Mark Blois provides an update and overview on governing body structure and the complex demands made of governors – and possible changes on the horizon

(This article includes a quick reference list of categories of governor) Democratic accountability is a common feature of most public services. School governance is a quite radical approach to such accountability, involving many participants, and based on the twin principles of volunteering and stakeholder representation. In recent times a number of research of reports have identified limitations in the current model of school governance — and have made some proposals for reform. Now is therefore a good time to review how the legal framework for school governance has developed and what the future may hold.

DEVELOPMENT OF THE LEGAL FRAMEWORK

School governance has evolved over a long period. The Education Act 1870 first introduced a structure of lay governance that was accountable to the voting population. Since then, successive governments have gradually transformed the role of the school governing body. There have been a number of particularly interesting developments in the last 20 years:

  • The Education Act 1986 brought together in a single governing body the partnership that still exists between the local authority, parents, staff and the wider community of the school.
  • Governors became responsible for establishing the aims of the school; curricular and spending decisions; making staff appointments; pupil exclusions; political and sex education; and communication with parents.

The Education Reform Act 1988 saw these duties extended, with the introduction of local management of schools. This effectively devolved  responsibility for the budget and staff to governors. The Education Act 2002 introduced a raft of legislation that affected the work of governing bodies. In particular it streamlined school governance by giving governing bodies greater freedom to decide how they would operate, and by removing some restrictions on procedure. For example, a governing body became able to delegate most of its statutory functions to a committee, to any governor or to the head teacher. Business was also simplified, with a single quorum — as opposed to the previous variety of quorums for different types of decision.

STATUS OF GOVERNING BODY NOW

A school governing body is a corporate body. ‘Corporate body’ means that the governing body exists as a legal entity separate from the individual governors who are members of that corporate body.

There are eight categories of governor:

  • parent governors, who have a child in school at the time of their election and are elected by the parents with children at the school If there are insufficient nominations from parents to fill the vacancies, the governing body has to appoint parents
  • staff governors, who are members of staff at the school, and are elected by their colleagues. This category includes: the head teacher (who serves in an ex officio capacity), teaching and non-teaching staff Unlike parent governors, when a member of staff leaves the school s/he must also leave the governing body
  • community governors, who areco-opted onto the governing body by the other members because they come from a specialist group (such as the business community) or because they have a particular skill that they can contribute Community governors are found only in community and controlled schools
  • foundation governors, who are appointed by the school’s founding body, which in most cases is the Church This category of governor is found only in aided and controlled schools
  • local authority governors, who are nominated by the local authority
  • sponsor governors, who are appointed by the governors (if the governing body decided to include this category in their constitution) They are people who give substantial assistance to the school, financially or in kind, or who provide services
  • partnership governors are members of the community served by the school, and are appointed by the governing body They are only found at foundation schools without a church link
  • associate members are not governors but can serve on committees and attend meetings of the full governing body (but can not vote at such meetings)

School governing bodies are made up of between nine and 20 governors from some or most of the categories of governor. When a governing body underwent the reconstitution process under the provisions of the Education Act 2002, the governors will have decided how many governors they needed to operate effectively.

Delegation

The governing body is liable for all actions taken in its name by either an individual or a committee to which it has delegated functions. Governing bodies therefore need to keep a clear record of: any functions delegated; to whom they are delegated; and if there are any time limits on that delegation. Equally, any individual governor or committee to whom a particular authority has been delegated should be clear about the precise extent of that authority.

Individual liability

An individual governor will usually be protected from any personal liability incurred by an action of the governing body, unless the individual governor has not acted honestly, reasonably and in good faith. Individual governors have no authority to act on behalf of the governing body — unless either the whole governing body has delegated that particular authority to them, or the law requires it.

THE FUTURE

It is widely accepted that the school governing body of today has three key roles:

  • to set the strategic framework within which the head teacher will manage the school on a daily basis
  • to act as a critical friend, by supporting the work of the school, while offering an element of challenge through regular monitoring and evaluation of progress against agreed objectives
  • to ensure accountability through the provision of information both to, and from, the governing body

Changes in store

Will these three key roles remain relevant in the future? For example, democratic accountability and engagement with local stakeholders is arguably being undermined in the Government’s academies programme, which threatens the role and responsibilities of school governing bodies. There are no laws that control the composition of governing bodies for academies. Once a school becomes an academy, the elected members of the governing body lose control and the private sponsors are allowed to appoint a majority of its governors. The DCSF advice suggests that a typical governing body of an academy will consist of five or six sponsor governors, one local authority or council governor, one staff governor, one teacher governor, the head teacher and one or more parent governor. There are have also been a range of recent reports that suggest further changes of school governance may soon take place.

