Statutory Guidance on the Constitution of governing bodies of maintained schools

 

Statutory guidance: Constitution of governing bodies of maintained schools August 2015

 
This is from the statutory guidance from the Department for Education. (as updated in August 2015)

“Statutory guidance” means that governing bodies (including governing bodies of federations) and local authorities must have regard to it when carrying out duties relating to the constitution of governing bodies in maintained schools.

This guidance is about the constitution of governing bodies and their size, membership and skills. It also explains the arrangements for the constitution of governing bodies of maintained schools constituted under the School Governance (Constitution) (England) Regulations 2012.

All governing bodies of maintained schools are required to be constituted under the School Governance (Constitution) (England) Regulations 2012 or the School Governance (Federations) (England) Regulations 2012, as appropriate, by 1 September 2015.

Review date This guidance will next be reviewed in January 2016.

What legislation does this guidance refer to?

The School Governance (Constitution) (England) Regulations 2012 (the “2012

Constitution Regulations”) and the School Governance (Federations) (England) Regulations 2012 (the “2012 Federation Regulations”) as amended by the School Governance (Constitution and Federations) (England) (Amendment) Regulations 2014.

Who is this guidance for?

This guidance is for:

  • School governors in all maintained schools (including those in federations) in

England; and

  • Local authorities in England.

It will also be of interest to school leaders and school staff in all maintained schools in England and governor support organisations

