EDUCATION, ENGLAND PART 1 Introduction Citation and commencement 1 1 These Regulations may be cited as the School Governance (Constitution) (England) Regulations 2003 and shall come into force on 20th March 2003, except for paragraph (2) of regulation 2, and regulation 34 and Schedule 7, which will come into force on 1 st September 2003. 2 These Regulations apply only in relation to England. Revocations savings and amendments 2 1 The Education (School Government) (Transition to New Framework) Regulations 1998 are hereby revoked. 2 Regulations 1 to 20 and regulation 58 of the Education (School Government) (England) Regulations 1999 are revoked with effect from 1 st September 2003, except for the following provisions which remain in force in respect of every maintained school until a new instrument of government is made for the school in accordance with regulation 33— Regulation 1 except for the words “and new schools” in paragraph (3); Regulation 2(1) except for the definitions of “the First Transitional Regulations”, “new school” “School Organisation Regulations”, “the Second Transitional Regulations” and “selection panel”; Regulation 2(2) except for the definitions of “temporary governing body” and “temporary governors”; Regulation 3 except for the words “or temporary governing body (however constituted)” and “or (as the case may be) new school”; Regulation 4 except for the words in brackets, for which are substituted the words “in accordance with the 1998 Act ”; Regulation 5(1) (a) except for the words “or will maintain” and “or a new school”; and after the words “for which an instrument of government has been made” are added the words “in accordance with the 1998 Act”; Regulation 5(2) (i) (iii) and (iv), except for the words “and (b)” and the words “or, in the case of a new school which has not opened, the diocesan authority which will be the appropriate diocesan authority when the school opens”; Regulation 6(1) and Schedule 1; Regulations 9 to 12 and Schedules 2 to 4; Regulation 15 except for the words “Subject to Part VIII (transitional provisions), Schedule 5 sets”, for which are substituted “Paragraphs (12) to (16) of Schedule 5 to these Regulations and Schedule 6 of the School Government (Constitution) (England) Regulations 2003 set”, and paragraphs (12) to (16) of Schedule 5; Regulations 16, except in paragraph (1) for the words “Part VIII (transitional provisions) and to”; Regulations 17; Regulation 18 except in paragraph (1) for the words “and to Part VIII (transitional provisions)”; Regulations 19 and 20. 3 Paragraph (1) of regulation 31 of the Education (New Schools) (England) Regulations 1999 , is amended by substituting the words “Part 5 of the School Governance (Constitution) (England) Regulations 2003” for the words “Schedule 12 to the 1998 Act”. Interpretation 3 1 In these Regulations— “the 1996 Act ” means the Education Act 1996 ; “the 1998 Act” means the School Standards and Framework Act 1998 ; “the 2002 Act ” means the Education Act 2002; “parent” includes any individual who has or has had parental responsibility for, or cares, or has cared for, a child or young person under the age of 18. 2 Any reference in these Regulations to— a the governing body or to the governing body of a school is a reference to the governing body of any maintained school to which the provision applies; b a governor is a reference to a member of a governing body of any school to which the provision applies; c the local education authority is a reference to the local education authority that maintains the school. PART 2 Categories of Governor Parent governors 4 1 In these Regulations “parent governor” means— a a person who is elected in accordance with paragraphs 4 to 8 of Schedule 1 as a governor by parents of registered pupils at the school and is himself such a parent at the time when he is elected, or b a person appointed as a parent governor in accordance with paragraphs 9 to 11 of Schedule 1. 2 A person is disqualified from election or appointment as a parent governor of a school if he is— a an elected member of the local education authority; or b paid to work at the school for more than 500 hours in any twelve month period commencing on 1st August and finishing on 31st July. 3 A person is not disqualified from continuing to hold office as a parent governor when he ceases to be a parent of a registered pupil at the school or to fulfil any of the requirements set out in paragraphs 10 and 11 of Schedule 1 (as the case may be) unless he is otherwise disqualified under these Regulations. Staff governors 5 1 In these Regulations “staff governor” means— a the head teacher, who is a staff governor by virtue of his office unless he resigns the position in accordance with regulation 22(1); b a person who is elected in accordance with Schedule 2 as a governor by persons who are paid to work at the school and is himself a person so working at the time when he is elected. 2 At least one staff governor (in addition to the head teacher) must be a school teacher unless no school teacher stands for election. 3 Where the school’s instrument of government specifies that there shall be three or more staff governors, at least one staff governor must be a person who is not a school teacher, unless no such person stands for election. 4 Prior to the coming into force of section 122 of the 2002 Act, when it shall be interpreted in accordance with that provision, “school teacher” means a teacher who is employed by— a a local education authority, or b the governing body, in the provision of primary or secondary education. 5 Upon ceasing to work at the school, a staff governor of a school will be disqualified from continuing to hold office as such a governor. LEA governors 6 1 In these Regulations “LEA governor” means a person who is appointed as a governor by the local education authority. 