Office of the Queen's Printer for Scotland
PART I continued
(1) Subject to subsections (4) and (5) below and to the provisions of sections 38 and 39 of, and Schedule 8 to, this Act, on the incorporation date there shall be transferred to and vest in the board of management of a self-governing school—
(a) all land or moveable property (whether corporeal or incorporeal) which, immediately before that date, is—
(i) owned by an education authority; and
(ii) used or held by that authority for the purposes of that school;
(b) subject to subsection (5) below, all liabilities and obligations of the authority in respect of that school, or in respect of property used or held for the purposes of that school; and
(c) all moveable property (whether corporeal or incorporeal) acquired, and liabilities and obligations incurred, by the school board in relation to that school.
(2) The land and moveable property mentioned in subsection (1)(a) above includes any land or moveable property which, immediately before the incorporation date, is used or held by the education authority—
(a) for the purposes of more than one of the schools in their area; or
(b) partly for the purposes of one or more of such schools and partly for other purposes,
to the extent that it is so used or held for the purposes of the school in question.
(3) The liabilities and obligations mentioned in subsection (1)(b) above include any liabilities or obligations subsisting—
(a) for the purposes of more than one of the schools in the education authority’s area; or
(b) partly for the purposes of one or more of such schools and partly for other purposes,
in so far as those liabilities or obligations subsist for the purposes of the school in question.
(4) The land or moveable property mentioned in subsection (1)(a) above does not include any hostels provided and maintained by the education authority under section 13 (provision of hostels) of the 1980 Act.
(5) The liabilities and obligations to be transferred to a board of management under subsection (1)(b) above do not include—
(a) any obligation to repay the principal or interest of any loan incurred by the authority for the purposes of that school;
(b) any obligation of the authority in respect of compensation for premature retirement of any person formerly employed by them;
(c) any obligation or liability under a contract of employment relating to a person previously employed by the education authority to whom section 22 of this Act does not apply; or
(d) any delictual, strict or statutory liability of the authority arising out of any act or omission where a cause of action accrued before the incorporation date.
(6) Subject to section 14(2) of this Act, any land owned by an education authority which is, as at the date when the authority receive a notice under section 13(6) of this Act, either of a first resolution or of a request, to any extent used or held for the purposes of the school to which the notice relates shall be deemed still to be so used or held at the incorporation date unless the authority have obtained the consent of the school board to any change in the purposes for which it is used or held.
(7) An education authority shall not, with the object of—
(a) preventing or restricting the operation of this section in relation to; or
(b) retaining, whether directly or indirectly, some control over,
any land or moveable property which would, in the event of a school’s becoming a self-governing school, fall to be transferred to the board of management of that school under this section, transfer, or enter into any transaction involving, any such land or moveable property.
(8) Schedule 8 to this Act, which makes provision in relation to the transfer and apportionment of assets, shall have effect.
(1) This section applies where a board of management seek the consent of the Secretary of State to the disposal of land which was—
(a) transferred to the board under section 36 of this Act; or
(b) acquired by the board, wholly or partly, with the proceeds of the sale of land which was transferred as mentioned in paragraph (a) above; or
(c) acquired by the board, wholly or partly, with the proceeds of the sale of land which was acquired, wholly or partly—
(i) as mentioned in paragraph (b) above; or
(ii) with the proceeds of any subsequent sale of any such land.
(2) Where the consent of the Secretary of State is sought as mentioned in subsection (1) above, he may—
(a) require the board of management to transfer the land, or any part of it, to the education authority upon payment by the authority to the board of such consideration, if any, as he considers appropriate; or
(b) except in a case where the land is being transferred to the education authority, require the board of management to pay to the authority all, or any part of, the consideration which they receive in respect of the disposal of the land.
(3) Where any land such as is mentioned in subsection (1) above is compulsorily acquired from a board of management, they shall—
(a) not require to seek the consent of the Secretary of State to such disposal; but
(b) inform him that the land is being compulsorily acquired from them; and
(c) pay to the education authority the whole or such part of the compensation which they receive in respect of the compulsory acquisition as the Secretary of State may direct.
Schedule 9 to this Act shall have effect as regards the appointment etc. of commissioners for school assets.
(1) A commissioner for school assets appointed in respect of a school shall, in accordance with this section, from time to time issue certificates specifying land, moveable property, liabilities and obligations which are to transfer or have transferred to the board of management from the education authority under section 36 of this Act, and which have been identified in—
(a) any agreement reached in that regard between a commissioner and the authority under paragraph 1 of Schedule 8 to this Act;
(b) any determination made by the Secretary of State under paragraph 5(2) of the said Schedule 8; or
(c) any order made by the court under section 42 or 45 of this Act.
