The Government is to clarify the terms of reference for governing bodies when it sets up the three new categories of schools: community, foundation and aided. Fresh regulations are to be drawn up to spell out the main functions of governing bodies. These will require governors to help raise standards at their school; to determine the character, mission and ethos of the school; and to comply with the responsibilities imposed upon them by legislation.
The Government wants to shorten Instruments of Government and abolish Articles of Government. Instruments are the legal documents which set out
the composition and conduct of the governing bodies; articles stipulate their duties.
Since the vast majority of governors do not know what is in the present instruments and articles (but do know that they are wide-ranging and complex), this will undoubtedly be welcomed. Governors will be more concerned with what replaces them.
It was the previous government which commissioned Professor Neville Harris of Liverpool John Moores University to consider the problem. His report, The Legislative Basis for School Governance, points out that governments have struggled with instruments and articles ever since they were introduced for secondary schools in 1908 to prevent local authorities and governing bodies from exceeding their authority.
By 1944, most maintained primary schools had managers and secondary schools had governors. The then minister, R A Butler, argued in Parliament against model instruments and articles for secondary schools. He wanted separate articles for each school to "reflect individual characteristics and the manner in which each school fits into the locality".
Butler hoped to avoid the difficulty of regulating centrally the lives of individual schools through Parliament without leaving the position so vague that the schools were left uncertain.
This is much the same dilemma recognised by the present government. The White Paper published in July affirms that schools should be "free to make as many decisions as practical for themselves, in particular on internal management, resource allocation and day-to-day operation". But it also warns that this freedom must be accompanied by accountability to parents, the local community and the wider public.
Butler's hopes of balancing the two were dashed when his officials published, against his wishes, model instruments and articles. Although a few local authorities added phrases of their own, these models became the norm. Schools themselves were blissfully ignorant of the fact that they could have requested their own versions.
Many governing bodies were little more than sub-committees of the local authority, often serving four or five schools. Most found it impossible to show individuality, since the authority had ensured that its schools should not only be governed in accordance with the articles, but added "and any LEA regulations and directions". Local authorities intended to rule.
Frustration with the existing arrangements resulted in the Taylor Report in the 1970s, and new kinds of elected governing bodies set out in the 1980 Education Act. But the dramatic changes came in 1986 and 1988.
Sir Keith Joseph was determined to ensure in his 1986 Education Act that decisions about the conduct of a school should, where possible, be taken by the governors. Kenneth Baker, in 1988, took this to fresh extremes by creating grant-maintained schools and giving all governors a plethora of duties - to which successive secretaries of state have added.
The Harris report considers the current position to be untenable. It is impracticable for the current instruments and articles to reflect the range and complexity of legal responsibilities now resting with governing bodies and headteachers. Most governors and heads have given up trying to master the thousands of pages of circulars that have thumped on to their desks since 1986.
The DFEE knows that now is the time to settle the matter. Its proposals in the August paper, Framework for the Organisation of Schools, are forthright but beg many questions.
The new arrangements will be applied through legislation rather than through articles. The conduct and operating of governing bodies will be laid down in an updated School Government Regulations, and the DFEE's Guides to the Law will bring all the responsibilities together.
But the department seems to recognise that this might not be enough. The consultation paper suggests that an independent working party could be asked to consider more detailed standing orders.
More than standing orders are required, however. Governors, heads and local authorities need above all an authoritative statement of their functions, the division of responsibilities, and the limits of each other's powers.
Harris suggests a number of options, but the one which might satisfy all parties is the proposal for a Framework of School Government that will provide a comprehensive statement of powers and responsibil ities analogous to the Code of Practice on the Identification and Assessment of Special Educational Needs. It could have legal status and be produced with updating in mind. It could ensure a more coherent legal framework to school governance as well as take account of the needs of different schools.
It would be a big document, but the governors' guides would not be needed,and indexing and cross-referencing with circulars and regulations would point readers to sources of more detailed information. Governing bodies could dip into appropriate sections as necessary.
The DFEE seems happier with its recommendations for new instruments. Some tinkering with the numbers in each category of governor are suggested, but the only additional category proposed is for non-teaching staff. This was discussed and rejected at the time of the 1986 Act. It is good news that the very important role of support staff is to be recognised.
Sadly, there is no mention of pupilstud ent governors, an issue pursued with some zeal by Old Labour at the time of the 1986 Act. The Conservatives later gave in to representations from the tertiary sector and allowed governors under the age of 18 so long as they were students at the college.
This creates an anomaly which will persist if the Government is not persuaded during consultation of the daftness of distinguishing between 1617-year-olds in schools and those in colleges.
Chris Lowe is head of Prince William School, Oundle, and editor of Croner's School Governor's Manual