2 A person is disqualified from appointment as a LEA governor of a school if he is eligible to be a staff governor of the school. Community governors 7 1 In these Regulations “community governor” means a person who is appointed as a governor by the governing body and who is— a a person who lives or works in the community served by the school, or b a person who, in the opinion of the governing body, is committed to the good government and success of the school. 2 In the case of a community special school or a foundation special school the governing body must appoint as one of the community governors a person nominated in accordance with Schedule 3. 3 A person is disqualified from appointment as a community governor of a school if he is— a a registered pupil at the school; b eligible to be a staff governor of the school; or c an elected member of the local education authority. Foundation governors 8 1 In these Regulations— “foundation governor” means a person who is appointed as a governor otherwise than by the local education authority and who— where the school has a particular religious character , is appointed for the purpose of securing that that character is preserved and developed, where there is a trust relating to the school, is appointed for the purpose of securing that the school is conducted in accordance with that trust, or where the school does not have a religious character and there is no trust relating to it, is appointed as a foundation governor of the school; “ex officio foundation governor” means a foundation governor who is the holder of an office by virtue of which he is entitled to be a foundation governor; “substitute governor” means a foundation governor appointed to act in the place of an ex officio foundation governor who is unwilling or unable to act as a governor or has been removed from office under regulation 23(2). 2 One fifth or more of the persons appointed to the governing body of a voluntary aided school as foundation governors must be persons who are eligible for election or appointment as parent governors. 3 An ex officio foundation governor will, upon ceasing to hold the office from which his governorship derives, be disqualified from continuing to hold office as such a governor. Partnership governors 9 1 In these Regulations “partnership governor” means a person who is nominated as a partnership governor and appointed as such in accordance with Schedule 4. 2 A person is disqualified from nomination or appointment as a partnership governor of a school if he is— a a parent of a registered pupil at the school; b a registered pupil at the school; c eligible to be a staff governor of the school; d an elected member of the local education authority; or e employed by the local education authority in connection with its functions as a local education authority. Sponsor governors 10 In these Regulations “sponsor governor” means a person who is nominated as a sponsor governor and is appointed as such by the governing body in accordance with Schedule 5. Associate members 11 1 In these Regulations “associate member” means a person who is appointed by the governing body as a member of any committee established by it but who is not a governor. 2 An associate member may hold office for a period of four years, or such shorter period (not being less than one year) as may be determined by the governing body at the date of his appointment. 3 Nothing in this regulation shall prevent an associate member from being reappointed at the expiration of his term of office. 4 Any person who is disqualified from holding office as a governor of a school under Schedule 6 is likewise disqualified from holding or continuing to hold office as an associate member of the governing body, save as provided in paragraph 1 of Schedule 6. PART 3 Composition of governing bodies General principles 12 1 The instrument of government of a school must specify the size of the membership of the governing body, which must be no fewer than 9 or more than 20 governors. 2 In determining the size of its membership, the governing body must not include— a any sponsor governors, or b additional foundation governors appointed in accordance with regulation 16(2) (b). 3 Subject to regulations 13 to 16, the instrument of government must specify the numbers of governors from each of the following categories of governor to be elected or appointed— a parent governor; b staff governor; c LEA governor; d community governor; e foundation governor; f partnership governor; g sponsor governor. 4 In calculating the number of governors required in each category in accordance with regulations 13 to 16 the number must be rounded up or down to the nearest whole number. 5 In calculating the number of staff governors required, the head teacher must be included whether or not he has resigned his governorship. Community schools, maintained nursery schools and community special schools 13 1 The governing body of a community school, a maintained nursery school or a community special school must comprise the following: a one third or more must be parent governors; b at least two but no more than one third must be staff governors; c one fifth must be LEA governors; and d one fifth or more must be community governors. 2 The governing body may in addition appoint up to two sponsor governors. Foundation schools and foundation special schools 14 1 The governing body of a foundation school or a foundation special school must comprise the following: a one third or more must be parent governors; b at least two but no more than one third must be staff governors; c at least one but no more than one fifth must be LEA governors; d one tenth or more must be community governors; and e at least two but no more than one quarter must be foundation governors or, where the school does not have a foundation, partnership governors. 2 The governing body may in addition appoint up to two sponsor governors. Voluntary controlled schools 15 1 The governing body of a voluntary controlled school must comprise the following: a one third or more must be parent governors; b at least two but no more than one third must be staff governors; c at least one but no more than one fifth must be LEA governors; d one tenth or more must be community governors; and e at least two but no more than one quarter must be foundation governors. 