.

(6) Each voluntary school which has, under Part II of Schedule 5, ceased to be a maintained school shall be under the control and management of a Board of Governors constituted in accordance with the provisions of Schedule 8.

PART IIN.I.SCHEDULE 5 TO THE 1986 ORDER, AS SUBSTITUTED

Article 11(2).

"SCHEDULE 5N.I.MAINTAINED SCHOOLS

PART IN.I.MEMBERSHIP OF BOARD OF GOVERNORS OF MAINTAINED SCHOOL

1.-(1) The trustees of a maintained school shall, notwithstanding anything in any instrument of government of the school, have power to enter into an agreement with the Department that paragraph 2 shall apply in relation to the membership of the Board of Governors of the school; and-

(a)where an agreement under this paragraph is in force in relation to a school, paragraph 2 shall apply in relation to the membership of the Board of Governors of the school; and

(b)in any other case, paragraph 3 shall apply in relation to the membership of the Board of Governors of the school.

(2) An agreement under this paragraph shall provide that the Head of the Department, before making an appointment to the Board of Governors of the school under paragraph 2 shall consult-

(a)in the case of a Catholic maintained school, the Council for Catholic Maintained Schools; and

(b)in any other case, the Board of Governors of the school.

2.-(1) Where this paragraph applies in relation to the membership of the Board of Governors of a maintained school, the Board of Governors shall, notwithstanding anything in any instrument of government of the school, consist of-

(a)9, 18 or 27 persons (in this paragraph referred to as voting members);

(b)the principal of the school who, subject to sub-paragraph (3), shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question; and

(c)persons co-opted under Articles 122 and 139 of the 1989 Order who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question.

(2) Of the voting members of the Board of Governors-

(a)four-ninths shall be nominated by the nominating trustees in such manner as the scheme of management of the school may provide, and at least one of the persons so nominated shall, at the time of his nomination, be a parent of a pupil attending the school;

(b)two-ninths shall be nominated by the board;

(c)one-ninth shall be nominated by the Head of the Department;

(d)one-ninth shall be elected by parents of pupils attending the school from amongst the parents of such pupils;

(e)one-ninth shall be elected by assistant teachers at the school from amongst such assistant teachers.

(3) Where two or more schools are grouped under one Board of Governors, the principal of a school shall not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating exclusively to one or more of the other schools is being discussed.

(4) The Board of Governors shall, with the approval of the Department, make arrangements for the election of persons under sub-paragraph (2)(d) and (e) and such arrangements shall ensure that any vote taken for the purpose of any such election shall be by secret ballot.

3.-(1) Where this paragraph applies in relation to the membership of the Board of Governors of a maintained school, the Board of Governors shall, notwithstanding anything in any instrument of government of the school, consist of-

(a)10, 18 or 27 persons (in this paragraph referred to as voting members);

(b)the principal of the school who, subject to sub-paragraph (4), shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question; and

(c)persons co-opted under Articles 122 and 139 of the 1989 Order who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question.

(2) Where there are 10 voting members of the Board of Governors of a maintained school, then of those members-

(a)six shall be nominated by the nominating trustees in such manner as the scheme of management of the school may provide, and at least one of the persons so nominated shall, at the time of his nomination, be a parent of a pupil attending the school;

(b)two shall be nominated by the board;

(c)one shall be elected by parents of pupils attending the school from amongst the parents of such pupils;

(d)one shall be elected by assistant teachers at the school from amongst such assistant teachers.

(3) Where there are 18 or 27 voting members of the Board of Governors of a maintained school, sub-paragraph (2) shall apply as if for the numbers mentioned in heads (a), (b), (c) and (d) of that sub-paragraph there were substituted the fractions five-ninths, two-ninths, one-ninth and one-ninth respectively.

(4) Where two or more schools are grouped under one Board of Governors, the principal of a school shall not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating exclusively to one or more of the other schools is being discussed.

(5) The Board of Governors shall, with the approval of the Department, make arrangements for the election of persons under sub-paragraph (2)(c) and (d) and such arrangements shall ensure that any vote taken for the purpose of any such election shall be by secret ballot.