(2) The commissioner shall issue separate certificates in respect of—
(a) land; and
(b) all moveable property and any liabilities and obligations other than those relating to land.
(3) Subject to section 8 of the [1985 c. 73.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (which relates to the rectification of documents defectively expressed), a certificate issued under this section shall be conclusive evidence of the matters specified therein.
(4) A certificate issued under this section in respect of land may, where appropriate, be recorded in the Register of Sasines and shall be treated, for the purposes of—
(a) the [1973 c. 52.] Prescription and Limitation (Scotland) Act 1973, as a deed sufficient in respect of its terms to constitute in favour of the board of management a title to an interest in land; and
(b) any enactment relating to the conveyance of land, as such a conveyance.
(5) A commissioner for school assets appointed in respect of a school or, where the commissioner’s appointment has been terminated, the board of management of that school shall not, without the prior consent of the Secretary of State, apply to the court under the said section 8 for the rectification of any certificate issued by the commissioner under this section.
(1) Subject to subsection (2) below, any person showing an interest may apply to the court for a declarator that land, moveable property, liabilities or obligations of an education authority have transferred to a board of management of a self-governing school, notwithstanding that no certificate has been issued under section 39 of this Act in respect thereof.
(2) The board of management of a self-governing school shall not, without the prior consent of the Secretary of State, raise or defend any such proceedings as are mentioned in subsection (1) above.
(1) Where it appears to the commissioner for school assets appointed in respect of any school, whether before or after the incorporation date, that the education authority have—
(a) removed or withdrawn from the school any moveable property; or
(b) transferred, or entered into a transaction involving, any land or moveable property,
which in the opinion of the commissioner would transfer or, as the case may be, would have transferred to the board of management of that school on that date under section 36 of this Act, he shall refer the matter to the Secretary of State.
(2) Where a matter is referred to the Secretary of State under subsection (1) above, he shall, after taking such advice from the commissioner as he may require, consult—
(a) the education authority; and
(b) any third party having an interest in the land or moveable property,
and shall thereafter make a determination as to what, if any, of the land or moveable property mentioned in the referral should transfer or, as the case may be, should have transferred to the board of management on the incorporation date.
(3) Where the Secretary of State has made a determination under subsection (2) above that property should or, as the case may be, should have transferred the commissioner for school assets—
(a) shall issue an interim certificate complying with that determination; and
(b) may take such action as appears to him to be appropriate against the education authority under section 42, 44, 45, 46 or 47 of this Act.
(4) An interim certificate issued under subsection (3) above shall specify the land or moveable property which should transfer or, as the case may be, should have transferred to the board of management.
(1) Subject to the provisions of this section, a commissioner for school assets may apply to the Court of Session for—
(a) an order setting aside or varying any transfer of, or transaction involving, land or moveable property which has been effected by the education authority in contravention of section 36(7) of this Act; or
(b) damages in respect of—
(i) the value of any property so transferred; and
(ii) any loss incurred by the commissioner or the board of management as a result of the said contravention.
(2) An application under this section shall not be made—
(a) more than one year after the incorporation date; or
(b) in respect of a transfer or transaction effected—
(i) prior to 22nd November 1988;
(ii) more than five years before the date of the making of the application; or
(iii) subject to section 14(2) of this Act, after an education authority have received a notice under section 13(6) of this Act, either of a first resolution or of a request;
or
(c) other than in respect of a transfer or transaction involving land or moveable property in respect of which the commissioner for school assets has issued an interim certificate under section 41 of this Act.
(3) Where the court is satisfied that the education authority effected the transfer or transaction in contravention of section 36(7) of this Act it may make the order applied for or such other order as it thinks fit.
(4) Where the court makes an order under subsection (3) above, it may include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective.
(5) The court shall not make an order under this section which would prejudice a party who acquired the land or moveable property—
(a) in good faith and for value; or
(b) from a party who had so acquired it.
(1) Subject to the provisions of this section and to section 14(2) of this Act, an education authority who have received a notice from a school board under section 13(6) of this Act, either of a first resolution or of a request, shall not, until one of the conditions specified in subsection (2) below is satisfied as regards the school—
(a) dispose of; or
(b) enter into any agreement or unilateral obligation with respect to,
any land or moveable property which is used or held by the authority wholly or partly for the purposes of that school.
