CO/9699/2010 
Neutral Citation Number: [2010] EWHC 3325 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday 25th November 2010
 
B e f o r e: 

HIS HONOUR JUDGE SYCAMORE
(Sitting as a Deputy High Court Judge)
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Between: 

THE QUEEN ON THE APPLICATION OF THE PARENT GOVERNORS OF THE CARDINAL VAUGHAN MEMORIAL SCHOOL
(John Murphy, Jacqueline Knight, James King, Andrzej Rumun and Jan Zajaczkowski) 
Claimants

v 

(1) ROMAN CATHOLIC ARCHBISHOP OF WESTMINSTER
(2) THE WESTMINSTER ROMAN CATHOLIC DIOCESE TRUSTEE 
Defendants 

(1) THE OTHER MEMBERS OF THE GOVERNING BODY OF THE SCHOOL AS AT 31 AUGUST 2010

(2) THE DEFENDANT'S PROPOSED APPOINTEES TO THE GOVERNING BODY OF THE SCHOOL WITH EFFECT FROM 1 SEPTEMBER 2010 
(The Reverend Father Michael Johnson, Miss Bwalya Kanga, Mr Rory O'Hare and Mr Paul Barber) 
Interested Parties
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Mr Peter Oldham QC (instructed by Ambrose Appelbe) appeared on behalf of the Claimants
Ms Francesca Quint (instructed by Winckworth Sherwood) appeared on behalf of the Defendants
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J U D G M E N T
1.	HIS HONOUR JUDGE SYCAMORE:  The claimants are the Parent Governors of the Cardinal Vaughan Memorial School ("The School"), which is a voluntary aided maintained school of which the defendants, now named by agreement of the parties as the Roman Catholic Archbishop of Westminster and the Westminster Roman Catholic Diocese Trustee, are the trustee of the foundation which owns the site and premises of the school and as such have the power to appoint eleven governors.  
2.	In these proceedings the claimants seek permission to challenge the decision of the defendants dated 2 September 2010, agreeing the appointment of four new foundation governors.  
3.	Proceedings were issued on 13 September 2010 and were considered on the papers by Mr CMG Ockelton, sitting as a Deputy High Court Judge, on 14 September 2010.  He directed a rolled‑up hearing and ordered, inter alia, first that the defendants' decision to appoint the new governors be stayed until the determination of this claim or further order, and second, that there be no meeting of the governors of the school until determination of this claim or further order.  
4.	The matter was listed before me on Tuesday 23 November 2010 when I heard argument.  I indicated that I would deliver an oral judgment this morning (25 November).  There is a degree of urgency given the stays to which I have already referred.  In particular, I understand that the Headmaster's post is currently vacant and that an advertisement has been placed.  It is therefore important that the governors are able to meet and continue to conduct the business of the school.  For those reasons I have not delayed matters by preparing a draft judgment for circulation and comment before hand‑down.  
5.	I grant permission and proceed now to deal with the substantive claim.
6.	The school is a Roman Catholic voluntary aided secondary school for boys and I will, in a moment, look briefly at the structure for appointment of governors.  
7.	There are essentially two issues raised by the claimants in these proceedings: first, whether two foundation governors at the time of appointment have to be parents of children currently registered at the school, where it is reasonably practicable for the defendants to appoint them.  This, say the claimants, in terms, affects the validity of any two of the appointments proposed in the decision letter of 2 September 2010.  Second, whether it was lawful for the defendants to appoint one of their own employees, Mr Paul Barber, as a governor.  
8.	The background was that on 2 September 2010 the defendants gave notice to take effect on 1 September 2010 that it would not be renewing the term of three of its appointed governors and that it would be appointing four new governors, including Mr Paul Barber, to whom I have already referred, who is the Director of Education for the Diocese.  I will deal with the two issues separately.  
9.	First, the failure to appoint two current parents as foundation governors.  It was common ground that Regulation 18 of the School Governance (Constitution) (England) Regulations 2007 ("the 2007 Regulations") apply to this school.  It provides:
"Voluntary aided schools 
18(1) The governing body of a voluntary aided school is to comprise the following:
 (a) at least one but no more than one tenth LEA governors;
 (b) at least two but no more than one third staff governors;
 (c) at least one parent governor;
 (d) such number of foundation governors as out number all the other governors listed in sub‑paragraphs (a) to (c) by two; and 
 (e) such number of foundation governors who are eligible for election or appointment as parent governors that, when they are counted with the parent governors, comprise one third or more of the total membership of the governing body."
10.	There is thus a requirement for a number of foundation governors "who are eligible for election or appointment as parent governors."  
