I have learned that the DfE has put out for "secret" consultation the draft of proposed new regulations, The School Governance (Procedures and Allowances) (England) Regulations 2013. It's come to light because they've been posted on the website of an organisation that the DfE has allowed to see them but there's no mechanism for any response to be given. I am therefore wondering whether it is possible to ask a question about them through this Qamp;A forum and for it to be passed on to whoever in DfE is dealing with the "secret" consultation?
My question is this. In the draft School Governance (Procedures and Allowances) (England) Regulations 2013 is this paragraph concerning governing body powers of delegation: "18 (4) The governing body may not delegate functions relating to powers conferred, and the duties imposed, on governing bodies by or under regulations made under sections 35 and 36 of the EA 2002"
Can you clarify the intention of this new provision? It isn't in the current regulations. Possibly the most important regulation made under sections 35 and 36 of the EA 2002 is The School Staffing (England) Regulations 2009. What is it in the staffing regulations that the governing body can currently delegate to a committee or individual that it won't be able to when 18 (4) comes into force? The School Staffing (England) Regulations 2009 already require full governing body to decide the appointment of headteacher and deputy headteacher. Does 18 (4) mean for example that in future staff dismissal decisions can only be taken by full governing body and not by a staff disciplinary committee?
At present governors must be present in person at a governing body meeting to participate, vote and count towards the quorum. The proposed new regulations change this by adding this clause: "18 (1) Notwithstanding the requirements of paragraphs (1) to (3), the governing body may approve alternative arrangements for governors to participate or vote at meetings of the governing body including but not limited to by telephone or video conference". This power is very wide - wider than has been granted to academies - and the phrase "including but not limited to" could mean some very different ways of voting such as proxy voting. Can the DfE advise the intention and limitations of this clause, and specifically, if enacted as drafted,
(1) Would governors participating by telephone or video conference call count towards the quorum?
(2) Would this clause allow the Chair to be cast proxy votes for absent governors if the proxy vote mandate instructs the Chair to vote in a particular way?
(3) Would this clause allow the Chair to be cast proxy votes for absent governors if the proxy vote mandate allows the Chair to vote at the chair's discretion?
(4) Would an absent governor be able to submit their contribution to a debate in advance by email to be circulated at the meeting, and to cast their vote via this email?
Although proxy voting is allowed in company law and common at company AGMs the circumstances are not comparable to a governing body meeting. At a company AGM the resolution to be voted on is invariably specified in advance of the meeting and circulated to shareholders with the agenda, so shareholders know precisely what they are voting on. This would be highly unusual at a governing body meeting where the specific resolution typically emerges during the discussion at the meeting.
DfE answers: We are aiming for a short, targeted consultation on the School Governance (Procedures and Allowances)(England) Regulations 2013. To help this process we have circulated the draft regulations to members of the Advisory Group on Governance (AGOG) who are free to circulate to and seek comment from their members. AGOG advises and assists the Department, the Group provides a forum for representatives to raise and discuss issues of general principle and detail affecting school governance. Its members are drawn from a variety of governor representative organisations. We are grateful that you have brought to our attention the issue of delegation, raised in your query about regulation 18(4). The phrase "save as provided in regulations" has been omitted and will be reinstated.
In answer to your questions about the participationvoting arrangements in meetings of the governing body, we confirm that:
1. Governors participating by telephone or video conference will count towards the quorum.
2. The chair will not be able to cast proxy votes for absent governors.
3. Again, the chair will not be able to cast proxy votes for absent governors.
4. An absent governor would be able to submit their contribution to a debate in advance under the circumstances that you have outlined. This would be allowed only where such arrangements were agreed in advance of the meeting.
Thank you for your providing us with your comments.
Read the Qamp;As from 3rd December to 20th February here