Exclusions - Role of Governors Now - and in the Future

Exclusions are becoming a major policy issue (see Brief Alerts this month). Following on from our recent article on getting the basics of exclusions right, we turn to look at the role of Governors in reviewing exclusions. Where governors are required or requested to consider parents’ representations about an exclusion (depending on a number of relevant factors not discussed here), it is important that they do in fact have the power to do so. Failure to act with the proper authority (as with teachers making exclusion decisions) can mean decisions are challenged and overturned on the grounds of illegality.

The 2017 Exclusions Guidance states:

“In the case of a maintained school, the governing board may delegate its functions with respect to the consideration of an exclusion to a designated sub-committee consisting of at least 3 governors. In the case of an academy, the governing board may delegate to a smaller sub-committee if the trust’s articles of association allow them to do so”.

Thus in both cases if the matter will not be dealt with by the full Governing Body or the Trust Board, there must be a clearly defined written scheme of delegation giving the power to the level at which the decision is actually taken. NB the reference to a “smaller sub-committee” is best read as being a sub-committee of the Local Governing Body (LGB), rather than a sub-committee with less than 3 governors. (LGBs of Academies in effect being a “sub-committee” of the Trust, whilst a sub-committee smaller than 3, is wrong for obvious reasons).

Looking ahead, the National Governance Association’s (NGA) response to the government’s review of exclusions indicates that governors should not be responsible for reviewing exclusions. Instead the NGA suggests that representations should be made to an independent tribunal, arguing that excluding a pupil is a technical and legal matter and not a governance one. It appears that this proposal will now be considered as part of the government review which reports in the new year.

There is some logic in such a proposal. Governors are, often wrongly, accused of backing the head teacher’s decision regardless of its merit. Exclusions do often become protracted legal procedures whereby governors may have to justify any decision to uphold a permanent exclusion on the same principles that would apply to judicial review to another body (the Independent Review Panel or “IRP”) whose members are also not required to have any judicial or legal training. Removing the governors’ stage will streamline the process particularly in the case of permanent exclusions, which would currently be considered by an IRP in any event.

However, a lot will depend on how wide any independent tribunal’s remit would be (permanent exclusions, those which governors must consider regardless of parental representations, or all exclusions?). If any new proposal lead to significantly more exclusion reviews than are currently heard by IRPs, it may be wise to consider the resource implications given the current onerous composition requirements of an IRP (lay chair, current or no less than 5 years retired head teacher, a current or recent governor).

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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