Governor Roles and Responsibilities
Our Governing Body is responsible for determining the aims and overall conduct of the school. Our Chair of Governors, Mr Stuart Westley, looks at the roles and responsibilities of governors of independent schools.
Governor roles and responsibilities
I felt it may be helpful to consider the roles and responsibilities of governors of independent schools. At the outset however, I might share with you that one experienced governor who had enjoyed a very successful professional career seldom missed an opportunity to announce that ‘Governors Operate in the Shadows’.
He meant of course that schools are primarily about the people who teach and learn in them full time, rather than about those who visit for say a couple of hours a few times each term and that the latter should not overestimate their importance. There is abundant evidence that the primary factor in determining the success of any school is the quality of its executive leadership, usually nowadays provided by a team of people, rather than the quality, or otherwise, of its non-executive governors. So, this is a topic which might be approached with some humility, not with assumption that it’s one guaranteed to attract rivetted attention.
Independent schools as charitable organisations
All the better-known independent schools are represented within the Independent Schools Council and are known collectively as ‘Association Schools’. Additionally, there are some 1000 other independent schools, ‘Non-Association Schools', which are generally small and not well known.
Association schools are remarkably diverse on every criterion including size. With a very few exceptions, the schools are either privately owned (proprietorial) or they are charities in the approximate ratio 1:4. Many schools which are now charities, including St Mary’s, began life privately owned. That transfer from proprietorial to charity trust continues to this day though the rate is currently slow.
In most of the schools which are charities the trustees of the charity are the governors of the school, as at St Mary’s. From that arises the critical requirement that while providing the overall strategic, as opposed to operational, leadership, which all schools need, governors must, at all times and in all circumstances, act in accordance with charity law. That sounds daunting and it can be.
There are strategies which reduce the risk of serious error, including, as a worst case, a volunteer governor/trustee incurring personal liability, though I should emphasise such an event is rare. Sources of help include willingness to undertake training, Charity Commission guidance, understanding the need and expectation to take external advice as necessary, having a lawyer on the Board and a general willingness to seek and to learn from other schools’ experience.
Charity trustees are required only ever to act in the interest of the Charity/School, to exercise independent judgement, to understand and practise the discipline of collective responsibility and never to benefit personally from their trusteeship. To do otherwise is a breach of trust.
Governing in an independent school
While governing an independent school has much in common with governing a maintained school, there are important differences which arise through the responsibilities of charity trustees which impact on the former. Two which might merit attention are representation and confidentiality. Fundamental to the operation of any charity is that the trustees are (collectively) uniquely responsible for the conduct of the charity. The buck stops there, every time. Thus, it is not possible for a trustee to be a representative of another body or, even worse, a delegate of one!
An independent school governor may be a parent, many are, but they are there on exactly the same terms as other governors, with the same responsibility to act only in the interest of the school. That independence would be fundamentally compromised if a trustee were in any way accountable to another body or group. In maintained schools, which are publicly funded and not, generally, charities, it is standard practice that some governors are present as delegates, elected by either parents or staff. Understanding the distinction in the constitution of independent and maintained schools is vital.
Because trustees bear the entire responsibility for the charity, it is also vital that there is the opportunity for full, unfettered discussion at trustees’ meetings at which the charity’s strategy is determined, with no prospect of attribution of individuals’ views. Publication of minutes of meetings would inhibit full and thorough discussion. It is for that reason that there is no requirement on charity trustees to publish minutes and to do so is widely regarded as unwise. In an age in which there is an increasing expectation of openness of communication, that is sometimes not an easy position to justify. Instances have arisen when charitable independent schools have been asked to publish minutes of meetings, but the challenge should be resisted.
Many charities now recognise that some stakeholders, including, in the case of schools, parents and alumnae, will have an entirely legitimate interest in the broad strategy of the charity. Providing a prompt account of the strategic decision taken by charity trustees for the benefit of interested stakeholders is increasingly seen as good practice. It is the conclusions which the trustees reached which should be reported, not the discussions which preceded them and certainly not who said what. In maintained schools, by contrast, there is a requirement that minutes of governing body meeting are published, other than the parts deemed sensitive. Also implicit in the understanding of good governance, in addition to the expectation that trustees contribute frankly to meetings, is the requirement that they loyally support the majority decision, the concept of collective responsibility.