(2) The conditions mentioned in subsection (1) above are that—
(a) the authority have obtained the prior consent of the school board; or
(b) in a case where the notice received was of a first resolution, forty-six days have passed since the date of that resolution without the education authority having received written notice, under subsection (6) of section 13 of this Act, of a second resolution; or
(c) the result of a ballot held in accordance with section 14 of this Act is not as is mentioned in subsection (1) of section 16 of this Act and two weeks have thereafter passed without the Secretary of State having declared the ballot void under section 15(1) of this Act; or
(d) proposals published in accordance with subsection (2) of the said section 16 are either rejected by the Secretary of State or are withdrawn without a requirement being imposed under section 18(2) of this Act.
(3) Subsection (1) above does not apply to any disposal made under—
(a) an agreement entered into; or
(b) a unilateral obligation executed and intimated to the beneficiary,
before the receipt by the authority of the notice mentioned in subsection (1) above.
(4) This section has effect notwithstanding anything in section 74 of the 1973 Act (general power to dispose of land) or in any other enactment; and the consent required by this section shall be in addition to the consent required by subsection (2) of that section or by any other enactment.
(1) Where an education authority have entered into any agreement or unilateral obligation with respect to land or moveable property in contravention of section 43(1) of this Act the commissioner for school assets appointed in respect of the school in question may, with the prior consent of the Secretary of State but before any such agreement is implemented or any right under any such unilateral obligation is exercised, serve a notice on the parties mentioned in subsection (2) below informing them that the agreement or undertaking is at an end.
(2) The parties referred to in subsection (1) above are, in the case of—
(a) an agreement, the parties to that agreement and any third party who is a beneficiary thereunder; and
(b) a unilateral obligation, the education authority and the beneficiary.
(3) A notice under subsection (1) above shall be treated for all purposes as a repudiation by the education authority of the agreement or obligation to which the notice relates.
(1) Where any land or moveable property has been disposed of by an education authority in contravention of section 43(1) of this Act, the commissioner for school assets appointed in respect of the school concerned may apply to the Court of Session for an order—
(a) reducing any document by which the disposal was effected; or
(b) where the disposal was effected by an oral agreement, setting aside the disposal.
(2) In an application made under this section the court may, if it is satisfied that—
(a) the education authority had received a notice under section 13(6) of this Act, either of a first resolution or of a request, or in a case such as is mentioned in subsection (2) of section 14 of this Act intimation of consent under that subsection, before the disposal was made;
(b) the school board had not consented to the disposal; and
(c) the commissioner for school assets has issued an interim certificate under section 41 of this Act in respect of the land or moveable property disposed of,
make the order applied for or such other order as it thinks fit.
(3) The court shall not make an order under this section which would prejudice a party who acquired the land or moveable property—
(a) in good faith and for value; or
(b) from a party who had so acquired it.
(4) Where the court makes an order under this section, it may include in the order such terms and conditions as it thinks fit and may make any ancillary order which it considers expedient to ensure that the order is effective.
(1) Where a commissioner for school assets cannot (as, for example, by reason of the operation of subsection (3) of section 45 of this Act), or decides not to, exercise the remedy provided by that section in relation to a contravention by the education authority of section 43(1) of this Act he may raise an action against that authority under this section.
(2) In an action under this section a commissioner for school assets may seek to recover from the authority—
(a) the value of the land or moveable property which was disposed of by the authority in contravention of the said section 43(1); and
(b) any additional expenditure reasonably incurred by him or by the board of management as a result of that disposal.
(3) The court shall not grant decree in an action under this section unless satisfied as to the matters mentioned in paragraphs (a), (b) and (c) of section 45(2) of this Act.
(1) Subject to section 14(2) of this Act, an education authority who have received a notice under section 13(6) of this Act, either of a first resolution or of a request, shall not, until one of the conditions specified in subsection (2) of section 43 of this Act is satisfied as regards a school, remove or withdraw from the premises of that school any moveable property which is owned or held by that authority wholly or partly for the purposes of that school.
(2) Where an education authority have removed or withdrawn any property in contravention of subsection (1) above, the commissioner for school assets appointed in respect of that school may raise against the authority an action—
(a) for payment in respect of the value of the property concerned; and
(b) of damages in respect of any additional expenditure reasonably incurred by him or by the board of management as a result of the said removal or withdrawal.
(3) The court shall not grant decree in an action raised under this section unless satisfied as to the matters mentioned in paragraphs (a), (b) and (c) of section 45(2) of this Act.