Main points

  1. Governing bodies should be no bigger than necessary to secure the range of skills they need. Smaller governing bodies are likely to be more cohesive and dynamic.
  2. A key consideration in the appointment and election of all new governors should be the skills and experience the governing body needs to be effective.
  3. Governing bodies should use a skills audit to identify any specific gaps that need to be filled in the skills, knowledge and experience of existing governors.
  4. Before being nominated for election or appointment, all prospective governors should be helped to understand the role of a governor and the governing bodies’ code of conduct.
  5. Anyone appointing governors to the governing body must appoint someone they believe has the skills to contribute to effective governance and the success of the school. Their decisions should be informed by interviews and references.
  6. Governing bodies and local authorities should take steps to inform governor elections so that the electorate understands the extent to which nominated candidates possess the skills the governing body ideally requires.
  7. Foundation governors have a particular purpose to safeguard the character of the school and ensure it is conducted in accordance with any founding documents, but otherwise every governor’s role is to govern the school in the best interest of pupils, not to represent the interests of the constituency from which they were elected or appointed.
  8. Meaningful and effective engagement with parents, staff and the wider community is vital. It is not the role of governing bodies to provide this through their membership. They need to assure themselves that specific arrangements are in place for this purpose.
  9. Governing bodies should review their effectiveness regularly, including the extent to which their size and structure is fit for purpose and their members have the necessary skills.
  10. Governing more than one school can generate a more strategic perspective and more robust accountability through the ability to compare and contrast across schools.
  11. Governing bodies should publish on their websites information about their governors, including relevant business and pecuniary interests.
  12. All governing bodies must be constituted under the 2012 Constitution Regulations or the 2012 Federation Regulations, as appropriate, by 1 September 2015.
Purpose and structure of this guidance
  1. This is statutory guidance on the discharge of governing bodies and local authorities’ functions under the 2012 Constitution Regulations (for federations the 2012Federation Regulations), as amended. Governing bodies and local authorities are required to have regard to it. The main purpose of this guidance is to highlight the direct impact that decisions about the constitution and membership of the governing body have on the governing body’s ability to provide effective governance and contribute to the success of the school.
  1. Annex A to this guidance explains the four aspects of the arrangements for the constitution of governing bodies set out in the 2012 Constitution Regulations:
  • the description of the different categories of governor
  • how governing bodies are to be constituted
  • terms of office, removal and disqualification of governors, and
  • how instruments of government are made and amended.
  1. Annex B summarises the requirements of the 2012 Constitution Regulations in different types of school. A model instrument of government for governing bodies constituted under the 2012 Constitution Regulations is provided at Annex C.
Priorities in deciding the constitution of the governing body
  1. Governing bodies should be no bigger than they need to be to have all the skills necessary to carry out their functions. The size and structure of the governing body should be designed so that every member actively contributes relevant skills and experience.
  1. Smaller governing bodies are more likely to be cohesive and dynamic, and able to act more decisively. This is particularly true when things go wrong, as illustrated by the contrast between the impact of small tightly focused Interim Executive Boards and the often large and unfocused governing bodies that many academy sponsors report they need to reform.
  1. The need for governing bodies to establish committees, including for exclusions or disciplinary matters, does not in itself necessitate a large governing body. Committees of the governing body can be established specifically for these purposes to which new associate members may be appointed. In addition, under the School Governance (Collaboration) (England) Regulations 2003, the committee may be established as a joint committee with another governing body to enable it to include governors from another school.
  1. All governing bodies should review their effectiveness on a regular basis. This should include reflecting on the merits of their constitution and the additional benefits that may be gained from forming a federation to create a single governing body across more than one school in order to develop a more strategic perspective and create more robust accountability through the ability to compare and contrast across schools.
  1. Governing bodies should re-evaluate their constitution if things are not going well – for example following an Ofsted inspection or in the light of an external review of governance. They should also consider the benefits of re-constitution as a positive and proactive move to ensure they are fit for purpose for the future, including in the context of a conversion to academy status.
Priorities in deciding the membership of the governing body
  1. Each of the various categories of governor prescribed in the Regulations has its own eligibility criteria and means of appointment – this guidance does not add additional eligibility criteria, but sets out considerations to which those exercising their powers under the Regulations must have regard.
  1. Once appointed or elected, all governors must operate in the best interest of pupils, not as representatives to lobby on behalf of their constituency. (Note 2) Their task is to govern the school. This means focusing on the core functions of providing strategic leadership, holding the headteacher to account and making sure the school’s money is well spent. This is a demanding task for which all governors need to have, or develop, relevant and appropriate skills. (2. Notwithstanding the role of Foundation governors to preserve and develop the school’s character (including religious character where it has one) and where the school has a foundation, ensure that the school is conducted in accordance with the foundation’s governing documents.)
  1. Meaningful and effective engagement with parents, staff and the wider community is vital, but not guaranteed by the presence of the various categories of governor on the governing body. The membership of the governing body should focus on skills, with stakeholder engagement as an important but distinct activity for which governing bodies will need to assure themselves that appropriate structures and arrangements are in place. Governors themselves should seek to assist their school to build relationships with business and other employers in order to enhance the education and raise the aspirations of pupils.
  1. While all current and prospective governors should commit to continuing professional development to develop their skills as governors, filling a vacancy on the governing body provides a specific opportunity to fill any skills gaps. The first priority for a governing body in filling a vacancy on the governing body should therefore be to do what is in their power to secure a new governor with the ability and experience they require or, if this is not possible, at least the capacity and willingness to develop them.
  2. A skills audit, such as that produced by the National Governors’ Association, should be used to identify the skills, knowledge and experience of current governors and any additional specific skills or experience that the governing body ideally requires. The outcome of the audit will help the governing body or other appointing persons (3) to formulate their opinion as to whether prospective governors have the skills to contribute to effective governance and the success of the school. To make an informed decision on the matter an interview or detailed discussion will need to take place with each prospective candidate, with references (oral or written) taken as necessary and appropriate. The skills audit will also help to inform governor elections as discussed below. (3. ‘Person’ is the term used in the regulations, in practice this will usually be an organisation such as a Diocese, Parochial Church Council or Foundation Trust)