Regulations for Governance
In considering the responsibilities of governors, the regulations which impact upon them is also central. There are three sources of regulation. The Department for Education regulates all schools, including independent schools, and does so through the Independent Schools Standards Regulations and statutory guidance made thereunder. The Charity Commission regulates all charities, some 160,000 in England and Wales, of which approximately 1000 (0.5%) are fee charging independent schools. Increasingly, charitable schools now seek incorporation, thereby becoming both companies and charities. Companies House regulates companies. Generally, the regulation of charities includes and extends beyond regulation of companies so in practice the influence and expectations of of the Charity Commission exceed those of Companies House. Companies House is therefore usually regarded as the least relevant of the three regulators.
The nature of regulation exercised by the Department and the Charity Commission differs markedly, as does the way in which they approach enforcement. The expectations of the Charity Commission are set out in a series of guidance documents which express general advice concerning the way charities should be run, with considerable emphasis placed in recent years on protecting vulnerable people, illustrated by some high-profile investigations into well known charities. The extensive but quite accessible guidance of the Commission provides ‘must’ and ‘should’ statements, reflecting what are regarded as legal requirements on the one hand and good practice on the other. A recent note explained that ‘should’ statements were not to be interpreted as optional and that trustees would be expected to understand and to follow them unless they could provide a compelling reason for not doing so. While the Charity Commission has conducted investigations into charitable schools infrequently in recent years, when schools have been investigated considerable, generally unwelcome, publicity has arisen. In short, the authority of the Charity Commission is not to be underestimated.
The Department for Education’s regulations are primarily concerned with safeguarding vulnerable people though they also include requirements concerning the manner in which complaints are handled. Many of the regulations are very specific, those relating to the single central register (of all employees and some volunteers) and recruitment of staff are examples. Schools’ compliance with the Department’s regulation is assessed regularly at every inspection; they occur at three yearly intervals and, in some circumstances, more frequently.
Ensuring compliance with regulation and with the guidance of the Charity Commission is the responsibility of Governors, the ‘Proprietor’ in the language used by the DfE. In practice it falls to the senior staff to ensure the systems and checks are in place, with the Governing Body providing effective oversight of the process. Clearly, in order to provide that effective oversight, there needs to be a thorough understanding of the requirements within a governing body.
This is one of several areas in which it is wise to encourage those with background experience to take the lead while remaining ever conscious that responsibility lies with the whole governing body, never with a group within it. Formal responsibility falling equally on all is the main reason why it is increasingly seen as unwise to allow a group of ‘senior’ governors to form within a board with a better approach being to distribute responsibility widely and as equally as possible.
This approach to ensuring regulatory compliance illustrates the important and, in some ways subtle, distinction between governance and management. This is an issue which has caused considerable strife in the past and continues to do so today, with many heads complaining, rightly or wrongly, that governors too frequently involve themselves in operational detail and, in so doing, unnecessarily complicate running the school.
Essentially the distinction seems simple. The Governors’ role is to establish the overall strategy in conjunction with the head and senior staff. Once the overall strategy is clearly established, the senior staff implement it, reporting to governors on that implementation, with governors providing support and challenge in judicious proportion.
It is not difficult to see how things might go wrong. School are complicated places. Achieving a desired strategic objective might well involve very careful planning, extensive consultation and patience, in addition to strong, determined executive leadership. The views of non-executive governors, generally unlikely to grasp every aspect of a key decision, are unlikely to be helpful, particularly if several of them offer conflicting views.
Governors, however, do need to have a thorough understanding of the way the school is run both in order to establish a realistic and appropriate strategy from the outset and to monitor the effectiveness of its implementation. The mantra: ‘Eyes on, Hands off’ has considerable force!
Stuart Westley
Chair of Governors
Our Governors
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Image credit: Charlotte, P. Year 11