11.	Regulation 8 defines "Foundation governors" in the following way: 
"8(1) In these Regulations—
 “foundation governor” means a person who is appointed as a governor otherwise than by the 
local education authority and who—
 (a) is appointed for the purposes of securing that the character of the school, including where the school has a particular religious character, such religious character, is preserved and developed, and 
 (b) where the school has a foundation, is appointed for the purpose of securing that the school is conducted in accordance with the foundation’s governing documents, including where appropriate, any trust deed relating to the school..." 
12.	Regulation 12 provides that the detailed composition of the governing body is to be set out in the school's Instrument of Government.  This school's Instrument of Government provides at paragraph 5: 
"The Governing Body shall consist of twenty governors of which there shall be:
 (a) 11 foundation governors (of whom, two shall, at the time of their appointment, be eligible for election or appointment as parent governors); 
 (b) 5 parent governors; 
 (c) 1 LEA Governor; 
 (d) 3 staff governors." 
13.	The Instrument of Government goes on to provide: 
"Foundation governors shall be appointed and may be removed by the Archbishop of Westminster (or any other person exercising Ordinary jurisdiction on his behalf).  
7(a) The holder of the following office shall be the foundation governor ex‑officio: The Archbishop of Westminster or his nominee ... 
8  The term of office for every foundation governor shall terminate on 31st August following the third   anniversary of the date of appointment." 
14.	So it is necessary to look to Schedule 1 of the 2007 Regulations, which deals with eligibility for election or appointment of parent governors.  
15.	Paragraph 8 deals with the situation where there is to be an election, and makes it clear that, in those circumstances, the individual must be a parent of a then registered pupil at the school.  
"8.  Where a vacancy for a parent governor arises, the appropriate authority must take such steps as are reasonably practicable to secure that every person who is known to them to be a parent of a registered pupil at the school ... is:  
a) informed of the vacancy and that it is to be filled by election;
b) informed that he is entitled to stand as a candidate and vote in the election; and
c) given the opportunity so to do."
16.	Paragraph 9 provides for the situation where there is to be an appointment by the Governors.  Para 9a) which is relevant to this school provides:
"The number of parent governors required must be made up by parent governors appointed by the governing body, if one or more vacancies for parent governors arises and either ..."
Three possible scenarios are then set out.  The first is that the number of parents standing for election is less than the number of vacancies.  The second and third possibilities do not apply here.  One relates to a school where there are boarders (I do not believe that is the case here), and the other is in relation to community special or foundation special schools established in a hospital. 
17.	Paragraph 10, which is essentially a fall‑back provision, in the event of there being insufficient candidates for election, in terms increases the categories of eligible individuals where a vacancy is to be filled by appointment rather than by election.  Paragraph 10 reads as follows: 
"10(1) Except where paragraph 11 applies, the governing body must appoint as a parent governor—
 (a) a parent of a registered pupil at the school;
 (b) a parent of a former registered pupil at the school; or 
 (c) a parent of a child under or of compulsory school age.
 (2) The governing body may only appoint a person referred to in sub‑paragraph (1)(b) or (c) if it 
is not reasonably practicable to appoint a person referred to in the sub‑paragraph which immediately precedes it."
18.	It is common ground that none of the four foundation governors identified in the defendants' decision letter of 2 September 2010 fell into any of these categories.  
19.	It is also common ground that, of the current governors, two existing foundation governors were, at the time of their appointment as foundation governors, eligible for election or appointment as parent governors.  First, Mr Ike Offiah, appointed on 15 September 2009, qualified under paragraph 10(1)(c), and second, Mrs Mary Waplington, appointed on 20 October 2009, qualified under paragraph 10(1)(b).  
20.	The claimants' case, put simply, is that, in fulfilling its obligations in Regulation 18(1)(c) and paragraph 5(a) of the Instrument of Government, the defendants must respect the totality of the cascading options as to the appointment of parent governors: that is to say, by appointing a current parent unless not practicable so to do, in which case it can have recourse to the categories defined in paragraph 10(1)(b) and (c).  
21.	The defendants maintain that it is eligibility at the date of appointment which is crucial, and that as there were already two foundation governors who were so eligible at the time of their appointment (Mr Offiah and Mrs Waplington), it was unnecessary to include any persons so eligible in the decision of 2 September 2010.  
