Take sackings out of reach of the politicians
In the debate about college accountability, much has been said about the need for an open selection and systematic appointment of governors. Surprisingly little has been said about removing them.
Questions such as "by whom, how, and on what grounds should they be removed?" have not been aired.
Like the media treatment of the "smart bomb" in the Gulf War, the adequacy of the exit arrangements for governors has been sanitised by concentrating, perhaps too closely, on the appropriateness of the appointments process and assuming that existing mechanisms for dismissing governors work well.
Imposing limits on reappointments is a seemingly "neat" solution to the problem (if it exists) of self-perpetuating governing bodies, but would a change of this nature have any real effect on how well or badly a governing body performs?
Similarly, governors were removed by the Secretary of State for mismanagement at Derby College, Wilmorton with surgical precision, but was the manner of their removal satisfactory? More to the point, should the Secretary of State have such far-reaching powers over autonomous governing bodies, where she has none in respect of their higher education counterparts?
The lack of debate about the removal of college governors contrasts with the importance which company law attaches to shareholders having the right at any time to remove company directors by simple majority vote. This right is so fundamental to the accountability of directors to shareholders - as economic owners of the business - that it must not be excluded by a company's articles of association or by agreement. No "contracting out" is permitted.
Governors of FE colleges may be removed in two main situations. First, the governors may exercise the power to remove one or more of their number under the statutory instrument of government on grounds of absenteeism for more than six months without permission or if they are "satisfied" that the governor is unable or unfit to remain in office. Second, under Section 57(1) of the Further and Higher Education Act 1992 the Secretary of State may "intervene" (interestingly, this is how her powers are summarised in the Act) and remove governors where she is "satisfied" that the affairs of a college have been, or are being, mismanaged. This course of action must first be recommended by the Further Education Funding Council.
In both situations the verb "satisfied" has been used on purpose. This has some constitutional significance, because it makes the decision of the governing body or the Secretary of State, in practice, difficult to challenge in the courts by judicial review. "Satisfied" means that a subjective test must be applied, so that, provided that the decision to remove the governor has been taken in good faith, the courts will not seek to examine the reasons for the decision. This inevitably weakens the effectiveness of the courts in exercising their constitutional role as a check on the exercise of discretionary power by ministers. As that great constitutional lawyer, A V Dicey, taught l00 years ago, in the hands of Government discretionary power can so easily become arbitrary and autocratic, if the rule of law is ignored.
It is therefore hardly surprising that there is no case law on the removal of college governors. There is, however, the saga of Derby College, Wilmorton to indicate how the provisions work in practice.
One of the many criticisms of Derby College was that the governing body disregarded the rules of natural justice in the way it removed one of the staff governors. According to the FEFC report of inquiry, the staff governor was removed at a meeting of the governing body held on a Sunday morning and on only 24 hours notice, and that he was given no opportunity to prepare his case. A resolution was passed to "remove" him, although the fact that he had not been validly appointed in the first place seems to have escaped the attention both of the governors who sought his "removal" and the FEFC.
The Secretary of State, on the recommendation of the FEFC, then proceeded to remove certain of the Derby College governors because of mismanagement, but only after a careful re-examination of the evidence by the Department for Education. This was prompted by a criticism that the FEFC had themselves disregarded natural justice by not giving the Derby College governors an opportunity to prepare their defence and to make representations to the inquiry so that mistaken findings of fact upon which the recommendation for removal was based could be corrected. Whatever valuable lessons have been learnt from this case, the manner in which the powers of removal were exercised left many governors and managers with a sense of unease.
Is there a better way of making governors answerable to the public than leaving the Secretary of State to be the sole judge of whether governors should be removed because of mismanagement? It is an issue Lord Nolan must address in his inquiry into standards in public life.
If parity of esteem means anything, surely independent further and higher education corporations should be treated equally with regard to governor removal, rather than singling out further education colleges for possible Secretary of State "intervention".
One solution would be to end the Secretary of State's power under Section 57(1) of the 1992 Act and, instead, make the courts and the charity commissioners responsible for removing governors who are guilty of misconduct or mismanagement. Such an approach would be more consistent with the independent legal and operational status of colleges, and with the law relating to the removal of charity trustees.
The charity commissioners would have the power to investigate complaints against governors without the danger of political interference - which is inevitably present where an inquiry is conducted by the DFEE or its agency, the FEFC. Members of the public with a sufficient interest should have the right to bring a complaint, on clearly specified grounds, before the courts or the charity commissioners.
So, as the accountability debate continues, let us not overlook governor removal as the public's ultimate control over governing bodies, or the need to ensure that the power to remove governors is firmly entrenched within a framework which is as free as possible from the threat of political abuse.
John Hall is head of the education law department of Eversheds, London