The education authority shall, on the incorporation date or as soon as practicable thereafter, provide the board of management of a self-governing school with all the information held by that authority in respect of that school including, without prejudice to the generality of the foregoing, information in respect of—
(a) the administration of the school;
(b) the fabric of the school;
(c) staff transferred from the employment of the authority to the employment of the board of management by virtue of section 22 of this Act; and
(d) the pupils in attendance at the school.
(1) Where, immediately before the incorporation date in relation to any school, an educational endowment is to any extent vested in an education authority solely for the purposes of the school, the endowment shall, on that date and to that extent, be transferred to and vest for the same purposes in the board of management of the school.
(2) Where—
(a) an educational endowment is to any extent vested in an officer of an education authority (whether by virtue of his office or otherwise) solely for the purposes of any school; and
(b) that school becomes a self-governing school,
the endowment shall to that extent be transferred to and vest in such person as may be nominated for the purpose by the board of management of the school with effect from the date when the board make the nomination.
(3) Where an educational endowment is vested in an education authority generally for the benefit of the schools or of any group of the schools in their area or for the benefit of the pupils attending those schools, the authority shall apply that endowment for the benefit of any of those schools which has become a self-governing school or, as the case may be, of the pupils attending any such school as if that school were still maintained by that authority.
(1) Where the Secretary of State has—
(a) approved proposals made under section 31 of this Act for the discontinuance of a school; or
(b) given notice under section 33 of this Act that he intends to cease to maintain a school with effect from a particular date,
he may, after consultation with the education authority and subject to subsection (2) below, by order under this section make provision for the winding up of the school.
(2) Where subsection (2)(a) of the said section 33 applies to a notice given under that section the Secretary of State shall not make an order under this section within 5 years of the date on which he gives the said notice.
(3) Without prejudice to the generality of subsection (1) above, an order under this section may—
(a) stipulate a time-table for the winding up of the school;
(b) provide for the payment of the expenses of the winding up;
(c) appoint a date (the “dissolution date”) on which—
(i) the board of management is to be dissolved; and
(ii) the property mentioned in section 51 of this Act is to be transferred to other persons in accordance with the provisions of that section;
(d) confer powers or impose duties on the board of management in relation to the winding up of the school;
(e) provide for the ingathering of any land or moveable property owned by—
(i) the board; or
(ii) trustees for the purposes of the school;
(f) provide for the discharging by the board of any of their liabilities;
(g) provide for the repayment by the board to the Secretary of State of the unexpended portion of any capital grant made by him to the board;
(h) require the board to comply with any directions made by the Secretary of State;
(j) provide for—
(i) the exercise of any of the board’s functions; and
(ii) the execution of documents on behalf of the board,
by any member of the board named in the order; and
(k) require the board to give notice of dismissal to persons employed by them with effect from such date as may be specified in the order.
(4) The Secretary of State shall not in an order under this section appoint a dissolution date unless he is satisfied that—
(a) all liabilities of the board of management have been discharged;
(b) all the expenses of the winding up have been met; and
(c) the board of management have complied with all the obligations imposed on them in respect of the winding up.
(5) The Secretary of State may make grants to a board of management for the purpose of—
(a) discharging any liabilities of the board; and
(b) enabling the board to defray the expenses of the winding up,
and in relation to any such grant he may impose requirements on the board before, at or after the time at which the payment of the grant is made.
(1) An order made under section 50 of this Act may provide for the disposal of all land and moveable property owned by the board of management—
(a) absolutely; or
(b) as trustees for the purposes of the school,
in accordance with the provisions of this section.
(2) Subject to subsection (4) below, an order under the said section 50 may provide that all land and moveable property owned by a board of management immediately before the dissolution date shall, on that date, transfer to and vest in the education authority.
(3) An order under the said section 50 may provide that all land and moveable property owned by the board of management as trustees for the purposes of the school shall on the dissolution date transfer to and vest in the said education authority—
(a) on trust for such purposes as may be specified in the order; or
(b) where it appears to the Secretary of State that the land or moveable property concerned was purchased or otherwise provided wholly or mainly by or at the expense of the education authority, absolutely.
(4) Where it appears to the Secretary of State that—
(a) any land or moveable property, or any class or description of land or moveable property, in the ownership or under the control of the board of management has been procured, whether before or after the incorporation date, otherwise than at the expense of the education authority; and
(b) it is appropriate, on that account, to exclude that land or moveable property, or land or moveable property of that class or description, from transfer to the authority,
he may in an order under the said section 50 transfer any such land or moveable property to such persons as may be designated in the order on such terms as may be so designated.
