Education CommitteeWritten evidence submitted by Richard Gold
Executive Summary
1. The current model of governance, with a high level of responsibility for specific aspects of the functioning of the school, is not fit for purpose because:
(a)
(b)
(c)
(d)
(e)
2. There is a need for a governing body with general oversight of the school and the direction in which it is going, ie with a strategic planning function and also to provide a forum for handling of complaints and concerns about the school.
3. The critical friend function of a governing body is important and should be retained.
4. School governors should not be remunerated but the scope of the task should be drastically reduced to make it easier to recruit governors.
Introduction
1. I am a solicitor specialising in education law and as such advise schools and academies on, amongst other things, governance issues. I am also a consultant to SSAT (Specialist Schools and Academies Trust) and to FASNA (Freedom and Autonomy for Schools—National Association) providing training for governing bodies on roles and responsibilities and other specific legal aspects of the governor function. I have been a governor of different maintained schools virtually continuously since 1974 and am currently a foundation governor of a voluntary aided faith primary school. The views that I express are personal ones.
Relevant History
2. The present governance structure in essence derives from Victorian concepts of lay oversight of charitable bodies providing public services, notably in the fields of health and education. The model was apt for relatively simple institutions with only very basic regulatory structures but in my submission it is not a suitable model for the overall management and direction of multi-million pound enterprises that are subject to heavy legislative regulation, government involvement and proper control of public expenditure. It is difficult to think of any other area where such responsibility is placed on groups of people brought together at random, with no quality control over appointment and, in the case of elected governors, no control at all over appointment.
3. The critical turning point came with the introduction of the delegated budget which meant that schools became responsible for financial management that previously had been in the hands of the local authority. That led to uncertainty as to the role of the governing body and undoubtedly led to governors micro-managing in an inappropriate way which confused the functions of governors and headteacher. The role of the governing body was clarified, following a similar investigation by this committee into the role of the headteacher, by The Education (School Government) (Terms of Reference) (England) Regulations 2000 which defined the role of the governing body as “largely” strategic and vested responsibility for internal organisation, management and control of the school, and implementation of the strategic framework, in the headteacher. The regulations also gave statutory recognition to the idea of governors acting as “critical friends” to the headteacher which had gained wide currency without ever being clearly defined. It is noteworthy, though, that the critical friend function as specified in the legislation is one to be discharged by the whole governing body rather than by individual governors. How this is to be done as a corporate expression can give rise to difficulties in practice although the concept is a good one and should not be lost.
Discussion
4. If the governing body function were restricted to the two elements of strategic planning and critical friend it would probably remain a viable model. However, they also have overall responsibility for monitoring and evaluating the performance of the school and other specific functions that can only be discharged at governor level, such as ultimate responsibility for financial performance, staffing matters, handling admissions—why, incidentally, does each and every admission decision made by a voluntary aided or foundation school or by an academy have to be taken by governors rather than the headteacher?—reviewing pupil exclusions, special educational needs and child protection. Most require a degree of technical understanding and skill which is likely to be outside the competence of many governing bodies, critically in those places that may have greatest social need such as in areas of high deprivation and where governor recruitment may be difficult.
5. The case for governing bodies in their present form rests with the concept of public and community accountability. Schools belong to their communities and it is right that the communities should be involved in how they function. However, it is difficult to see how governing bodies can be said to be truly accountable to their communities in the present climate of fragmentation of local authorities and the development of the academy model. It is also difficult to see how the effectiveness of governing bodies can be assessed, at least under the present Ofsted inspection regime. Unlike teachers, no-one observes a governing body in action. Ofsted assessments are based on a review of governor papers and interviews with a few governors who may well not be representative, given the lack of notice of inspections. A competent Clerk will ensure that the minutes of each meeting are written with Ofsted in mind. They will not convey the “feel” of the meeting itself or the quality (or lack of quality) of the debate nor will they show whether in truth governors are simply accepting what they are told with only notional challenge. Anyway, even if governors do challenge the headteacher they may well not have the skills to evaluate what they are being told or the skills to evaluate any independent data provided to them. Furthermore, any action that is required in the light of any appropriate challenge requires professional skills to determine and to implement. Governors may perceive that there are problems but they are not necessarily in a position to decide on or oversee remedies. When they take professional advice they are frequently not in a position to evaluate that advice even though the governing body has the responsibility for reaching a correct or reasonable solution.
