Bring on the procedure police

January 12, 1996

The Nolan committee on standards in public life has now turned to higher and further education, but we have been told that Lord Nolan believes that no more external regulation of either sector is necessary. This statement raises interesting questions about the sort of internal regulation that Lord Nolan might have in mind.

It was perhaps no coincidence that, when giving evidence to the committee, the Further Education Funding Council suggested that clerks should have a new role in ensuring the probity of governors. As a clerk to a corporation and a lawyer specialising in charity and education law, this debate has made me consider the existing role of clerk and to ask whether the FEFC's suggestion would do anything more than restate the existing situation.

In practice, the clerk to any further or higher education corporation is probably involved in summoning meetings and taking minutes. Yet I believe there are a number of additional roles the clerk should perform.

Some may seem initially to be the proper role of the chair - strong leadership can make an overt role for the clerk less necessary, but even in the best circumstances there is still an important role. A clerk should ensure that proper procedures are followed, and intervene to ensure that the agenda is followed or to allow a member to have their say.

Often it is difficult for the clerk to control the meeting in this way. This may be because some previously unassertive clerks have been seen only as minute keepers. Also the clerk is often a member of the senior management of the corporation and isfrequently identified with the executive and perhaps the chair.

If there are important issues under discussion, and views antithetical to the management are being expressed, it is sometimes difficult for these views to get a proper hearing. In addition, because in many corporations business members significantly outnumber staff and student members, it is sometimes hard for staff and students to express their views on the actual operation of policies.

It is essential that someone present at meetings should have a clear view of the constitutional procedures. Not only does this mean having a working knowledge of the instrument of government and relevant legislation, but an understanding of how they impact in practice. Since 1988 a considerable amount of difficult legislation has been enactedwhich applies to higher and further education. An experienced clerk with the ability to advise on these matters is very desirable. The clerk's intervention can also be vital in connection with conflicts of interest, which can all too easily be overlooked. In further education clerks are being encouraged to establish registers of interests and this is certainly a step in the right direction.

Yet it is essential that a clerk should monitor the register and identify the conflicts when they arise - even if a member does not. It is encouraging that governors are increasingly prepared to accept model codes of conduct, but it is vital that someone present at meetings should monitor matters.

To demand the highest possible standards in an increasingly complex regime means that we should not only be asking questions about the probity of governors but ensuring that there is a mechanism to identify the full range of issues that must be considered when decisions are to be taken and to call for the required professional support. I believe that the clerk already has a formal requirement to play this role but it could be developed.

Lord Nolan's brief is to ensure that individuals in positions of authority act with probity, is just one of a number of issues that face the further and higher education sectors. To tackle the demand for increased internal control an increased role for the clerk to the corporation has been mooted. There can be no doubt that the holders of this post have had low expectations of their duties or have not sought to oversee the activities of corporations as actively as they might.

A radical overhaul of the duties of the clerk is not what is required. Rather what is needed is some encouragement to clerks to intervene actively in the conduct of corporation meetings to assist governors, to allow full debate, to remind members of the limitations of their duties and to insist that professional advice should be sought when complex matters are being addressed.

I am certain that only by insisting on the appointment of an independent clerk will these tasks really be undertaken. Only then will governors be able to undertake their duties properly. It is distracting to turn the clerk into a police officer of issues of probity only.

David Isaac is an Oxford solicitor and clerk to Rycotewood College, Thame.

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