JOSEPH ROWNTREE FOUNDATION

Research by the JRF in 2007 found that school governing bodies are faced with increasingly complex tasks as successive governments have expected governors to take on more responsibility. They are expected to act as critical friends to head teachers, as strategic leaders of their schools, and to represent their local communities. Yet the Government has failed to ensure that governors have the capacity, in terms of time and expertise, to do so. The current system leaves governors ill-equipped to cope with the problems they face when running schools. The JRF also found that there is confusion about the precise role of governing bodies.

Three suggestions

The complexities of running schools have changed, but there has not been a rethink about what governing bodies are for. The JRF report identified three options for change:

  1. Incremental improvement  — governing bodies could remain much as they are, but imaginative practices for widening recruitment and encouraging participation could be introduced. At the same time, the Government could reduce the demands placed on governing bodies and consider more carefully the implications for the work of governors in any future reforms.
  2. Structural change — a radical solution, but it might be feasible to create a core of skilled and committed governors (perhaps paid) to work alongside others and lead groups of schools, with
    school-specific governors added for particular purposes.
  3. Radical alternatives — the Government is committed to devolving decision-making about public services to local communities.

In this context, the democratising role of governing bodies could be taken seriously — which could mean developing the links between governors, local communities, and activist groups, and giving governors more power to shape the work of their schools to local needs and wishes.

PRICEWATERHOUSECOOPERS

The PricewaterhouseCoopers Independent Review of School Leadership (2007) identifies how leadership models in schools are changing to meet new demands. It goes on to suggest reform of a number of key aspects of governance. In particular, it suggests reviewing the size and composition of governing bodies, and exploring the possible development of what it calls a ‘slimline executive governance model’.

Recommendations

In its final recommendations, the report notes: ‘A particular issue arising from our research is the need to balance the representative role that governors and governing bodies fulfil on behalf of their local communities and parent bodies, and the extent to which they bring professional skills and expertise that can support school leaders. ‘This links to how governors are recruited and rewarded for the role they play, and how this needs to be set in the context of the increasing demands on their time and commitment. There is also some evidence to suggest that governing bodies could be smaller and more strategic. On the other hand, the emergence of extended schools also opens up the possibility of co-opting representatives from other services such as, for example, health, social services and the voluntary sector.’

Against this background it appears that interesting times lie ahead for the 400,000 people who have volunteered to be school governors in the UK today.

CENTRE FOR PUBLIC SCRUTINY  It is sometimes the case that school governing bodies get too involved in the day-to-day running of schools and have to be reminded that their main roles are to be strategic, constructively critical and to provide accountability. By way of a response to this issue, the Centre for Public Scrutiny, in Strengthening Public Accountability on the School Governing Body (2006), has argued the case for separating the executive from scrutiny functions of the governing body. ‘Executive’ means decision-making and doing, or carrying out, specific actions in relation to school planning, budgeting and resourcing — including staffing. ‘Scrutiny’ is about monitoring and evaluating the effectiveness of those decisions and actions. This would include self-review; interrogation of school performance; review of the self-evaluation form; consultation with, and reporting back to, parents, pupils and other stakeholders; publication of the school profile; review of the budget for value for money; and monitoring exclusions and absences.

The report’s recommendations

The report suggests that a small executive board would be appointed from the full governing body with full delegated powers to manage the school. The executive would include the head and members of the senior leadership team, who would meet regularly to formulate and implement the strategy for school improvement. The full governing body would usually meet once a term and would be confined to carrying out the scrutiny function. ‘One member of the full governing body would be appointed to the role of Chair of Scrutiny to lead the new function. This would be a separate role from the Chair of the Governing Body who would sit on the executive. It promotes the concept of distributive leadership on the governing body which matches developments in senior leadership teams.’

The report concludes: ‘Guidance will be needed to clarify the work of executive groups, the scrutiny function and how the executive-scrutiny split will operate. However, there is nothing within current regulations that would prevent schools from operating this approach and thus any new powers to schools should be enabling, rather than mandatory, in the first instance, promoting the executive-scrutiny split model as best practice.’

Mark Blois is a partner at Browne Jacobson solicitors.

FIND OUT MORE
Schools, governors and disadvantage (JRF)
Strengthening Public Accountability on the School Governing Body
The PricewaterhouseCoopers Independent Review of School Leadership

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