- See the end of this post for extracts from an article by Jim Knight, published in the TES (24th Feb 2012) on his ideas for changes to the structure of school governance, including paid Chairs and federations of schools.
The School Governance (Constitution) (England) Regulations 2012
Coming into force in September 2012, the new regulations (laid on 19th April 2012) on reconstitution provide for Governing Bodies to choose, if they so wish, to change their makeup as follows:
A minimum of seven governors, comprising
- the headteacher (provided they choose to be on the GB)
- one elected staff governor
- at least two elected parent governors
- one local authority governor, nominated by the local authority and appointed by the Governing Body. (NB The draft regulations referred to “authority governors” but the final version uses “local authority”)
The governing body may in addition appoint such number of co-opted governors as they consider necessary provided that the requirements in regulation 14 are met in respect of governing bodies of foundation and voluntary schools.
Foundation Schools:
- Voluntary controlled schools must have at least two Foundation Governors (making up no more than 25% of total GB)
- Voluntary aided schools must have sufficient Foundation Governors to outnumber the others by two
There is also provision for partnership governors, and associate members (see extracts from the regulations below) but Sponsor Governors are not mentioned.
The term of office for each category of governor is four years, unless the GB decides that a specific category of governors would hold office for fewer.
What about “community governors”? The new name is the old name – this group will now be known once again as Co-opted governors. (This applies only to GBs constituted under the new regulations – existing GBs will continue to have “community governors”, until such time as they need to change their Instrument of Government.) Co-opted governors are appointed by the GB on the basis that they have “the skills required to contribute to the effective governance and success of the school”. The number of co-opted governors who are eligible to be staff governors, when counted with the HT and the Staff Governor, cannot exceed one third of total membership. Subject to that limit, there does not appear to be a maximum number of co-opted governors. The specified number of elected Parent Governors is at least two, but additional governors who were parents could be appointed by the GB as co-opted members.
Will the new names for categories of governors apply to all GBs? No – those Governing Bodies constituted under the old regulations will continue to abide by the original stakeholder model, and will have Community Governors (not Co-opted) and Authority Governors (not LA Governors).
Can we stay as we are and not reconstitute? Yes, providing you don’t need to change your Instrument of Government. The DfE have confirmed, however, that where a school changes its name from 1st September 2012, or otherwise varies its Instrument of Government, the Governing Body must be reconstituted under the 2012 Regulations. This is because, in relation to variations of Instruments of Government, the Regulations must refer to Regulation 32(2) of the 2007 Regulations and this relates to all variations – not just variations that relate to changes of constitution.
What happens if the old GB has more members than the reconstituted one? Answer: Last in, first out. Unless some existing governors are prepared to resign, the membership will be axed according to juniority.
Can we really have as many governors as we want? There is no stipulated limit to the size of the new Governing Body, though the DfE have indicated their preference for smaller GBs.
How will the appointment of Authority / Local Authority Governors work? GBs set up under the old regulations will continue to have their several Authority Governors appointed by the Local Authority as previously. Reconstituted GBs will be expected to liaise with the LA to identify the skills requirements (the eligibility criteria) for their one LA Governor vacancy. The nomination will be made by the LA and the appointment made by the GB. It is not clear (to C2G) what would happen if the nomination is not acceptable to the Governing Body ….
Here are selected extracts from the Regulations, which come into force in September 2012:
“These Regulations apply to a governing body if—
(a) the governing body are constituted under an instrument of government that takes effect on or after 1st September 2012; or
(b) where the governing body are constituted under an instrument of government that takes effect before 1st September 2012, the governing body or local authority decide under
regulation 32(2) of the School Governance (Constitution) (England) Regulations 2007 (“the Constitution Regulations 2007”) that the instrument of government should be varied.”
PART 2 Categories of governor
Parent governor
6.—(1) In these Regulations “parent governor” means—
(a) a person who—
(i) is elected in accordance with paragraphs 4 to 8 of Schedule 1 as a governor by parents of registered pupils(a) at the school, and
(ii) is such a parent at the time of election;
(b) where the school is a maintained nursery school, a person who is elected in accordance
with paragraphs 4 to 8 of Schedule 1 as a governor by—
(i) parents of registered pupils at the school, or
(ii) parents of children for whom educational or other provision is made on the premises of the school (including any such provision made by the governing body under section 27 of EA 2002), and is such a parent at the time of election; or
(c) a person who is appointed as a parent governor in accordance with paragraphs 9 to 11 of Schedule 1.