6. I personally doubt that governing bodies actually make the difference between a successful and an unsuccessful school. An effective headteacher will lead a school well and enable it to thrive irrespective of the quality of the governing body. No capable governing body will overcome the handicap of an ineffective headteacher beyond securing a replacement. A capable governing body is a major support, though, to an effective headteacher and it would be unfortunate if radical change to governance structures led to this being lost.
7. One consequence of the weight of responsibility placed on governing bodies is that, despite the clear separation of functions in the Terms of Reference Regulations (which do not apply to academies anyway and which I deal with below), governors can be drawn into excessive involvement in day to day issues. That in turn leads to a dilution of the accountability of the headteacher who may be able to escape responsibility on the basis that governors through their involvement have taken the decision-making powers away from the headteacher. It is an understandable reaction but a wrong one. A further consequence is the fear that I hear frequently expressed that governors may be personally liable when things go wrong. I believe that fear, misconceived though it is, can be a barrier to recruitment.
8. Even when governors stick to their proper function the workload and volume of paper is excessive. Policy changes to reduce this, though, have unintended consequences. DfE guidance in many areas has been drastically slimmed-down so that in the main it guides on process rather than prescribing action. That is for laudable reasons but it has the effect of leaving schools—governors and headteachers—without indicators of good practice so that they have to reach their own conclusions. It adds to the weight of responsibility and, potentially, to wheels being re-invented.
9. All of this creates its own barrier to recruitment not least through the sheer time that a conscientious governor has to spend on school matters. From my experience this is particularly true at primary level and for small schools where the resources available do not allow for a good quality support infrastructure in the shape of, for example, business managers and HR specialists. Governors become additional resources for hard-pressed headteachers and for a governor with specific skills this can be a heavy demand. I spend probably half a day a week helping my headteacher with school issues that have a legal component quite apart from my six governing body meetings a year and regular meetings of the two committees that I sit on. Larger schools will be able to afford to take formal legal or other relevant advice but that generally is unaffordable for small schools and increasingly the local authority does not have the resource to provide good quality support. I believe, from my actual observation of governing bodies that I have trained in many different parts of the country including disadvantaged areas, that this causes a bias towards elderly, semi-retired or retired, middle-class governors who add significant value but may well not be truly representative of the school community.
10. There is an additional area of concern that relates to the relationship between the headteacher and chair of governors and the workload that the chair faces. The relationship is a difficult one to get right. It needs to be close but if it is too close there can be a lack of challenge—it is all too cosy. If it is at arm’s-length the headteacher will be inhibited in discussing major issues and the chair may be equally inhibited in suggesting change. The inherent danger so far as the functioning of the governing body is concerned is what I describe as the hour-glass syndrome. The school is the top half of the glass and the governing body is the lower half. All the sand—ie information—flowing from the school to the governing body goes through the constricted neck which is the headteacher and chair of governors. Unless headteacher and chair are scrupulous or the governing body is adept at seeking and interpreting independent data, there is a clear risk that the governing body will only see and hear what the chair and headteacher choose. There is no clear answer to this beyond securing good quality governors capable of independent thought.
11. The composition of governing bodies has recently been reviewed and a new, less prescriptive, model was legislated for. The new framework could lead to more effective governing bodies by potentially changing the balance of representation. The existing model for maintained schools—academies are different—provide for one-third of the governing body to be parents, either by election or (in the case of voluntary aided schools) a mixture of election and appointment. Parental involvement in governance is to be encouraged but one-third is too high a proportion. In my experience, apart from the lack of any form of control mentioned previously over who is elected, parents can find it difficult to look beyond the interests of their children and the children currently in the school and take a strategic view. The opportunity in the new framework to change the balance is good. Conversely, though, the restriction in the new framework (which may be an unintended consequence of the way the relevant regulations were drafted) to a single elected staff governor seems to me counter-productive.
