Education CommitteeWritten evidence submitted by NASUWT

The NASUWT’s submission sets out the Union’s views on the key issues identified by the Committee in respect of the role of School Governing Bodies.

The NASUWT is the largest teachers’ union in the UK, with over 280,000 serving teacher and school leader members.

Executive Summary

The expansion in the number of academies and free schools means that governance in schools is increasingly becoming a “secret garden” subject to little or no meaningful Parliamentary or stakeholder oversight or involvement.

This set of circumstances arises from the fact that governance arrangements in academies and free schools are established on a contractual rather than statutory basis, given that the requirements on academies and free schools in this respect derive from funding agreements and associated Articles of Association.

The effect of these arrangements is that the terms on which academies and free schools are governed are established and maintained through a process to which only the Secretary of State and the relevant academy or free school Trust are parties with effective contractual rights.

In principle, school governing bodies should be well placed to provide effective support structures for schools but, in practice, they often have difficulty in carrying out their key responsibilities.

Many governing bodies continue to experience difficulties in maintaining or achieving the requisite number of school governors. This has proved to be the case with particular regard to parent representatives and those representing the relevant local authority.

Many difficulties experienced in relation to school governance derive from a lack of clarity about the respective roles and responsibilities of headteachers, governors and the local authority. This can lead either to conflict between headteachers and governors or inadequate strategic leadership on the part of governing bodies.

The effectiveness of governance is hindered by the fact that there is no effective national programme of mandatory training that governors are required to undertake and that the levels of support available to them are variable in terms of their quality and availability.

Introduction

1. The NASUWT welcomes the opportunity to submit evidence to the House of Commons Education Select Committee Inquiry into the Role of Governing Bodies.

2. The issues identified as significant by the Committee invite reflection on the development and implementation of policy relating to the:

implications of the Coalition Government’s academies and free schools programmes on school governance arrangements;

composition of governing bodies;

recruitment and retention of school governors;

exercise of the role and responsibilities of governing bodies; and

training and support available to governors to assist them in undertaking their responsibilities.

3. These themes are considered in further detail below.

The Implications of the Academies and Free Schools Programmes for School Governance

4. Since taking office, the Coalition Government has set out a markedly different agenda for state education from its predecessor administration in relation to the governance arrangements of state-funded schools. Specifically, the ongoing commitment of Ministers to expand significantly the number of academies and free schools needs to be considered in terms of the impact of this policy on the ways in which governing bodies can be held to effective account for their activities, the transparency of school governance arrangements and the extent to which legitimate stakeholder constituencies are given meaningful opportunities to participate in these arrangements.

5. Notwithstanding these concerns, the NASUWT is clear that the established model of governance in the maintained school sector does not operate consistently to ensure that governing bodies are able to discharge their key responsibilities effectively. In particular, the Union is concerned that the weakening of the role of local authorities and the increased powers being given to headteachers is resulting in a significant displacement of governance across the system. The NASUWT’s concerns in this regard are considered in more detail elsewhere in this evidence.

6. However, in this context, it is important to note that governance in maintained schools is underpinned by statute and regulation. This provides a clear mechanism by which Parliament can not only take steps to ensure that governance arrangements in these settings are established on an effective basis but also to secure the active participation of key stakeholder groups in these arrangements. The statutory framework for governance in the maintained sector also provides the means by which Parliament can act to ensure that governing bodies can be held to public account for their activities.

7. However, the framework for governance in academies and free schools denies to Parliament the opportunity to set the legal parameters within which governance is undertaken in academies and free schools. This set of circumstances arises from the fact that governance arrangements in these settings are established on a contractual rather than statutory basis given that the requirements on academies and free schools in this respect are determined through funding agreements and associated Articles of Association.

8. The effect of these arrangements is that the terms on which academies and free schools are governed are established and maintained through a process to which only the Secretary of State and the relevant academy or free school Trust are parties with effective contractual rights. Parliament is therefore excluded entirely from the determination of these arrangements, undermining the degree of democratic scrutiny and oversight to which they are subject.

9. The contractual basis upon which governance in academies and free schools is established also has broader implications for the ability of other legitimate stakeholders, including parents and members of staff, to challenge non-compliance with expectations in respect of governance set out in funding agreements and Articles of Association.

10. As stakeholders are not parties to these contracts, they face significant obstacles to securing enforcement of contractual terms in which they might have a reasonable interest through use of the Contracts (Rights of Third Parties) Act 1999.1 While third parties might seek to use judicial review to enforce the terms of funding agreements and Articles of Association, it is worth noting in this context the refusal of Ministers to agree to the incorporation of a specific provision in the Academies Act 2010 confirming the ability of third parties to make use of judicial review to secure rights that the DfE continues to assert, clearly incorrectly in practice, are confirmed by academy and free school funding agreements.2

11. The Committee will note the provisions established by the DfE through which stakeholders can pursue complaints against academies and free schools in respect of governance arrangements by application to the Education Funding Agency (EFA).3 However, it is important to note the effectiveness of the EFA complaints process from a stakeholder perspective is compromised to a significant extent given that it is not underpinned by statute. In any event, the EFA’s powers in this regard are limited to investigation of the degree to which academies and free schools have complied with their own complaints processes rather than with a common complaints framework underpinned by statute.