  3. Governing bodies should make every effort to help all prospective governors understand clearly the role of a governor. For example, before they are nominated for appointment or election prospective governors may be invited to observe a governing body meeting and to meet the chair and other governors and the headteacher. A code of conduct should be maintained and communicated to all prospective governors to set clear expectations of the governors’ role and behaviour. Explicit agreement to the code of conduct will mean there is a common reference point should any difficulties arise in the future.
  1. Governing bodies and others responsible for nominating or appointing governors should make use of all available channels to identify suitable governors. This includes the services of SGOSS and Inspiring the Future which are funded by the Department to provide a free service to governing bodies, local authorities and diocese to help them find new governors with the skills they require.
  1. While it is essential to build a strong and cohesive non-executive team, the most robust governing bodies welcome and thrive on having a sufficiently diverse range of viewpoints, such that open debate leads to good decisions in the interests of the whole school community. Notwithstanding the role of foundation governors in a faith- designated school, governing bodies should be alert to the risk of becoming dominated by one particular mind-set or strand of opinion, whether related to faith or otherwise. Having some members who have no close ties with the school can help ensure that the governing body has sufficient internal challenge to how they carry out their strategic functions.
  1. We recognise that there are people who have the skill and the time to serve effectively on a number of governing bodies, and we do not want to restrict their ability to do so. However, where a prospective governor is already a governor of another school, the chair of governors should speak to the chair of the other governing body to discuss both the skills of the individual and, where appropriate, their capacity to serve effectively on an additional governing body. It is likely that only in exceptional circumstances will it be practical and beneficial for an individual to serve on more than two governing bodies – but this is rightly a matter for the appointing body to decide.
The skills governing bodies need
  1. The Regulations, as amended, create an explicit requirement that all appointed governors have the skills required to contribute to effective governance and the success of the school. The specific skills that governing bodies need to meet their particular challenges will vary. It is therefore for governing bodies and other appointing persons to determine in their own opinion, having regard to this guidance, what these skills are and be satisfied that the governors they appoint have them. They may interpret the word skills to include personal attributes, qualities and capabilities, such as the ability and willingness to learn and develop new skills.
  1. Experience has shown that all governors need a strong commitment to the role and to improving outcomes for children, the inquisitiveness to question and analyse, and the willingness to learn. They need good inter-personal skills, appropriate levels of literacy in English (unless a governing body is prepared to make special arrangements), and sufficient numeracy skills to understand basic data. Foundation governors need the skills to understand the ethos of the school and its implications for the way it is governed.
  1. Experience also shows that effective governing bodies seek to secure or develop within their membership as a whole expertise and experience in analysing performance data, in budgeting and driving financial efficiency, and in performance management and employment issues, including grievances. They seek to recruit and/or develop governors with the skills to work constructively in committees, chair meetings and to lead the governing body.
  1. It is governing bodies’ responsibility to identify and secure the induction and other ongoing training and development governors need. Governing bodies should set aside a budget for this purpose.
Governor elections
  1. Governing bodies and local authorities should make every effort to conduct informed parent and staff governor elections in which the expectations and credentials of prospective candidates are made clear. The best governing bodies set out clearly in published recruitment literature:
  • the core functions of the governing body and the role of a governor, and the induction and other training that will be available to new governors to help them fulfil it;
  • the expectations they have of governors for example in relation to the term of office, the frequency of meetings, membership of committees and the willingness to undertake training; and
  • any specific skills or experience that would be desirable in a new governor, such as the willingness to learn or skills that would help the governing body improve its effectiveness and address any specific challenges it may be facing.
  1. Well run elections use secure and reliable voting systems and offer candidates the opportunity to publish a statement of sufficient length to set out:
  • evidence of the extent to which they possess the skills and experience the governing body desires;
  • their commitment to undertake training to acquire or develop the skills to be an effective governor;
  • if seeking re-election, details of their contribution to the work of the governing body during their previous term of office; and
  • how they plan to contribute to the future work of the governing body.
  1. The purpose of governing bodies providing and publishing information about the role of a governor and the skills they ideally require is not to create additional eligibility criteria for potential candidates – which they do not have the power to do. It is for the electorate to elect their choice of candidate(s). The purpose of publishing the information is to simply inform the electorate of the governing bodies’ expectations, circumstances and ideal requirements.
Publication of Governor’s Details and the Register of Interests
  1. Governors hold an important public office and their identity should be known to their school and wider communities. In the interests of transparency, a governing body should publish on its website up-to-date details of its governance arrangements in a readily accessible form**. (NB**Readily accessible means that the information should be on a webpage without the need to download or open a separate document.) This should include:
  • the structure and remit of the governing body and any committees, and the full names of the chair of each;
  • for each governor who has served at any point over the past 12 months:
  • their full names, date of appointment, term of office, date they stepped down (where applicable), who appointed them (in accordance with the governing body’s instrument of government),
  • relevant business and pecuniary interests (as recorded in the register of interests) including:
  • governance roles in other educational institutions;
  • any material interests arising from relationships between governors or relationships between governors and school staff (including spouses, partners and close relatives); and
  • their attendance record at governing body and committee meetings over the last academic year.
  1. Governing bodies should also publish this information for associate members, making clear whether they have voting rights on any of the committees to which they have been appointed.
  1. Governing bodies should make it clear in their code of conduct that this information will be published on their governors and any associate members. Any governor failing to provide information to enable the governing body to fulfil their responsibilities may be in breach of the code of conduct and as a result be bringing the governing body into disrepute. In such cases the governing body should consider suspending the governor.
Annex A: The 2012 Constitution Regulations Explained
  1. Categories of governor (part 2 and schedules 1-3 of the regulations)

