The 1988 Education Act gave school governors sweeping new powers over schools - but it did so without ensuring that they exercise those powers responsibly. Little or nothing has been done to improve selection procedures or training for governors, and their performance is not adequately monitored.
Neither the Secretary of State for Education nor the local education authority has the powers to affect the performance of governors to enable effective action to be taken before a school goes badly astray. All of which raises the question, "are governors ungovernable?" According to Department for Education and Employment guidance, governors are not expected to take detailed decisions about the day-to-day running of the school. This is the role for the headteacher. Nevertheless, the DFEE says that governors should be involved in all the main aspects of school life, as it is they who must answer to parents and the local education authority for the running of the school.
The governing body, made up of amateurs, is thus sandwiched between the professionals - the headteacher and the local education authority. Unless all those involved understand the nature and limitations of their roles, there is plenty of room for conflict.
The 1988 Act delegated the school's budget to the governing body. Yet governors do not always have relevant experience of education or of dealing with large budgets. Many have no training. Local authorities should offer the training they think necessary - but governors are not obliged to take it up.
There is no provision in the legislation for governors, other than those appointed by the local authority who are in the minority, to be removed because they are incompetent. Once a governor is appointed to the governing body, he or she remains in post until the termination of his or her period of tenure.
So it is crucial that governing bodies are properly monitored to ensure that they are exercising their powers properly and providing value for money to the pupils, their parents, the local education authority and the taxpayer.
There are six potential monitors: the local authority; the Secretary of State; the Office for Standards in Education (OFSTED), the local authority Ombudsman, the district auditor and the courts. Part of OFSTED's role is to look at the management of the school, but only in a failing school is there a statutory requirement for governors or the local authority to take any action. The Ombudsman has powers to investigate a complaint of maladministration by the governing body. The district auditor can investigate any misuse of public money. The courts can exercise their supervisory jurisdiction by way of judicial review.
But all of these powers are exercised after the event - so they do not amount to an effective, quick and inexpensive way of holding the governing body to account.
The 1944 Education Act imposes a duty on local education authorities to secure primary and secondary schooling suitable for children of statutory school age. But the delivery of that education is no longer in the direct control of the local authority, since it has been delegated through the budget to the governing body.
It seems that local authorities have no inherent power to monitor the provision of education within their area, even if a governing body's poor performance means that the authority is failing in its duty. The only remedy available to the authority in such circumstances is to make a complaint to the Secretary of State or wait until the governing body's actions allow the authority to withdraw financial delegation under section 37 of the 1988 Act.
To do the latter, the governing body must be in serious breach of the local authorities' rules or guilty of major financial mismanagement. It is only when matters become dire - for example, a failure to set a budget for the forthcoming year or a persistent failure to provide certain facilities or materials that are required for the national curriculum - that the authority would have the evidence on whichto base a withdrawal of delegation.
The authority is empowered to advise governors. But they are not obliged to accept the advice; their only obligation is to behave in a way that is reasonable and does not render them capable of challenge by way of judicial review.
Under the 1944 Act, if the Secretary of State for Education is satisfied that "any local education authority or the governors of any county or voluntary school have acted or are proposing to act unreasonably", he or she can take over the authority's powers or those of the governors. The Secretary of State also acts as the appeal body if an authority suspends the budget of a governing body.
These powers deal only with extreme cases, however. They are not an effective tool for ensuring that schools provide high-quality education, as the Berkshire case (below) shows. The present system does not provide sufficient checks and balances for proper accountability of governing bodies.
Serious problems are not addressed before damage is done to education at a school that is underperforming. There needs to be some mechanism to allow problems to be addressed earlier. The obvious body to do this is the local education authority, which has the expertise, local knowledge and accountability.
It is time that the role of a governor was seen as a civic duty and treated as seriously as that of justices of the peace. Children are the future, and provision of education is a fundamental right.
Like JPs, governors should be obliged to undertake regular compulsory training to ensure that they not only understand their function but also those of the local authority, staff and other schools.
Finally, their performance should be subject to appraisal, which would allow the removal of governors who are no longer performing to the appropriate standard. This could be done either by the local education authority or by OFSTED inspectors. TheOFSTED inspection should also address the way the governing body conducts itself to ensure that its meetings are up to scratch.
Until such changes are made, there will be other cases like that in Berkshire and the administration of our education system will be left in the hands of those who are unaccountable and uncontrolled in the way they administer public money.
Cherie Booth is a QC and a governor of St Joan of Arc RCPrimary School, Islington. Jessica Hill is a solicitor, formerly with Berkshire County Council