NB Schedule 1: 7(3) “The arrangements made under paragraph 4 may provide for every person who is entitled to vote to have an opportunity to do so by electronic means.” (C2G: I have been reminded that this is not a new provision, as it was also included within the Constitution Regulations 2007.)
Schedule 4: 5.—(1) A person is disqualified from election or appointment as a parent governor of a school if the person—
(a) is an elected member of the local authority; or
(b) is paid to work at the school for more than 500 hours in any twelve consecutive months.
(2) A person (“P”) is not disqualified from continuing to hold office as a parent governor because P ceases to be a parent of a registered pupil at the school or to fulfill any of the requirements set out in paragraphs 10 and 11 of Schedule 1 (as the case may be) .
Staff governor
7. In these Regulations “staff governor” means a person who—
(a) is elected in accordance with Schedule 2 as a governor by persons who are employed by either the governing body or the local authority under a contract of employment providing for those persons to work at the school, and
(b) is so employed at the time of election.
NB Schedule 4: 8. “Upon ceasing to work at the school, a staff governor of a school is disqualified from continuing to hold office as such a governor”.
Local authority governor
8. In these Regulations “local authority governor” means a person who—
(a) is nominated by the local authority; and
(b) is appointed as a governor by the governing body having, in the opinion of the governing body, met any eligibility criteria that they have set.
NB Schedule 4: 6. A person is disqualified from appointment as a local authority governor if the person is eligible to be a staff governor of the school.
Foundation governor
9. In these Regulations—
(a) “foundation governor” means a person who—
(i) is appointed as a governor by any person other than the local authority,
(ii) is appointed for the purpose of securing that the character of the school including, where the school has a particular religious character such religious character, is preserved and developed,
(iii) where the school has a foundation, is appointed for the purpose of securing that the
school is conducted in accordance with the foundation’s governing documents, including, where appropriate, any trust deed relating to the school, and
(iv) would, in the opinion of the person entitled to appoint the foundation governor, be
capable of achieving the purposes for which they would be appointed as a foundation
governor;
(b) “ex officio foundation governor” means a person who is a foundation governor by virtue
of an office held by the person;
(c) “substitute governor” means a foundation governor appointed to act in the place of an ex officio foundation governor who is unwilling or unable to act as a governor or has been
removed from office under regulation 21(1).
Partnership governor
10.—(1) In these Regulations “partnership governor” means a person who is appointed as such in accordance with Schedule 3.
(2) Where the school has a religious character, “partnership governor” means a person who is appointed for the purpose of securing that such religious character is preserved and developed.
Co-opted governor
11. In these Regulations “co-opted governor” means a person who is appointed as a governor by the governing body and who, in the opinion of the governing body, has the skills required to contribute to the effective governance and success of the school.
Associate members
12. In these Regulations “associate member” means a person who is appointed by the governing body as a member of any committee established by them but who is not a governor.
What happens if the old GB has more members than the reconstituted one? Answer: Last in, first out.
Surplus governors
15.—(1) Where—
(a) a maintained school has more governors of a particular category than are provided for by the instrument of government for the school, and
(b) the excess is not eliminated by the required number of governors resigning,
(c) such number of that category as is required to eliminate the excess must cease to hold
office in accordance with paragraphs (2) and (3).
(2) Governors must cease to hold office on the basis of juniority, the governor whose period of continuous service (whether as a governor of one or more than one category) is the shortest being the first who must cease to hold office.
(3) Where governors have held office for an equal length of time, the selection of those who must cease to hold office must be done by drawing lots.
(4) Any procedure set out in the instrument of government for the removal of excess foundation governors does not apply in the circumstances set out in paragraph (1).
Contents and form of instrument of government
28.—(1) The instrument of government for a maintained school must set out—
(a) the name of the school;
(b) the category of school(a) to which the school belongs, and—
(i) whether the school has a foundation, and
(ii) whether the school is a qualifying foundation school;
(c) the name of the governing body of the school;
(d) the manner in which the governing body is to be constituted in accordance with Part 3 of these Regulations, specifying—
(i) the number of governors in each category of governor, and
(ii) the total membership of the governing body;
(e) where the term of office for a category of governor is to be less than four years, the length of that term of office;
(f) where the school has foundation governors—
(i) the name of any person who is entitled to appoint such governors and, if there is more than one such person, the basis upon which such appointments are made,
(ii) details of any foundation governorship to be held ex officio, and
(iii) the name of any person who is entitled to request the removal of any ex officio
foundation governor and to appoint any substitute governor;
(g) where the school is a foundation or a voluntary school designated under section 69 of
SSFA 1998 as having a religious character, a description of the religious ethos of the
school; and
(h) the date on which the instrument of government takes effect.