22.	In my judgment, it is necessary to distinguish between on the one hand between the description of those eligible for election or appointment, for which it is necessary to look to Schedule 1, paragraph 8, which is limited to parents of currently registered children, and paragraph 10(1)(a), (b) and (c).  Those are the provisions which deal on the one hand with eligibility and on the other hand the mechanism which must be adopted by the appointing body (in this case the governors) when exercising the power of appointment in circumstances where it has not been possible to fill a vacancy by election.  In those circumstances, paragraph 10(2) engages, and the governing body must give priority to a candidate who is a parent of a currently registered pupil at the school over persons in categories 10(1)(b) and (c).  Thus, in my judgment, paragraph 10(2) relates to the obligation of the governing body in exercising its power of appointment, and is quite distinct from the definition of those eligible to be considered for appointment.  
23.	The requirement is simply stated in the Instrument of Government at 5(a): "11 foundation governors of whom, two shall, at the time of their appointment, be eligible for election or appointment as parent governors."  There is a separate provision at 5(b) for a different category of governor, five parent governors.  They are a separate and distinct category.  
24.	There is nothing to support the contention that the body of foundation governors must always contain two current parents.  The words of the Instrument of Government and of the regulations must be given their natural meaning.  
25.	In my judgment, the defendants have fulfilled their obligation, as two of the current foundation governors were eligible for election or appointment as parent governors at the time of their appointment.  There was thus no obligation on the defendants to appoint such individuals on the occasion of the decision letter of 2 September 2010.  The appointments were perfectly valid and in accordance with both the Instrument of Government and Regulation 18(1)(c).  In those circumstances, this aspect of the claim fails.
26.	I now turn to issues 2 and 3: whether it was lawful to appoint Paul Barber as a foundation governor.  This essentially falls into two sections: first, whether it was contrary to legal principle to appoint Paul Barber by virtue of his position as an employee of the defendants; and second, breach of equitable principles.  
27.	The Claimants made it clear that it is not their case that no officer of the defendants could be a foundation governor, but that Paul Barber could not be properly appointed because of the particular nature of his duties and his dealings with the school.  
28.	Put briefly, the claimants say, and this is not disputed by the defendants, there have been issues between the school and the Diocese in recent times, summarised in the claimants' skeleton argument as follows:
"13.  There have been great tensions between the Diocese and the school in the recent past.  In particular there have been two major disputes:‑
 (1) In 2009, the Diocese made an objection to the Schools Adjudicator against a number of aspects of the school's admission arrangements.  In particular the Diocese said that the school (which is highly successful and routinely massively oversubscribed) should not apply tests to assess the Catholicity of applicant families in giving admission priority, but should adopt a test of whether the child has been baptised.  The resultant adjudication gives a measure of the depth and breadth of the disagreements.  The Diocese's objections were partially upheld by the Adjudicator..."  
29.	The second matter referred to in the skeleton argument is described thus:  
"(2) On 20th July 2010 solicitors acting for the school sent the Diocese a letter referring to ongoing discussions about what the school alleged was a failure of the trustees properly to administer trust property, namely the freehold at [an address in West London]."
30.	It is accepted that the school's principal contact at the Diocese in respect of these issues has been Mr Paul Barber, who, as I have already observed, is employed by the Diocese as its Director of Education.  In the Adjudication referred to, Mr Barber presented the Diocese's case both in writing and at the oral hearing. 
31.	There is no dispute that his is a very senior position.  I look briefly to the document which sets out in a flowchart his seniority and his key responsibilities, amongst which are providing specialist advice to head teachers, governors and parish priests, responsibility for the support and advice given to religious educators, head teachers and governors, representing and advising the Diocese and trustees.  A number of other duties are also listed.
32.	In essence, say the claimants, Mr Barber, as a foundation governor who is an employee of the Diocese, would be put in an impossible position in which it would be unreasonably difficult for him to discharge duties to both employer and the governing body when disputes of the significance already described arise.  
33.	Added to this, say the claimants, as a senior employee of the Diocese, Mr Barber owes specific duties of loyalty and obedience to his employer, and these are the more stringent because, say the claimants, he is also a fiduciary.  
34.	Mr Oldham QC, for the claimants, relied on extracts from Harvey on Industrial Relations and the case of Nottingham University v Fishel [2001] IRLR 471 in support of these propositions, concluding that an employee in Mr Barber's position must not put himself in a position where his duties to his employer and some other person may conflict.  
35.	The claimants finally challenge the legality of the appointment by relying on his appointment as being in breach of equitable principles, not least because one of his identified duties, as I have already mentioned, is that of "representing and advising the Diocese and the trustees".  The claimants relate this specifically to the dispute between the school and the Diocese and/or trustees over the management of the trust already referred to by me in this judgment. 