4.-(1) The coming into force, or termination, of any agreement under paragraph 1 and any consequential change in the membership of the Board of Governors of a school shall not-

(a)constitute a change for the purposes of Article 14(2)(d) or (e); or

(b)break, or otherwise affect, the continuity of employment of persons employed by the Board of Governors.

(2) Where an agreement under paragraph 1 in relation to a school is terminated, the voting members of the Board of Governors of the school nominated under paragraph 2(2)(a) and (c) shall cease to hold office and such nominations to the Board of Governors shall be made by the nominating trustees as are necessary to ensure that the membership of the Board of Governors complies with paragraph 3.

(3) Where an agreement under paragraph 1 comes into force in relation to a school, the voting members of the Board of Governors of the school nominated under paragraph 3(2)(a) shall cease to hold office and such nominations to the Board of Governors shall be made by the nominating trustees and the Head of the Department as are necessary to ensure that the membership of the Board of Governors complies with paragraph 2.

(4) Persons nominated to the Board of Governors under sub-paragraph (2) or (3) shall hold office for the remainder of the original term of office of those ceasing to hold office under that provision.

(5) The coming into force, or termination, of an agreement under paragraph 1 does not affect the membership of the Board of Governors of any persons other than those mentioned in sub-paragraph (2) or (3).

PART IIN.I.WITHDRAWAL OF MAINTAINED SCHOOL FROM MAINTAINED SCHOOL STATUS

5.-(1) The nominating trustees of a maintained school to which this paragraph applies may at any time give notice to the board requesting that the school should cease to be a maintained school but should continue to be a voluntary school and, where they do so, the school shall, subject to paragraph 6, continue to be a voluntary school but shall cease to be a maintained school-

(a)on the date specified in the notice but only if on or before that date the nominating trustees have complied with the requirements mentioned in paragraph 6; or

(b) if those trustees have not complied with those requirements on or before that date, on the date on which they so comply.

(2) The date specified in a notice under sub-paragraph (1) shall not, unless the nominating trustees and the board otherwise agree, be less than two years from the date on which the notice is given.

(3) This paragraph applies only to a school-

(a)which was recognised as a grant-aided school before 19th October 1967; or

(b)which the Department is satisfied replaces a school or schools (not being a school which was, or schools one or more than one of which was, a maintained school) so recognised before that date; or

(c)the proposal to establish which was submitted to the Ministry of Education for Northern Ireland before that date for approval.

6. The requirements mentioned in paragraph 5 are-

(a)that the nominating trustees have repaid to the Department so much of any grant under Article 116 as, in accordance with regulations under paragraph (1) of that Article, is repayable where a school ceases to be a maintained school; and

(b)that the nominating trustees have paid to the board such amount as may be agreed between those trustees and the board or, in default of agreement, as may be determined by the Department as representing thirty-five per cent. of the value, at the date on which the school ceases to be a maintained school, of-

(i)any works of external maintenance of the school carried out by the board or, before 1st October 1973, by a former local education authority; and

(ii)any equipment provided by the board or, before 1st October 1973, by a former local education authority.

PART IIIN.I.INTERPRETATION

7.-(1) In this Schedule-

"assistant teacher" has the meaning assigned to it by paragraph 7 of Schedule 4;

"board", in relation to a school, means the board for the area in which the school is situated or such other board as the Department may determine;

"nominating trustees", in relation to a school, means such persons as the scheme of management may provide.

(2) Where two or more schools are grouped under one Board of Governors this Schedule shall apply to those schools with such modifications as may be necessary and in particular-

(a)references to the Board of Governors of a school shall be construed as references to the Board of Governors of the group of schools;

(b)references to a pupil attending, or an assistant teacher at, a school shall be construed as references to a pupil attending, or an assistant teacher at, one of the schools in the group;

(c)references to the principal or the instrument of government of a school shall be construed as references to the principal or the instrument of government of each of the schools in the group;

(d)references to the trustees of a school shall be construed as references to the trustees of each of the schools in the group, acting jointly;

(e)any other references to a school shall be construed as references to the group of schools.