12. With specific regard to the composition and function of governing bodies in academies and free schools, it is important to note that, with the exception of parent governors and the headteacher, the power to provide for different categories of governor on governing bodies and to appoint a significant proportion of the governing body rests with members of the relevant academy or free school Trust board. While the NASUWT is clear that some Trusts may use these powers to retain a open and inclusive stakeholder model of governance, it is also apparent that these arrangements create circumstances within which highly inappropriate practices and procedures can become established.

13. Of specific concern in this regard is the fact that the members of Trust boards are appointed for terms of no fixed duration. Given that Trust board members have considerable discretion to appoint and dismiss governors, these arrangements cannot be regarded as sufficiently transparent to ensure that Trust board members can be held accountable to stakeholders for their actions as they relate to the governance of the schools with which they are associated.

14. In relation to the composition of the governing bodies of academies and free schools, it is important to recognise that the Articles of Association place no requirements on Trusts to ensure that key stakeholder groups, including staff, local authorities and other community representatives, are able to participate in governance arrangements. The Committee will also want to note that while the Articles provide for the election of parental representatives, no framework has been established to ensure that these elections are conducted in a way that meets basic tests of transparency and openness.

15. Without a significant change in Government policy in this area, it is therefore evident that governance in schools will increasingly become a “secret garden”, subject to little or no meaningful Parliamentary or stakeholder oversight or involvement.

The Composition of Governing Bodies

16. The experience, time or desire to be able to undertake the full range of responsibilities associated with effective, transparent and fully representative school governance often place excessive demands on those undertaking the role of school governor. In this context, it is important to note that no particular qualifications or experience are necessary to serve as a school governor.

17. In principle, a school governing body should be well placed to provide an effective support structure for schools but, in practice, they often have difficulty in carrying out key responsibilities including the planning of schools’ future strategic direction, selection of headteachers and other senior staff and accountability for school performance to parents and the wider community.

18. To make an effective contribution to the success of the schools with which they are associated, it is evident that all governing bodies need to have the necessary expertise, shared goals and motivation and substantial amounts of time to undertake their responsibilities effectively. It is clear that this is not always the case at present.

19. There is also imbalance in the composition of many governing bodies. This is of particular significance in the context of the requirement upon governors to discharge extensive personnel and curriculum responsibilities. Governing bodies that lack an appropriate balance of representation are often unrepresentative of both the local and wider community. They can, for example, experience difficulties in addressing equality issues and the contribution effective whole-school approaches to equality and diversity can make to school improvement and raising standards.

20. Proposals, advanced particularly during the passage of the Education Act 2011, to replace the stakeholder model with one in which majority membership of governing bodies would consist of individuals with perceived expertise in areas of school governance, would represent an inappropriate means of addressing these concerns, given the marginalisation of parent, staff and community involvement they would represent. With particular regard to the school workforce, the Union is clear that effective representation of the interests and perspectives of employees on governing bodies is not only an essential means by which fair and equitable working practices can be established and sustained by is also critical to ensuring that decisions made by governors can benefit from the expertise and experience of the school workforce.

21. The Committee will note that the previous Government established a Ministerial Working Group on School Governance, comprised of a wide range of stakeholders, including the NASUWT, to examine these and other critical issues in relation to the future of school governance. The Group had begun to make genuine progress in exploring these issues and developing approaches to securing effective ways forward in respect of governing body composition. It is therefore to be regretted that the Coalition Government has not taken this work forward and that, as a result, governing body composition remains an issue of significant concern.

Recruitment and Retention

22. Many governing bodies continue to experience difficulties in maintaining or achieving the requisite number of school governors. This has proved to be the case with particular regard to parent representatives and those representing the relevant local authority. Local authority governors, who have a critical responsibility for representing the interests of the local community, are restricted in terms of the number of governing bodies on which they can serve and all governors find increasing demands on their time difficult to meet.

23. Recruitment and retention are fundamental to the effective operation of governing bodies. The adverse consequences of a failure to attract sufficient governors include inquorate governing body meetings unable to make key decisions and to function effectively as well as a lack of competition for vacancies, which provides opportunities for particularly unrepresentative interest groups to dominate the work of the governing body.

24. With specific regard to the interest of the Committee on the payment of governors as a means of addressing recruitment and retention, the NASUWT believes that considerable further investigation is required in order ascertain whether the introduction of payments would generate tangible and sustainable benefits in terms of the effectiveness of governing bodies. These considerations would need to include: the extent to which payments would incentivise suitable individuals to decide to become governors and to sustain their involvement with school governance over a reasonable period of time; the levels of payment required to have a meaningful impact in this regard; how arrangements for payments would be undertaken on a transparent, consistent and equitable basis across the education system; and an assessment of the opportunity cost of allocating available resources to systems of payment in terms of the alternative uses to which these resources might otherwise be deployed.