This section relates to the appointment/ election of the various categories of governor, and summarises the provision made in the Regulations for each. The categories applicable to each type of school are summarised at Annex B. Information about disqualification is in section C of this guidance.

A.1 Parent governors (regulation 6 and Schedule 1)

Parent governors are elected by other parents at the school. Any parent, or carer, of a registered pupil at the school at the time of election is eligible to stand for election as a parent governor. Parent governors may continue to hold office until the end of their term of office even if their child leaves the school.

Schools must make every reasonable effort to fill parent governor vacancies through elections. However, the Regulations make provision for the governing body to appoint parent governors where:

  • not enough parents stand for election,
  • at least 50% of the registered pupils at the school are boarders and it is not reasonably practicable to elect, or
  • in the case of community special or foundation schools established in a hospital, the governing body judges that an election is impractical.

The method of appointment is set out in paragraphs 10 and 11 of Schedule 1 to the Regulations.

Governing bodies may only appoint as a parent governor a parent who has, in their opinion, the skills to contribute to effective governance and the success of the school.

Elected parent governors cannot be removed from office – even if it becomes apparent that they are unable to develop the skills to contribute to effective governance or behave in a manner befitting the role. Every effort should therefore be made upfront to avoid potential difficulties later by informing prospective candidates of the nature of the role and securing their agreement to a clear set of expectations for behaviour and conduct – as

set out in a code of conduct. The 2012 Roles, Procedures and Allowances regulations set out the basis on which governing bodies may suspend governors, including parent governors.

A.2 Staff governors (regulation 7 and Schedule 2)

Teaching and support staff who, at the time of election, are employed by either the governing body or the local authority to work at the school under a contract of employment, are eligible to be staff governors.

Staff governors are elected by the school staff. They cease to hold office when they cease to work at the school.

It is important that prospective staff governors understand the nature of the role of a governor – and specifically that their role will not be to represent staff, nor to stand alongside the headteacher in being held to account by the governing body, but to operate as part of the governing body to provide strategic leadership and to hold the headteacher to account.

As with elected parent governors, staff governors cannot be removed from office. Clear expectations of role and conduct should therefore be communicated and agreed upfront.

If no candidates are forthcoming, the position on the governing body remains vacant and an election should be held as soon as an eligible candidate is identified.

A.3 The headteacher

The headteacher is a member of the governing body by virtue of their office.

The headteacher may at any time resign as a governor, and withdraw their resignation, in both cases by notifying the clerk in writing.

A.4 Local authority governors (regulation 8)

Local authority governors are nominated by the local authority but appointed by the governing body. The local authority can nominate any eligible person as a local authority governor, but it is for the governing body to decide whether their nominee has the skills to contribute to the effective governance and success of the school and meets any other eligibility criteria they have set. Local authorities should therefore make every effort to understand the governing body’s requirements and identify and nominate suitable candidates.

An individual eligible to be a staff governor at the school may not be appointed as a local authority governor.

A.5 Foundation governors (regulation 9)

Foundation governors are either appointed or take the role by virtue of an office that they hold.

Where appointed, the appointment is made by the person identified in the instrument of government (usually the school’s founding body, church or other organisation). A foundation governor is someone who, in the opinion of the person entitled to appoint them, has the skills to contribute to the effective governance and success of the school, and who is appointed for the purpose of securing:

  • in all cases, that the school’s character (including religious character where it has one) is preserved and developed; and
  • that the school is conducted in accordance with the foundation’s governing documents.

In appointing a foundation governor, the person entitled to make the appointment should seek to understand and take into account the skills and experience the governing body identifies that they need.

If an ex-officio foundation governor is unwilling or unable to act as a governor or has been removed from office under regulation 21(1) then a substitute governor can be appointed.

A.6 Partnership governors (regulation 10 and Schedule 3)

Partnership governors are appointed by the governing body. Individuals are only eligible to be nominated as a partnership governor if the person nominating them believes that they have the skills needed to contribute to the effective governance and success of the school. Likewise the governing body may only appoint a person as a partnership governor if they believe that they have the skills needed to contribute to the effective governance and success of the school.

The number of partnership governors required on the governing body is set out in the instrument of government.

The governing body must first try to appoint partnership governors from those nominated:

  • where the school has a religious character: by the “appropriate diocesan authority”
  • in the case of a Church of England or Roman Catholic school, and
  • by the “appropriate religious body” in any other case; and,
  • where the school does not have a religious character, by the parents of registered pupils at the school and such others in the community as they consider appropriate (for example, staff, community organisations and other local bodies).

Where the governing body cannot fill all the vacant posts from among the nominees, either because there were not enough or because they rejected some of the nominees as ineligible, then the governing body can fill those posts from among persons nominated by governors.

Where the governing body makes an appointment having rejected nominees as ineligible then they must put their decision and reasons not to appoint in writing to:

  • the local authority
  • the person or body who nominated the rejected individual, and
  • the person rejected.
A.7 Co-opted governors (regulation 11)

Co-opted governors are appointed by the governing body. They are people who in the opinion of the governing body have the skills required to contribute to the effective governance and success of the school.

A.8 Associate members (regulation 12)

Associate members are appointed by the governing body to serve on one or more governing body committee. They may also attend full governing body meetings. They are not governors and therefore do not have a vote in governing body decisions, but may be given a vote on decision made by committees to which they are appointed.

Associated members should be appointed because of the specific expertise and experience they can contribute to the effective governance and success of the school. The definition of associate member is wide. Subject to the disqualifications set out in the Regulations, the governing body may appoint a pupil, school staff member, or any other person as an associate member so that they can contribute their specific expertise. This can help to address specific gaps identified in the skills of governing body members, and/or help the governing body respond to particular challenges that they may be facing.

Published: 09/06/2016, by Sam Henson
Last Updated: 09/06/2016, by Sam Henson

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