Cardinal Vaughan Memorial School, R (on the application of) v Roman Catholic Archbishop of Westminster & Ors

The composition requirements for foundation governors must be construed according to the natural meaning of the governing regulations and the school’s Instrument of Government. A requirement that two foundation governors be eligible for appointment as parent governors concerns eligibility at the time of appointment; it does not require two current parents to remain among the foundation governors.

The power to appoint or reappoint foundation governors is unfettered, provided it is exercised in good faith. The appointment of an employee of the appointing foundation is not invalid merely because conflicts of interest or loyalty may arise. Such conflicts can be managed by declaration and withdrawal from the relevant decision.

The parent governors of a voluntary aided Roman Catholic secondary school challenged the decision of the Archbishop of Westminster and the diocesan trustee to appoint four foundation governors. They argued that two appointees had to be current parents where reasonably practicable, and that the appointment of the Diocese’s Director of Education was unlawful because of possible conflicts between his employment duties and his duties as a governor.

The court granted permission and determined the substantive judicial review. The central issues were the construction of the School Governance (Constitution) (England) Regulations 2007 and the school’s Instrument of Government, and the legal limits on the power to appoint foundation governors.

Claim dismissed. The court granted permission but rejected each substantive ground.

1. Parent eligibility. Regulation 18 and the Instrument of Government required two of the eleven foundation governors to be eligible for election or appointment as parent governors at the time of their appointment. The relevant provisions of Schedule 1 distinguished eligibility from the procedure governing an appointment. Paragraph 10(2) required priority to be given to a current parent when an appointment was being made, where the cascading conditions applied. It did not require the body of foundation governors always to contain two current parents.
2. Appointment power. A foundation governor is not the delegate of the foundation or appointing body. Applying R v Trustees of the Catholic Diocese of Westminster, ex parte Andrews [1990] COD 25 and R v ILEA, ex parte Brunyate [1989] 1 WLR 542, the court distinguished appointment and reappointment from removal during a governor’s term. Appointment and reappointment were matters for the appointing body’s unfettered discretion, subject to good faith.
3. Employee governor and conflicts. The appointment of the Diocese’s Director of Education was not invalid because his employment created potential conflicts. The evidence indicated that conflicts could be managed in accordance with good practice by declaration and withdrawal from the relevant discussion or vote. There was no evidence of bad faith.
4. Wednesbury irrationality. The court rejected the argument that the appointment discretion was constrained by Wednesbury principles. In any event, the appointment would not have been irrational or Wednesbury unreasonable. The claim was therefore dismissed. Permission to appeal was refused.

This was a first-instance judicial review in the Administrative Court. The judgment itself records no earlier merits decision.