2 The governing body may in addition appoint up to two sponsor governors. Voluntary aided schools 16 1 The governing body of a voluntary aided school must comprise the following: a at least one but no more than one tenth must be LEA governors; b at least two but no more than one third must be staff governors; c at least one must be a parent governor; d such number of foundation governors as out number all the other governors listed in sub-paragraphs (a) to (c) by two; and e such number of foundation governors appointed in accordance with regulation 8(2) as, when they are counted with the parent governors, comprise one third or more of the total membership of the governing body. 2 In addition— a the governing body may appoint up to two sponsor governors; and b the person who is entitled to appoint foundation governors may appoint such number of additional foundation governors (up to two) as are required to preserve their majority. Notification of appointments 17 Where any person makes an appointment or nominates a person to be appointed to the governing body, he shall give written notice of the appointment or the nomination to the clerk to the governing body specifying the name and usual place of residence of the person appointed or nominated. Joint appointments 18 If— a the instrument of government of a school provides for one or more governors to be nominated or appointed by persons acting jointly, and b those persons fail to make an agreed nomination or appointment, the nomination or appointment will be made by, or in accordance with a direction given by, the Secretary of State. Surplus governors 19 Where a maintained school has more governors of a particular category than are provided for by the instrument of government for the school, a governor of that category may serve out his term of office. PART 4 Qualifications and tenure of office Qualifications and disqualifications 20 Schedule 6 sets out the circumstances in which a person is qualified for or disqualified from holding or continuing in office as a governor. Term of office 21 1 Subject to paragraphs (2) to (5), a governor shall hold office for a fixed period of four years from the date of his election or appointment. 2 Paragraph (1) does not apply to any staff governor who is the head teacher of the school, or to any ex officio foundation governor, who may hold office for as long as he holds the position from which his governorship derives. 3 Paragraph (1) does not apply to any additional governor, additional foundation governor or interim executive member appointed under sections 16 , 16A , 18 or 18A of the 1998 Act whose term of office will be determined by the person who appointed him, up to a maximum of 4 years. 4 The instrument of government may specify a shorter term of office for a particular category of governor, not being less than 1 year. 5 A substitute governor may hold office until the earlier of the following— a the expiry of four years from the date when his appointment takes effect; b the date when the original governor (not having been removed from office under regulation 23 (2)) gives written notice to the clerk to the governing body to the effect that he is able and willing to act as a foundation governor; or c the date when a person other than the original governor takes office in the post by virtue of which the ex officio foundation governorship exists. 6 This regulation does not prevent a governor from— a being elected or appointed for a further term, save as otherwise provided in these regulations; b resigning his office in accordance with regulation 22(1); c being removed from office under regulations 23 to 26; or d being disqualified, by virtue of any provision of these Regulations, from holding or continuing to hold office. 7 In this regulation “the original governor” means the ex officio foundation governor in whose place the substitute governor is appointed to act. Resignation 22 1 A governor may at any time resign his office by giving written notice to the clerk to the governing body. 2 The head teacher may withdraw his resignation at any time by giving written notice to the clerk to the governing body. 3 An ex officio foundation governor may resign as governor either permanently or temporarily, but his resignation shall not prejudice the ex officio governorship of his successor in the office from which the ex officio governorship derives. Removal of LEA and foundation governors 23 1 Any LEA governor or foundation governor may be removed from office by the person who appointed him, who must give written notice thereof to the clerk to the governing body and to the governor so removed. 2 The governing body may, in accordance with the procedure set out in regulation 26, remove any ex officio foundation governor at the request of the person named in the instrument of government as the person entitled to make such a request, if the governing body thinks fit. 3 A person proposing the removal of an ex officio foundation governor must inform the clerk to the governing body and the governor in question in writing of the reasons why he is proposing his removal. Removal of community governors and sponsor governors 24 1 Any community governor or sponsor governor may be removed from office by the governing body in accordance with the procedure set out in regulation 26. 2 The governing body may, in accordance with the procedure set out in regulation 26, remove any community governor appointed in accordance with Schedule 3, or any sponsor governor at the request of the nominating body, if the governing body thinks fit. 3 A nominating body proposing the removal of such a governor shall inform the clerk to the governing body and the governor in question in writing of the reasons why it is proposing his removal. 