25. The Ministerial Working Group on School Governance found that issues related to recruitment and retention are complex and that further consideration and investigation of the barriers to enhancing rates of recruitment and retention is required before meaningful solutions can be developed and implemented. The failure of the Coalition Government to continue the work commenced in this area by the Working Group is therefore profoundly disappointing.

The Exercise of the Role and Responsibilities of Governing Bodies

26. Lack of time to devote to understanding and discharging their responsibilities, combined with a lack of confidence, expertise or experience, often results in over-reliance by governors on the headteacher or the headteacher and the chair of governors. This, in many schools, effectively concentrates key decision-making powers into the hands of one or two individuals. Developments in central Government policy, particularly in relation to the remuneration and performance management of teachers, have sought to give increased executive power to headteachers, marginalising further the legitimate role and function of school governing bodies.

27. Conversely, there have been well-documented cases of governing bodies, dominated by groups with specific agendas, ignoring the professional advice of the headteacher and the local authority and causing serious disruption to the life of the school for which they are responsible. It is clear that too many governing bodies demonstrate behaviour that falls into one of these two broad categories.

28. These difficulties are increased by a lack of clarity about the respective roles and responsibilities of headteachers, governors and the local authority. Many governors are unaware of the division of responsibility between strategic management and day-to-day management. This can lead to conflict between heads and governors.

29. In respect of pay, governing bodies have significant discretionary powers. Evidence continues to exist that governing bodies have not always used these powers well. Examples of this include the extensive use of discretionary power in relation to headteachers’ pay and the performance management of headteachers. In this regard, the action of governing bodies leads to a high degree of variability in headteacher pay between comparable schools without any clear objective justification and thereby undermines their ability to ensure consistency in decisions regarding the ways in which headteachers are paid or performance managed.

30. In relation to behaviour management, governing bodies are under a clear legal obligation to ensure that an effective whole-school behaviour management policy is in place. However, based on its extensive experience of representing members when these arrangements break down, the NASUWT has found that governing bodies are either unaware of these issues or are not able or willing to ensure that purposeful steps are taken to address concerns.

31. More broadly, it should be noted that in maintained schools, governing bodies have responsibility for all staffing matters. However, an inherent weakness in the current system is that governors often lack the necessary skills and experience required to deal with complex employment issues and fail, in many circumstances, to heed the advice of their local authority. Governing bodies have also used scarce school resources to purchase inappropriate external personnel advice.

Training and Support

32. Much emphasis has, understandably, been placed on seeking to resolve issues relating to the effectiveness of governing bodies through the provision of additional training and support.

33. However, the NASUWT is clear that this approach is hindered by the fact that there is no effective national programme of mandatory training that governors are required to undertake. A particular shortcoming of current approaches to the training of governors is that participation in training and development activities is voluntary. Governors are free to choose whether or not to attend and governing bodies make the decision whether to purchase any training at all. It has been suggested that it would be difficult to enforce mandatory training on school governors in light of their status as volunteers. As a result, approaches to improving the quality of school governance through the provision of more training tend to be, at best, variable in terms of their impact on the capacity and confidence of governing bodies.

34. The provision of high quality external support and advice, crucial to securing effective governance, is too often inconsistent in terms of its quality and availability. Identifying suitable sources of external advice can be challenging for governing bodies and there are many private sector organisations not subject to any meaningful quality assurance process seeking to sell services of this nature to schools. Governors have little or no independent advice on evaluating the range of services available to them in terms of value for money or potential effectiveness.

35. The role of governing body clerks is a particularly important consideration in this regard. Currently the status, training and functions of clerks is left to a significant extent to the discretion of the governing bodies they serve. However, the NASUWT is clear that there would be considerable merit in relation to enhancing governor effectiveness in developing the role of clerk so that it resembles more closely for all schools that of university registrars or a company secretaries, in which clerks are able to provide professional and competent legal and technical advice to the governing body and to do so on an impartial basis. The impartiality of clerks in this context might be secured by ensuring that they are contracted to provide services to schools rather than being employed directly. The role of local authorities in the provision of clerking services on this basis could be particularly worthy of further investigation.

36. The NASUWT is clear that local authorities remain the best available source of advice and guidance to governing bodies. However, their continued ability to undertake this function is at significant risk from ongoing reductions in central Government financial support and the substantially increased delegation to schools of control over funding taken forward by the Coalition Government. In many instances, local authorities rely on schools purchasing their services and, because of the insecurity for local authorities associated with this, often reduce the support service to a level below that required to offer good quality advice and support to governing bodies. Financial dependency also appears to have bred a reluctance on the part of some local authorities to adopt the much needed critical friend approach in case governors find advice unpalatable and, as a consequence, discontinue the purchase of their services.

January 2013