36.	Again, say the claimants, he, as the individual advising the trustees, must not put himself in a position which creates a conflict between that role and his role as a foundation Governor, and that as such he would act in breach of equitable principles.  
37.	Finally, say the claimants, the history demonstrates that the Diocese puts pressure on its foundation governors to accept the Diocese's line on various issues, and as such Mr Barber as an employee would find himself in a yet more difficult position.  
38.	The defendants acknowledge that there may be circumstances in which Mr Barber's position may not be an easy one, and in his statement dated 21 September 2010 he recognises that possibility, saying: 
"11.  There appears to be an inbuilt assumption that because I am an employee of the defendant, I would be unable to act independently of the Diocese if my own conclusion did not accord with their view.  I do not believe that to be the case.  It also presupposes that there will be a conflict between the governors and the school's trustee.  That is not necessarily the case.  There will be a wide number of areas where the interests of the school and the interests of the trustee will be the same interest and will coincide, not least because the objects of the school as set out in its trusts are identical to those of the trustees ... 
14.  if an instance arose where there was a potential conflict between my position as an employee of the Defendant and my position as a foundation Governor, I would declare that interest and would not vote on that particular issue.  This of course is the required approach to take in such circumstances and is in accordance with the School Governance Regulations."
39.	The defendants add that Monsignor Curry, a serving parish priest within the Diocese, is a foundation governor as a nominee of the Archbishop and has been since his appointment on 12 September 2008. The defendants acknowledge that he is not an employee so that none of the legal obligations referred to earlier apply to him.   He has provided a statement and recognises that he is not a delegate of the Archbishop and explains how he deals with situations where there may be potential for a conflict of interest.  Looking as his statement, dated 20 September 2010, for example he says: 
"7. ... Nevertheless, as the Archbishop's nominee, it is me, and not the Archbishop who holds the office of foundation governor.  I am therefore under an obligation to make my own mind up about decisions I am called upon to make relating to governance of the school.  In other words, I consider myself to be a representative of the Archbishop, not his delegate ..."
"9.  If such a decision risked breaching a serious legal or moral obligation, I might feel obliged to consider my position as a governor.  If the difference were one of policy, I accept that in common with all governors, I would be bound by the collective decision reached by the governing body ...  
11.  In circumstances where a personal conflict of interest arose on any particular matter, I am clear that I would be under an obligation to declare it and to withdraw from the debating or voting on the point in question.  Such a conflict has not arisen in practice..."   
40.	There are more likely, say the defendants, to be more areas of agreement than disagreement, and Mr Barber's experience from his role as Director of Education will enable him to bring useful and relevant knowledge and experience to the governing body.  There is, say the defendants, no reason to expect that Mr Barber would act other than in good faith in his role as a foundation governor.  
41.	I look now to the law.  Both parties accept that a foundation governor is not a delegate of the foundation by whom he or she is appointed; that that is understood to be the case is clear from the statement of Mr Barber and Monsignor Curry.  Authority for this proposition can be found in the decision of the Court of Appeal in R v Trustees of the Catholic Diocese of Westminster, ex parte Andrews [1990] COD 25, a case which related to this same school, applying to foundation governors, and their relationship to the foundation body, the rules applied by the House of Lords in R v ILEA ex parte Brunyate [1989] 1 WLR 542, dealing with governors and their relationship with the Local Education Authority.  In Brunyate, it was said by Lord Bridge: 
"It is rightly and inevitably conceded by Mr Goudie QC, for the ILEA, that governors are in no sense delegates of the authority by whom they were appointed and cannot be required to vote on any particular matter as the authority wishes." 
42.	Both Brunyate and Andrews were concerned with the removal of governors during their term of appointment.  Indeed, Lord Bridge expressly rejected the submission by which it was sought to draw an analogy between the decision of a local education authority not to reappoint a governor on the expiry of his or her term and a decision to remove him or her at any time during the term, saying this: 
"... The authority has a wholly unfettered discretion as to whom it will appoint or reappoint. This is clearly correct ... Precisely because the decision whether or not to reappoint is unfettered and unchallengeable, whereas the discretion to remove under section 21 must be exercised on lawful grounds, there is no analogy between the two situations..."
43.	It follows that provided the power is exercised in good faith, the discretion of the appointing body is unfettered in relation to appointment and reappointment.  
44.	In the circumstances of this case, as I have already observed, the Archbishop is represented on the body of foundation governors by his nominee, Monsignor Curry.  Both he and Mr Barber in their statements recognise that it is appropriate to manage any conflicts of interest and duty and conflicts of loyalty in a structured manner and in accordance with established good practice.  