4 In this part “nominating body” means any person from whom nominations were sought for the purpose of appointing, and who nominated, the governor in question. Removal of appointed parent governors 25 Any parent governor appointed by the governing body under paragraphs 9 to 11 of Schedule 1 may be removed by the governing body in accordance with the procedure set out in regulation 26. Procedure for removal of governors by the governing body 26 1 This regulation applies in relation to the removal of a governor from office in accordance with regulation 23(2), 24 or 25. 2 A resolution to remove a governor from office which is passed at a meeting of the governing body will not have effect unless— a in relation to the removal of a governor under regulation 23(2) and 24(2), before the governing body resolve to remove the governor from office, the clerk to the governing body shall give the reasons for removal provided by the person referred to in regulation 23(2) or by the nominating body (as appropriate) and the governor whom it is proposed to remove shall be given an opportunity to make a statement in response; b in relation to the removal of a community governor or a sponsor governor under regulation 24(1) or a parent governor under regulation 25, before the governing body resolve to remove the governor from office, the governor or governors proposing his removal shall at that meeting state their reasons for doing so and the governor whom it is proposed to remove shall be given an opportunity to make a statement in response; c it is confirmed by a resolution passed at a second meeting of the governing body held not less than fourteen days after the first meeting; and d the matter of the governor’s removal from office is specified as an item of business on the agenda for each of those meetings. PART 5 Instrument of Government Interpretation of “appropriate diocesan authority” and “appropriate religious body” 27 In this Part, “appropriate diocesan authority” shall have the meaning given by section 142(1) and (4) of the 1998 Act; “appropriate religious body”, in relation to a school designated under section 69(3) of the 1998 Act as having a religious character that is not a Church of England school or a Roman Catholic Church school, means the body that the Secretary of State considers appropriate in relation to the religion or religious denomination to which the school belongs. Duty to have regard to guidance 28 In respect of the making of instruments of government, the matters to be dealt with in such instruments, the form of such instruments, and the review and variation of such instruments, governing bodies and local education authorities must have regard to any guidance given from time to time by the Secretary of State. Contents and form of instrument of government 29 1 The instrument of government for a maintained school must set out— a the name of the school; b the category of school to which the school belongs; c the name of the governing body of the school; d the manner in which the governing body is to be constituted in accordance with Part 3, specifying— i the number of governors in each category of governor, and ii the total membership of the governing body, including any sponsor governors and additional foundation governors appointed in accordance with regulation 16(2)(b); e where the term of office for a category of governor is to be less than four years, the length of that term of office; f where the school has foundation governors— i the name of any person who is entitled to appoint such governors and, if there is more than one such person, the basis upon which such appointments are made, ii details of any foundation governorship to be held ex officio by the holder of a named office, and iii the name of any person who is entitled to request the removal of any ex officio foundation governor and to appoint any substitute governor; g where the school has sponsor governors, the name of any sponsor who is entitled to nominate persons for appointment as such governors under Schedule 5; h where the school is a maintained special school, the name of any body entitled to nominate a person for appointment as a community governor under Schedule 3; i where there is a trust relating to the school, that fact; j where the school is a foundation or a voluntary school which has a religious character, a description of the religious ethos of the school; and k the date when the instrument of government takes effect, which must not be earlier than 1 st September 2003. 2 The manner in which the governing body is to be constituted, as set out in accordance with sub-paragraph (1) (d), must accord with the provisions of these Regulations as they apply to a school of the category to which the school belongs. 3 The instrument of government must (subject to any statutory provision) comply with any trust relating to the school. Procedure for making an instrument 30 1 Subject to paragraph (6), the governing body must prepare a draft of the instrument of government and submit it to the local education authority. 2 Where the school has foundation governors, the governing body must not submit the draft to the local education authority unless it has been approved by— a the foundation governors; b any trustees of any trust relating to the school; c in the case of a Church of England school or Roman Catholic Church school, the appropriate diocesan authority; and d in the case of any other school designated under section 69(3) of the 1998 Act as having a religious character, the appropriate religious body. 3 On receiving the draft the local education authority must consider whether it complies with all applicable statutory provisions, and if— a it is content that the draft so complies, or b there is agreement between it, the governing body and (if the school has foundation governors) the persons mentioned in paragraph (2) that the draft should be revised to any extent and the revised draft complies with all the applicable statutory provisions, the instrument of government must be made by it in the form of the draft or (as the case may be) in the form of the revised draft. 