PART IIIN.I.SCHEDULE 6 TO THE 1986 ORDER, AS SUBSTITUTED

Article 11(4).

SCHEDULE 6N.I.MEMBERSHIP OF BOARD OF GOVERNORS OF VOLUNTARY GRAMMAR SCHOOL ENTERING INTO AGREEMENT WITH DEPARTMENT

1.-(1) The trustees of a voluntary grammar school shall, notwithstanding anything in any instrument of government of the school, have power to enter into-

(a)an agreement with the Department that paragraph 4 shall apply in relation to the membership of the Board of Governors of the school; or

(b)an agreement with the Department that paragraph 5 shall apply in relation to the membership of the Board of Governors of the school.

(2) An agreement under sub-paragraph (1)(a) or (b) shall provide that the Head of the Department, before making an appointment to the Board of Governors of the school under paragraph 4 or 5 (as the case may be), shall consult the Board of Governors of the school and the board for the area in which the school is situated and may consult any other board which he considers appropriate.

(3) An agreement under sub-paragraph (1) shall have effect to terminate any prior agreement in force under that sub-paragraph.

2.-(1) The trustees of a voluntary grammar school in relation to which an agreement is in force under paragraph 1(1) shall, notwithstanding anything in any instrument of government of the school, have power to enter into an agreement, approved by the Department, with one or more than one board conferring on the board or boards concerned the right to appoint members to the Board of Governors of the school-

(a)in accordance with paragraph 4(2)(b)(i), where an agreement under paragraph 1(1)(a) is in force in relation to the school;

(b)in accordance with paragraph 5(2)(b)(i), where an agreement under paragraph 1(1)(b) is in force in relation to the school.

(2) The termination (otherwise than under paragraph 1(3)) of an agreement under paragraph 1(1) in relation to a school shall have effect to terminate any agreement under this paragraph then in force in relation to the school.

3.-(1) Where an agreement under paragraph 1(1)(a) is in force in relation to a school, paragraph 4 shall apply in relation to the membership of the Board of Governors of the school.

(2) Where an agreement under paragraph 1(1)(b) is in force in relation to a school, paragraph 5 shall apply in relation to the membership of the Board of Governors of the school.

4.-(1) Where this paragraph applies in relation to the membership of the Board of Governors of a voluntary grammar school, the Board of Governors shall, notwithstanding anything in any instrument of government of the school, consist of-

(a)9, 18, 27 or 36 persons (in this paragraph referred to as voting members);

(b)the principal of the school who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question; and

(c)persons co-opted under Articles 122 and 139 of the 1989 Order who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question.

(2) Of the voting members of the Board of Governors-

(a)four-ninths shall be appointed as provided by the scheme of management and at least one of the persons so appointed shall, at the time of his appointment, be a parent of a pupil attending the school;

(b)one-third shall be appointed-

(i)where an agreement under paragraph 2 is in force in relation to the school, by the Head of the Department and the board or boards concerned in accordance with an agreement made between the Head of the Department and the board or boards concerned;

(ii)in any other case, by the Head of the Department;

(c)one-ninth shall be elected by parents of pupils attending the school from amongst parents of such pupils;

(d)one-ninth shall be elected by assistant teachers at the school from amongst such assistant teachers.

(3) Subject to sub-paragraph (4), persons elected to the Board of Governors under sub-paragraph (2)(c) and (d) shall hold office for a period of four years from the date on which they were elected.

(4) If a person referred to in sub-paragraph (3) ceases to hold office before the end of the period referred to in that sub-paragraph, any person elected to replace him shall hold office only for the remainder of that period.

(5) The Board of Governors shall, with the approval of the Department, make arrangements for the election of persons under sub-paragraph (2)(c) and (d) and such arrangements shall ensure that any vote taken for the purpose of any such election shall be by secret ballot.

(6) Where under any instrument of government of a school assets of a capital nature held for the purposes of or in connection with the school are vested in the Board of Governors of the school, the persons elected to the Board of Governors of the school under sub-paragraph (2)(c) and (d) shall, unless the other members of the Board of Governors otherwise determine, not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating to the acquisition, disposal or management of such assets is being discussed or to vote on any question relating to such a matter.