(5) Any land or moveable property transferred to any person by an order under the said section 50 shall vest in that person on the dissolution date specified in the order.
(6) If a person to whom any land is transferred by an order under the said section 50 wishes to complete a title to the land so transferred by expeding a notarial instrument or notice of title or otherwise, the said order shall be deemed to be and may be used as a general disposition or assignation of the said land in favour of that person.
(7) Where any land or moveable property which has been purchased for a school out of funds provided by way of a capital grant by the Secretary of State has been—
(a) transferred to an education authority under subsection (2) above; and
(b) thereafter sold by that education authority to a third party,
the Secretary of State may require the education authority to pay him the whole or part of the money spent by him in—
(i) making the said capital grant; and
(ii) making grants to the board of management under section 50(5) of this Act:
Provided that the sums required from the education authority by the Secretary of State under sub-paragraphs (i) and (ii) above shall not amount to more than the total amount received by the authority in respect of the sale of the land or moveable property.
(1) Subject to the provisions of this section, where, for the purpose of establishing a new independent school, any person (“the proposer”) proposes to occupy the premises of a school which is being wound up, the Secretary of State may, in an order under section 50 of this Act, transfer any of the land and moveable property mentioned in section 51(1) of this Act to that person; and the provisions of the said section 51 shall apply in relation to land or moveable property transferred to a proposer by virtue of this section as they apply to land or moveable property transferred to an education authority by virtue of that section.
(2) Where land or moveable property is transferred as described in subsection (1) above, the proposer shall pay the appropriate consideration to the education authority.
(3) An order made by virtue of subsection (1) above may provide for—
(a) the payment by the proposer to the Secretary of State of any sums expended by the latter by way of—
(i) capital grants to the board of management of the discontinued school prior to the making of a winding up order in respect of the school; and
(ii) grants made by him under subsection (5) of the said section 50;
(b) the payment by the proposer of any sums for which the board of management are liable in respect of—
(i) any outstanding debts or monetary obligations, including redundancy payments to former staff of the school; or
(ii) the expenses of the winding up,
in so far as any such payments have not been met out of grants made by the Secretary of State; and
(c) for any sums paid by the proposer under paragraph (a) or (b) above to be deducted from the money payable by the proposer to the education authority under subsection (2) above.
(4) In this section “the appropriate consideration” means, in relation to—
(a) land, such an amount as the Secretary of State determines to be the market value of the land as at the dissolution date or as at a date no earlier than six months before that date; and
(b) moveable property, such an amount as the Secretary of State determines to be a fair consideration for the transfer of that property.
(1) Subject to subsection (2) below—
(a) any money held by a board of management (whether in cash or to their account at or on deposit with any bank or other institution which may lawfully take deposits within the meaning of the [1987 c. 22.] Banking Act 1987); and
(b) any investments to which this section applies held by such a board,
shall be paid or, as the case may be, transferred to the Secretary of State, after—
(i) discharge of their liabilities (other than any not required to be discharged before the dissolution date is appointed); and
(ii) payment of all expenses of the winding up.
(2) Where the Secretary of State is satisfied as to the whole or any part of any such money or as to any such investments—
(a) that the money or that part of it was derived or, as the case may be, those investments were acquired otherwise than from grants paid by him; and
(b) that it ought to be paid, or the investments ought to be transferred, to an education authority or to some other person,
he may require the board of management to pay that money, or an amount equal to the part in question, or to transfer those investments, to such education authority or other person as he may specify, either absolutely or in trust for such purposes as he may specify.
(3) Without prejudice to the power of the Secretary of State under subsection (2) above, any payment of money or transfer of investments under this section shall be free of any trusts on which the money or investments are held by the board of management before the payment or transfer is made.
(4) This section applies to any investment within the meaning of the [1986 c. 60.] Financial Services Act 1986 which falls within—
(a) any of paragraphs 1 to 6 of Schedule 1 to that Act; or
(b) paragraph 11 of that Schedule, so far as referring to investments falling within any paragraph of that Schedule mentioned in paragraph (a) above.
(5) References in subsection (4) above to any paragraphs of Schedule 1 to that Act include references to those paragraphs as amended by any order under section 2 of the said Act of 1986 (power of Secretary of State to extend or restrict scope of Act) which amends those paragraphs for the purposes of all the provisions of that Act.
Self-governing Schools etc (Scotland) Act 1989