Governance Law and Procedure
Background on Legislation
Governing Boards of schools and academies must follow legislation set by the Government. These can be documented in the form of statutory instruments. These allow the provisions of an Act of Parliament for example, The Education Act, to be brought into force or altered without Parliament having to a pass a new Act. They can also be referred to as secondary, delegated or subordinate legislation. An Act will often contain a broad framework and statutory instruments are used to provide the detail that would be too complex to include in the Act itself. Statutory Instruments can also be used to amend, update or enforce primary legislation.
There is a whole raft of legislation and Statutory Instruments which have an impact on schools and academies covering many aspects including, educational provision, staffing, governance etc.
Many Statutory Instrument have a direct bearing on the governance of schools and academies; however, there are two key statutory instruments for maintained schools which should be referred to that prescribe the composition of governing boards and the procedures that they must follow in relation to their operation. These are the School Governance (Roles, Procedures and Allowances) Regulations and the School Governance (Constitution) Regulations. Academies do not follow these regulations and instead have their own Articles of Association which vary from each Academy.
School Governance (Roles, Procedures and Allowances) Regulations
The regulations make provision for the core functions and procedures for governing boards of maintained schools, and for the payment of allowances for out-of-pocket expenses incurred by school governors in connection with their duties. Information on the establishment and functions of committees are also included within these regulations.
School Governance (Constitution) Regulations
The School Governance Constitution Regulations 2012 and subsequent amendments stipulate the composition of maintained governing boards and how their membership should be reflected. Information on qualifications, disqualifications, tenures of office and the duty to make and review the instrument of government is also contained within these Regulations.
Any changes to constitution or variations to the instrument of government must be discussed at a full governing board meeting, where notice has been given. The clerk to governors will be able to provide advice and support on the matter in order for governors to ensure that the process is carried out correctly and in line with regulation. Following approval by the full governing board; local authority approval should be sought. Foundation and voluntary schools should consult with the appropriate diocese, foundation trust or religious body before submitting their request for approval to the local authority.
The National Archives on behalf of HM Government maintain the full text of all published Statutory Instruments. This site can be assessed using the following link.
The Governance Handbook (January 2017)
The Governance Handbook, which is published by the Department for Education, provides information about the role and legal duties of governors of maintained school and trustees of academy trusts and multi-academy trusts. The Handbook replaces the previous Governors' Handbook and ‘Governors Guide to the Law.’
The Handbook details the core role and functions of governing boards and academy and multi-academy trusts and but also summarises their specific legal duties with further reading signposted within each section. Links have been provided to relevant regulations, guidance and resources to assist governors and trustees further. A copy of the Governance Handbook may be downloaded below.