4 If, in the case of a school which has foundation governors, at any time the persons listed in paragraph (2) disagree with the draft, any of those persons may refer it to the Secretary of State who will give such direction as he thinks fit having regard, in particular, to the category of school to which the school belongs. 5 If neither of sub-paragraphs (a) and (b) of paragraph (3) applies in the case of a school which does not have foundation governors, the local education authority must— a inform the governing body of the reasons why it is not content with the draft instrument of government, and b give the governing body a reasonable opportunity to reach agreement with it on revising the draft; and the instrument of government must be made by it either in the form of a revised draft agreed between it and the governing body or (in the absence of such agreement) in such form as it thinks fit having regard, in particular, to the category of school to which the school belongs. 6 In the case of a maintained nursery school, the local education authority must prepare and make the first instrument of government, which must comply with all statutory provisions. Review of instruments of government 31 1 The governing body or the local education authority may review the instrument of government at any time after it is made. 2 Where on any review the governing body or the local education authority decides that the instrument of government should be varied, the governing body or (as the case may be) the local education authority shall notify the other of its proposed variation together with its reasons for proposing such a variation. 3 Where the governing body has received notification under paragraph (2), it must inform the local education authority as to whether or not it is content with the proposed variation and, if not content, its reasons. 4 Where the school has foundation governors, the governing body must not give the local education authority— a any notification under paragraph (2), or b inform the authority under paragraph (3) that it is content with the authority’s proposed variation, unless the persons listed in regulation 30(2) have approved the proposed variation. 5 If— a whichever of the governing body and the local education authority is the recipient of a notification under paragraph (2) agrees with the proposed variation, or b there is agreement between the local education authority, the governing body and (if the school has foundation governors) the other persons listed in regulation 30(2) that some other variation should be made instead, the instrument of government must be varied accordingly by the local education authority. 6 If, in the case of a school which has foundation governors, at any time the persons listed in regulation 30(2) disagree with the proposed variation any of those persons may refer it to the Secretary of State; and on such a reference the Secretary of State will give such direction as he thinks fit having regard, in particular, to the category of school to which the school belongs. 7 If neither sub-paragraphs (a) and (b) of paragraph (5) applies in the case of a school which does not have foundation governors, the local education authority must— a inform the governing body of the reasons— i why it is not content with the governing body’s proposed variation, or as the case may be, ii why it wishes to proceed with its own variation, and b give the governing body a reasonable opportunity to reach agreement with it with regard to the variation; and the instrument of government must be varied by it either in the manner agreed between it and the governing body or (in the absence of such agreement) in such manner as it thinks fit having regard, in particular, to the category of school to which the school belongs. 8 Nothing in this regulation is to be taken as requiring the local education authority to vary the instrument of government if it does not consider it appropriate to do so. 9 The requirement under regulation 30(3) for the local education authority to consider compliance with all applicable statutory provisions, applies in relation to a proposed variation of an instrument of government as it applies in relation to a draft of such an instrument. 10 Where an instrument of government is varied under this regulation the instrument must set out the date on which the variation takes effect. Other requirements relating to instruments of government 32 1 The local education authority must ensure that the persons set out in paragraph (2) are provided (free of charge) with— a a copy of the school’s instrument of government, and b where any variation is made to the school’s instrument of government, a consolidated version of the instrument of government incorporating all variations made by order of the local education authority (other than any variations which have ceased to have effect). 2 The persons who are to be provided with the information referred to in paragraph (1) are— a every member of the governing body of the school; b the head teacher, whether or not the head teacher is a member of the governing body; c the trustees of any trust relating to the school; d in the case of a Church of England school or Roman Catholic Church school, the appropriate diocesan authority; and e in the case of any other school designated under section 69(3) of the 1998 Act as having a religious character, the appropriate religious body. Duty to secure making of instruments of government 33 A local education authority shall make an instrument of government in accordance with these Regulations for each school which is maintained by them, no later than 31st August 2006. PART 6 Transitional Provision Transitional provision 34 Schedule 7 has effect for the purpose of continuing the term of office of governors on transition to an instrument of government made in accordance with these Regulations. David Miliband Minister of State, Department for Education and Skills 18th February 2003