5.-(1) Where this paragraph applies in relation to the membership of the Board of Governors of a voluntary grammar school, the Board of Governors shall, notwithstanding anything in any instrument of government of the school, consist of-

(a)10, 18, 27 or 36 persons (in this paragraph referred to as voting members);

(b)the principal of the school who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question; and

(c)persons co-opted under Articles 122 and 139 of the 1989 Order who shall be entitled to attend and take part in meetings of the Board of Governors but not to vote on any question.

(2) Where there are 10 voting members of the Board of Governors of the school, then of those members-

(a)six shall be appointed as provided by the scheme of management and at least one of the persons so appointed shall, at the time of his appointment, be a parent of a pupil attending the school;

(b)two shall be appointed-

(i)where an agreement under paragraph 2 is in force in relation to the school, by the Head of the Department and the board or boards concerned in accordance with an agreement made between the Head of the Department and the board or boards concerned;

(ii)in any other case, by the Head of the Department;

(c)one shall be elected by parents of pupils attending the school from amongst parents of such pupils;

(d)one shall be elected by assistant teachers at the school from amongst such assistant teachers.

(3) Where there are 18, 27 or 36 members of the Board of Governors of the school, sub-paragraph (2) shall apply as if for the numbers mentioned in heads (a), (b), (c) and (d) of that sub-paragraph there were substituted the fractions five-ninths, two-ninths, one-ninth and one-ninth respectively.

(4) Subject to sub-paragraph (5), persons elected to the Board of Governors under sub-paragraph (2)(c) and (d) shall hold office for a period of four years from the date on which they were elected.

(5) If a person referred to in sub-paragraph (4) ceases to hold office before the end of the period referred to in that sub-paragraph, any person elected to replace him shall hold office only for the remainder of that period.

(6) The Board of Governors shall, with the approval of the Department, make arrangements for the election of persons under sub-paragraph (2)(c) and (d) and such arrangements shall ensure that any vote taken for the purpose of any such election shall be by secret ballot.

(7) Where under any instrument of government of a school assets of a capital nature held for the purposes of or in connection with the school are vested in the Board of Governors of the school, the persons elected to the Board of Governors of the school under sub-paragraph (2)(c) and (d) shall, unless the other members of the Board of Governors otherwise determine, not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating to the acquisition, disposal or management of such assets is being discussed or to vote on any question relating to such a matter.

6.-(1) The coming into force, or termination, of any agreement under paragraph 1(1) and any consequential change in the membership of the Board of Governors of a school shall not-

(a)constitute a change for the purposes of Article 14(2)(d) or (e); or

(b)break, or otherwise affect, the continuity of employment of persons employed by the Board of Governors.

(2) Where an agreement under paragraph 1(1)(a) in relation to a school is terminated under paragraph 1(3), the voting members of the Board of Governors of the school appointed under paragraph 4(2)(a) and (b) shall cease to hold office and such appointments to the Board of Governors shall be made under paragraph 5(2)(a) and (b) as are necessary to ensure that the membership of the Board of Governors complies with paragraph 5.

(3) Where an agreement under paragraph 1(1)(b) in relation to a school is terminated under paragraph 1(3), the voting members of the Board of Governors of the school appointed under paragraph 5(2)(a) and (b) shall cease to hold office and such appointments to the Board of Governors shall be made under paragraph 4(2)(a) and (b) as are necessary to ensure that the membership of the Board of Governors complies with paragraph 4.

(4) Persons appointed to the Board of Governors under sub-paragraph (2) or (3) shall hold office for the remainder of the original term of office of those ceasing to hold office under that provision.

(5) The termination under paragraph 1(3) of an agreement under paragraph 1(1) does not affect the membership of the Board of Governors of any persons other than those mentioned in sub-paragraph (2) or (3).

7. In this Schedule "assistant teacher" has the meaning assigned to it by paragraph 7 of Schedule 4."

N.I.

Schedule 3 rep. by 1996 NI 1

N.I.

Schedule 4-Amendments

N.I.

Schedule 5-Repeals