(2) The manner in which the governing body is to be constituted, as set out in accordance with sub-paragraph (1)(d), must accord with the provisions of these Regulations as they apply to a school of the category to which the school belongs and, where appropriate, the nature of the school as specified in accordance with sub-paragraph (1)(b).
(3) Where the school has a foundation, the instrument of government must (subject to any
statutory provision) comply with the foundation’s governing documents, including any trust deed relating to the school.
Procedure for making the instrument
29.—(1) The governing body must prepare a draft of the instrument of government and submit it to the local authority.
(2) Where the school has foundation governors, the governing body must not submit the draft to the local authority unless it has been approved by—
(a) the foundation governors;
(b) the trustees of any foundation relating to the school;
(c) in the case of a Church of England school or Roman Catholic Church school, the appropriate diocesan authority; and
(d) in the case of any other school designated under section 69(3) of SSFA 1998 as having a
religious character, the appropriate religious body.
(3) On receiving the draft, the local authority must consider whether it complies with all
applicable legislative provisions, and if—
(a) they are content that the draft so complies, or
(b) there is agreement between the local authority, the governing body and (if the school has foundation governors) the persons listed in paragraph (2) that the draft should be revised to any extent, and the local authority are content that the revised draft complies with all applicable legislative provisions, they must make the instrument of government in the form of the draft or (as the case may be) in the form of the revised draft.
(4) If neither of sub-paragraphs (a) or (b) of paragraph (3) applies in the case of a school which does not have foundation governors, the local authority must—
(a) inform the governing body of the reasons why they are not content with the draft
instrument of government, and
(b) give the governing body a reasonable opportunity to reach agreement with them on
revising the draft, and must make the instrument of government either in the form of a revised draft agreed between them and the governing body or (in the absence of such agreement) in such form as they think fit having regard, in particular, to the category of school to which the school belongs and, where the school has a foundation, to the school’s relationship with its foundation as specified in accordance with regulation 28(1)(b).
(END of extracts from the new regulations)
What other changes might be on the horizon? The following is based on an article in the TES by Lord Jim Knight, former Schools Minister. (The article has been edited)
“There are more than 300,000 school governors for the 24,600 schools in this country, the largest group of volunteers in the Big Society. They give their time and do their best to support heads and other school leaders as they cope with an ever-growing set of responsibilities. By and large, school governors are great, but the governing bodies are not. They need to be reformed.
Good governance is crucial to successful organisations. It is how senior executives are held to account and supported and, ultimately, how their successors get appointed. Elsewhere in the public sector, non-executive board members tend to be paid, are professionally recruited and go through the Nolan process to avoid political patronage. They are appointed on the basis of skills and competence. By contrast, most school governors are appointed on the basis of who or what they represent. Every governing body has parents and teacher representatives, and local authority governors are often there for political reasons.
The result is highly variable quality. The consequence is too often headteachers spending valuable time managing their governors.
This is in the worst tradition of Big Society British amateurism. We should not then be surprised when governors struggle to know what to look for when appointing a new head. Often they look for a candidate who is similar to the departing head, because they do not have the skills or experience to do otherwise.
We have muddled along like this for a long time. For as long as local authorities had a strong role in supporting governing bodies this was just about manageable. But as the government drives more school autonomy, with every school an academy, governors are being loaded with more responsibility. ..
The move towards autonomy from local authorities is now unstoppable. The trend is for schools to form themselves into clusters so that they can achieve economies of scale for procurement and specialist staffing. Every school should be required to join clusters of 10 to 20 schools, ideally with primary, secondary and special schools within them. This allows for more all-through and more inclusive education to develop.
These clusters should then become hard federations with a single governing body. This means that, rather than trying to have 25,000 governing bodies, we would be aiming at having just 1,500-2,500; each with high levels of skills for supporting and challenging school leaders.
Most governing bodies pay for their clerks. With this reduction in the number of governing bodies, we should also move to paid chairs of governors. This would mean proper recruitment on the basis of skills and experience. The rest of the governing body should also be appointed for the balance of skills needed.
Each school should (also) have a council made up of representatives of parents, staff, local employers and possibly pupils.
US charter schools are granted a charter for three to five years by the local school board and are judged on the basis of a contract to deliver their plans, including results. I propose that councils should be given the authority to contract the new governing body to deliver the education in schools in their area for five years. If the council chooses not to renew the contract they should run a school competition to decide who is best to take over. This returns local accountability to councils without going back to the days of them delivering education themselves.”
Lord Knight is a former schools minister.
