Cardinal Vaughan Memorial School, R (on the application of) v The Archbishop of Westminster & Anor

For a voluntary aided school, the requirement that some foundation governors be eligible for election or appointment as parent governors is met if they fall within the statutory parent categories when appointed. The sequential preference in paragraph 10(2) of Schedule 1 to the School Governance (Constitution) (England) Regulations 2007 governs how the governing body appoints parent governors. It does not make the Archbishop’s appointment of foundation governors conditional on proving that it was not reasonably practicable to appoint a current parent. Employment by the appointing diocese does not itself disqualify a foundation governor. Loyalty does not require obedience to an unlawful direction, and the possibility of disagreement does not, without more, invalidate the appointment.

The parent governors of a voluntary aided Roman Catholic secondary school challenged the replacement of four diocesan foundation governors. They argued that the governing body lacked the required number of foundation governors eligible to be parent governors because two existing governors were parents of a former pupil or a child of compulsory school age. They also argued that Paul Barber, the diocesan Director of Education, was disqualified by employment and fiduciary duties of loyalty.

HHJ Sycamore in the Administrative Court rejected both complaints. The Court of Appeal considered the construction of Regulation 18(1)(e), paragraph 5(a) of the Instrument of Government, and paragraphs 10(1) and 10(2) of Schedule 1. The central issue was whether paragraph 10(2) controlled eligibility for the foundation-governor quota or only the governing body’s method of appointing parent governors.

The appeal was dismissed. Lady Justice Janet Smith and Lord Justice Rix formed the majority on the first issue. All three judges agreed on the challenge to Mr Barber’s appointment.

1. Foundation-governor quota. The majority held that eligibility under Regulation 18(1)(e) and paragraph 5(a) of the Instrument of Government was assessed by reference to the position at the time of appointment as a foundation governor. Paragraph 10(1) identifies the relevant parent categories. Paragraph 10(2) governs the governing body’s sequential method of choosing parent governors and does not restrict the Archbishop’s appointment of foundation governors. The absence of a separate statutory scheme for foundation governors and the potentially unworkable consequences of applying reasonable practicability to religious selection supported that construction. Mr Offiah and Mrs Waplington therefore counted towards the required number.
2. Appointment discretion and independence. Applying R v ILEA ex p Brunyate [1989] 1 WLR 542, the court treated the Archbishop’s appointment power as wide, subject to statutory requirements. A foundation governor is not the Archbishop’s delegate and cannot be required to vote as he directs. An employee’s or fiduciary’s duty of loyalty is circumscribed and does not require compliance with an unlawful instruction. Mr Barber’s employment and responsibility for diocesan education policy therefore did not disqualify him.
3. Potential conflicts and review. A future disagreement between the governing body and the Diocese did not itself invalidate the appointment. Governors must retain independent judgment, but are not required to support a decision with which they disagree or resign. The court left open whether the appointment power was generally reviewable on Wednesbury grounds or only for bad faith. On the facts, however, Mr Barber’s appointment was not Wednesbury unreasonable.
4. Dissent. Sir Richard Buxton LJ would have held that paragraph 10(2) formed part of eligibility. Since it had not been shown that appointing current-pupil parents was not reasonably practicable, Mr Offiah and Mrs Waplington could not count. He would have made a declaration that the governing body was unlawfully constituted.

• Court of Appeal (Civil Division): [2011] EWCA Civ 433. Appeal dismissed. The majority held that the governing body was properly constituted; the challenge to Mr Barber’s appointment was rejected unanimously.
• Queen’s Bench Division, Administrative Court: HHJ Sycamore, CO/9699/2010. Both complaints were rejected.