Built on sound foundations
If further education is to re-establish its credibility, following the damaging reports into Gwent Tertiary College, Halton and Bilston, there needs to be a much clearer understanding of the expressions that together form the building blocks of college governance. Official reports have referred to "serious weaknesses in governance", the "need for greater accountability", governors "who took their eyes off the ball" or who were "not on top of the situation", the importance of "ethics" and "the standards of trustees". These terms can easily become jargon.
But it is not enough to understand the expressions - their underlying principles need to be applied. This has not happened at many colleges, where lip service has been paid to the ideal of "good governance".
The following is a explanation of some of the more important expressions that can cause confusion.
Basically, decision-taking by groups of people acting collectively. There are three main categories: planning, management and monitoring. Decisions are either by a majority vote at meetings with a quorum (see below), or by delegating the decision to somebody else, such as a committee, the principal or the chairman.
Agreed minimum number of governors necessary for decisions taken at meetings to be lawful.
The means whereby governors authorise somebody else to take decisions on their behalf. Some areas - often called "reserved responsibilities" - are considered to be so important that they must not be delegated. Such decisions will only be lawful if delegated in accordance with the college's rulebook.
Instrument and Articles
Of Government. Together, they form the constitutional rulebook, laying down the details of quorum, delegation, appointment and removal of governors and the way in which meetings are conducted. They are the law of the land, since they have been made with the authority of Parliament. Any decision taken by governors in breach of the rulebook will be unlawful and may put them at risk of incurring personal liability.
Or corporation or board. The label attached to governors who are able to take decisions as if they were one person. As a single body they can enter into contracts, employ and dismiss staff and buy and dispose of property, sue and be sued in the name of the college and not their individual names. To become corporate bodies, colleges have first to be incorporated by Act of Parliament. This brings with it one disadvantage - governing bodies must not act ultra vires.
The Latin tag to describe any decision taken by governors which exceeds the powers given to them by Parliament. For statutory corporations, those powers are set out in the 1992 Act. Whereas Section 18 of the Act ("principal powers") sets out the main charitable objects of the college, section 19 ("secondary powers") sets out the means of achieving those main objects. Decisions which are beyond the powers of the college will be legally invalid and in breach of fundingcouncil rules, and may result in personal liability for governors.
Or corporation members or members of governing bodies. They all mean the same thing, namely the persons who are collectively responsible for college decision taking. In the early years of incorporation, "corporate member" was preferred by many colleges to emphasise the new freedoms after more than a century of local authority control, but "governor" has more recently come back into favour as an expression which captures the tradition of public service.
A distinctly unfashionable word until the recent spate of scandals, since it called into question the autonomy of colleges. It's the process whereby governing bodies are held to account for their stewardship of public assets and funds and for the effective performance of their other legal and regulatory duties. Colleges are subject to two lines of accountability: to Parliament via the Further Education Funding Council and the Secretary of State in respect of their financial and regulatory responsibilities , and to the courts in respect of the general law.
For governing bodies to be truly accountable, the process of decision taking must be easily understood and able to withstand the test of public scrutiny. The policies and procedures that form the basis of corporate decisions should be clear and explicit, and should not be shut off from the public gaze behind closed doors.
The principal, as accounting officer, is personally responsible to Parliament for the proper use of public funds and assets. Can be called to account before the Public AccountsCommittee at any time.
Those values we associate with right and wrong, good and bad. In the area of governance, the values relate to those personal qualities expected of governors as "quasi trustees" (see below), and are rooted in the Judeo-Christian tradition. See also "the seven principles of public life" adopted by the Nolan Committee: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
An example of ethics in practice. Certain principles are so fundamental to achieve fairness (for example, the right for a person to be heard by an unbiased adjudicator) that judges reserve a discretion to quash any decision which is inconsistent with those principles. The rules of natural justice go back to Roman times and beyond . Modern judges have given the concept a more extended meaning, for example, to include the right to receive reasons for decisions which affect a person's civil rights. As public bodies, colleges are expected to observe these fundamental principles in their disciplinary procedures.
A term over which lawyers frequently disagree. Generally, a trustee is a person who holds property for the benefit of other persons or for some purposes other than his or her own. A governor is not a trustee in the strict sense of that word, but is said to occupy a similar position, ie, as a "quasi trustee".
John Hall is head of education law at Eversheds, solicitors, London EC4