12. Two further points arise in relation to the new framework. The first is that there is no compulsion on existing governing bodies to adopt it. The second is that, whilst the clear intention is to reduce the overall size of governing bodies, the workload imposed by the current level of responsibility is such that a governing body of less than, say, 14 governors will be hard-pressed to function effectively without making even greater demands on governor time. Smaller governing bodies are desirable—it is impossible to get good quality discussion or detailed decisions in a meeting of 20 people—but to achieve this and have effective governance the scope of responsibility needs to be materially reduced.
13. There is certainly a continuing need for governing bodies. It would be wrong for schools to be subject only to local or central government scrutiny. The issue to my mind is the scope and extent of their functions. I consider, as suggested above, that these lie in strategic planning—possibly in an advisory rather than determinative capacity—and acting as critical friend. They also have a role to play in reflecting community views and values—which should feed into strategic planning—and in resolving issues with parents and others that cannot be resolved by the headteacher and staff. In this context, the governing body can act in effect as a safety valve.
Academies
14. The foregoing relates to maintained schools. Similar considerations apply to academies but a distinction needs to be draw between a multiple academy trust (MAT), which have a small governing body/board of directors and local governing bodies (LGBs), and a single or stand-alone academy. A further distinction needs to be drawn between sponsored single academies and single academies converted from maintained schools.
15. MATs in some ways represent a good governance structure in that the academy trust is separated from the individual academies and is able to focus on overall performance and strategy. The weakness lies in the fact that the LGBs function as committees of the MAT and have to operate within the scope of delegated powers. There is no single model for delegation so in some instances there is a high degree of delegation so that the LGB has a significant degree of autonomy and in other instances key decisions relating to individual academies are retained at Board level. Either way, my observations relating to the degree of responsibility and consequent workload on volunteer governors apply here as they do to maintained schools with the (important) qualification that a MAT is likely to have sufficient resources to maintain a high level and effective professional infrastructure that can make detailed governor involvement less necessary. The other weakness, which can also be regarded as a strength depending on one’s perspective, is that being a member of a MAT reduces the degree of autonomy for the individual academy.
16. Sponsor academies in my experience tend to have small governing bodies and I have encountered governors appointed by the sponsor or sponsors who appear not to have great enthusiasm for the task. Governor appointments can be made from within the sponsor organisation and people serve from their own career motive rather than with the interests of the academy at heart. I suspect that many sponsor academy governing bodies are not effective in strategic planning or in the monitoring and evaluating role.
17. Convertor academies, at least those that I have been involved in taking through the process, tend to have governing bodies that reflect that of the predecessor school in terms of individuals—in the interests of continuity—but with a formal governance structure that allows for changes in the balance of representation, very much in line with the new framework referred to above. They will tend to function in much the same way as previously and are subject to the comments already made. There is, though, one important difference between maintained schools and academies of all kinds, namely that academy governing bodies do not have the statutory division of functions that apply under the Terms of Reference Regulations. It is up to each governing body to determine the extent to which responsibility for each and every function of the running of the academy be delegated to committees or individuals including the principal/headteacher. I am aware that this comes about because of concerns from the Charity Commission about the fettering of trustee discretion but it is to my mind a governance weakness and I consider that there should be statutory guidance from the Secretary of State to the effect that academy trusts should, in the absence of factors indicating otherwise, secure a division of functions that mirror the maintained sector.
Governor Remuneration
18. I have considered the question of remuneration of governors. I am not in favour of this unless there is a radical change in structures so that instead of volunteers governing bodies were made up of professionals. I would be comfortable with that change. Whilst I consider the burdens currently placed on governors to be excessive I think there is an important role for the unpaid, and therefore disinterested, governor with a function limited to strategic planning and critical friend-type support to the headteacher—which otherwise would be a very lonely job.
December 2012