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The Governor’s
Responsibility

The Governor’s Responsibility

April 28, 2017
The Governor’s Responsibility

“Am I my Brother’s Keeper?”
(Genesis 4: 1-9)

Introduction
In October 2015, the chairman and governing board of Glasgow Clyde College were removed from office by the Scottish Government and replaced by a new board. According to Ministers, there had been “repeated incidences of failure relating to governance”. The board had mismanaged its finances, breaching spending rules. Education Secretary, Angela Constance, said the board’s relationship with students had broken down.

The consequence of removal is life-long disqualification from membership of any board of management in further and higher education. If nothing else, that is obviously of huge public embarrassment.

One of the members of Glasgow Clyde College, who was removed, was Peter Laverie. He was one of the teaching staff at the college and had been elected to the board by them. He claimed that his removal was unlawful. He brought a challenge against the Scottish Ministers to the Outer House of the Court of Session. Lord Clark issued his decision on 17 March 2017.

Legislation Considered
The court considered the following statutory provisions:

  1. A Section 24 of the 1992 Act
    This section basically provides that if it appears to the Scottish Ministers that a management board is guilty of financial mismanagement, failure to properly discharge its duties, or failure to provide a sufficient standard of education, then any or all of its members (other than the Principal) may be removed.
  2. The sections of the 2005 Act noted below are in similar terms.
  3. B Paragraph 5A(1)(c) of Schedule 2 to the Further and Higher Education (Scotland) Act 1992; and paragraph 4(2)(c) of Schedule 1, and Paragraph 6(1)(c) of Schedule 2B to the Further and Higher Education (Scotland) Act 2005
    These provisions basically provide that a person is not eligible for appointment as a board member if he has previously been disqualified under section 24 of the 1992 Act; or section 7(2) or section 23Q of the Further and Higher Education (Scotland) Act 2005.
  4. C Article 6(1) of the European Convention on Human Rights
    This provides that, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal established by law.
  5. D Article 11 of the European Convention on Human Rights
    Under this article, everyone has the right to freedom of peaceful assembly and to freedom of association with other, including the right to form and join trade unions for the protection of his interests.

Factual Matrix
At a Board meeting, the Chair informed the members of his decision to suspend the Principal, on the advice of solicitors to the Chair. The reasons for the suspension were not explained, and the board were given no opportunity to agree or disagree with the decision to suspend. They were not afforded sight of the legal advice, under explanation that such sight may prejudice any disciplinary process.

The Principal sought a review of the governance of the College and the Scottish Funding Council instructed a review by other solicitors. The review concluded that the Board had mismanaged the affairs of the College. It recommended removal of the Chair and the Board. The review made no personal criticism of Mr Laverie.

Opportunity to comment on the review was given by way of letters to members, followed by a meeting between the Cabinet Secretary, the Chair and two members of the board (of which Mr Laverie was not one). Yet other solicitors also made a written submission on behalf of all of the Board.

The Board, including Mr Laverie, was then removed.

Challenge
Mr Laverie challenged his removal on the following grounds:
1 Section 24 of the 1992 Act breached Article 6(1) of the Convention
2 The removal was a disproportionate interference with his rights under article 11 of the Convention, given that he was not personally found wanting.
3 His removal was unlawful at common law because:
a. No reasonable Minister would have removed him from the Board; and
b. The process of materially breached the principles of Natural Justice. (Natural Justice involves fair process, free from bias or apparent bias.)

Decision

Article 6(1)
The court considered that the office of Board member, with the rights and duties that entails, constitutes civil rights within the meaning of Article 6(1) of the Convention. Membership was a matter of public service, unpaid and voluntary. It was not a right. Rights were of the Board collectively and not of any individual member of it.

Article 11
The court found that the purpose of Article 11 related to membership of trade unions. Removal from the board in no way inhibited upon this right.

Fair Process
The court noted that Mr Laverie did not argue at any point that he should be treated any differently from any other member of the board. The board had been given opportunity to express their views and they did so, collectively. Mr Laverie associated himself with the views expressed.

Having considered the Board’s response, the Cabinet Secretary was minded to order removal. Due process was followed thereafter, including a Statement of Reasons by the Scottish Ministers.

Reasonableness
Against the factual matrix, the court was not prepared to say that the decision to remove the whole board was irrational. At paragraph 56 of his decision, Lord Clark said:
“The simple reality is that those who serve on boards of management of this kind, which have important public responsibilities and duties, must recognise that they expose themselves to collective responsibility for the board’s performance. That is repeatedly made clear in the governance and constitutional documents and the legislation provides that removal can be a consequence of mismanagement. The key themes of the petitioner’s complaints – that no account was taken of his individual responsibility and that he was not shown evidence of his individual failings – are misconceived.”

At paragraph 58 he said:
“The decision of the Cabinet Secretary to remove the board members was entirely within the range of reasonable responses under the statutory provisions. The petitioner’s suggestion of, in effect, “tipping-off” members to allow them to resign would evade the very purposes of the legislation. The immediate bringing into effect of the Order does not display any wrong or vindictive motive by the Cabinet Secretary.”

Outcome
Mr Laverie’s challenge was dismissed.

Comment
When it comes to governance of the College, you are your brother’s keeper. You are also the Chair’s. You may not be the Principal’s, because the Board govern him. Failure by the Principal is a matter of his employment, dealt with by the laws surrounding that.

Members of the Board are all responsible for the decisions taken and not taken by the Board. Therefore, within the appropriate forums, each member ought to raise any concerns, make any remarks, or express any views, that he feels are apt (within the law), even if other members disagree. There should be no uneasiness about this.

Good governance is about guidance on the one hand and holding to account on the other. Without challenge, conduct or the omission of conduct, can continue unhindered. A Board member’s individual responsibility is to challenge and the collective responsibility is reach a common way forward, within the law.

If in doubt, the board should not flinch at seeking outside expert opinion.

If a member disagrees with the common view, that disagreement should be noted, preferably in minutes. If the disagreement is not recorded, the member should put it on record, perhaps by insisting upon amendment of the minutes.

The very fact that disagreement has occurred demonstrates that strategy is being considered and meaningful decisions taken. Disagreement is not a bad thing. Conflict can drive change for the better.

These views may not at first sound melodic to the ears of the Chair. He may see encouragement of disharmony and of hindrances to the vision for development that he holds so dear. On the contrary, a chorus of voices produces great harmony. A robust membership is to the pleasure of the Chair, because, through challenge, he can be assured that his vision is best developed and implemented.

In the case of Mr Laverie, perhaps he and other members should have challenged the decision to suspend the principal. They ought to have insisted upon sight of the underlying legal advice. It was as much theirs as it was the Chair’s. And Mr Laverie, if he disagreed with the course followed, or if he saw his circumstances as distinguishable from the collective, he ought to have expressed this. Ultimately he ought to have resigned, before it was too late.

A. Ross Taylor
Principal Solicitor
Taylor Law Ltd
25 April 2017

Mr Taylor is a Governor of Fife College.

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