45.	It is not suggested that Mr Barber would not do otherwise than act in accordance with good practice in his role as a foundation governor.  
46.	Mr Oldham QC for the claimants argued that the unfettered discretion must be constrained by Wednesbury principles and is not limited to the absence of good faith.  I do not accept that proposition.  A clear distinction is drawn between the obligations of the appointing body in removing a governor and those which apply in appointing or reappointing.  
47.	I add that had it been necessary to consider whether the appointment was Wednesbury unreasonable, I would have concluded that it was not. In those circumstances a challenge on the basis of irrationality would have failed.  The claimants accept that it was not their case that no officer or employee of the defendants could be a foundation governor, rather that Mr Barber, because of his senior position and his dealings with the school, could not properly be appointed.  
48.	Given the accepted position as to the nature and duties of a foundation governor, that is to say,  an individual who is not a delegate of the foundation, and the good practice which is commonly adopted by others in similar circumstances where conflicts might arise, and the knowledge and experience which Mr Barber would bring to the governing body, there is nothing to suggest that he would undertake his duties otherwise than in good faith.
49.	It could not be said, had it been necessary to consider the point, that the decision to appoint him was irrational or Wednesbury unreasonable.  As I have observed, however, my ruling on this matter is that the discretion is one which is in any event unfettered.  
50.	In my judgment, absent any evidence of bad faith, and it is not suggested by the claimants that the Defendants acted otherwise than in good faith in appointing Mr Barber as a foundation governor, the appointment of Mr Barber was duly and properly made by the exercise of an unfettered discretion on behalf of the defendants.  
51.	In those circumstances, the claimants fail in respect of the second and third grounds which I have identified.  There is thus nothing which is susceptible to challenge by way of judicial review, and in those circumstances the claim is dismissed.
52.	MS QUINT:  I am very much obliged on behalf of the defendants, my Lord, for that decision, which will be extremely helpful to the Diocese in dealing with its many other schools, as well as in its future relationship with the Cardinal Vaughan School.  I would ask for the defendants' costs to be paid by the claimants.
53.	HIS HONOUR JUDGE SYCAMORE:  Yes.  Mr Oldham? 
54.	MR OLDHAM:  My Lord, I cannot resist a costs order.  We say the costs should be assessed if not agreed on the standard basis.
55.	HIS HONOUR JUDGE SYCAMORE:  There is a summary.
56.	MR OLDHAM:  There is, my Lord.
57.	MS QUINT:  There is a schedule of costs. 
58.	HIS HONOUR JUDGE SYCAMORE:  I have seen it.
59.	MR OLDHAM:  My Lord, this is a two‑day case and therefore, as your Lordship knows, one would not normally expect a summary assessment.  My Lord, your Lordship would have seen the sums in question are very significant.
60.	HIS HONOUR JUDGE SYCAMORE:  I have to say my instinctive reaction is that this is more a matter for detailed assessment if you cannot agree.  The figures do not lend themselves to a summary assessment in an otherwise busy list.  I think it is something you ought to reflect on and, if necessary, refer it to a costs Judge.
61.	MR OLDHAM:  My Lord, unless my learned friend has any other matter, I do have an application to make, which is an application for permission to appeal.  If I could outline the grounds briefly: on the parent governor point, my Lord, we say this is a novel point of statutory construction.  It is a point of statutory construction, as your Lordship knows, not just a question of this school's Instrument of Government, because it derives from the 2007 Regulations, and it potentially affects, it seems to me, my Lord, thousands of schools literally on the numbers of voluntary schools that we know do exist.  
62.	As regards the Mr Barber point, we say that this was a very strongly arguable point on the basis of Brunyate and Andrews.  We say that there is no case about the suitability of appointment of a person to a governing body on the basis we put forward; Brunyate and Andrews being about removal, and that the argument we put forward is really a new argument in that sense, albeit based on dicta in those prior cases.  
63.	Lastly, my Lord, we say that your decision that Wednesbury was not applicable to the decision of the appointing body in deciding who to appoint is a wide‑ranging holding, potentially affecting all public duties of foundation bodies, and therefore is of very wide application.  My Lord, I know your Lordship did not decide this case on that basis because your Lordship went on to find that, in any event, the point would not have been a good one, but nevertheless your Lordship's dictum is a significant one.  On that basis, we seek permission to appeal.  
64.	HIS HONOUR JUDGE SYCAMORE:  Ms Quint? 
65.	MS QUINT:  I would resist that, my Lord.  If I may say so, the judgment was admirably clear and convincing so far as the defendants are concerned, and this matter should be resolved in the interests of the school as soon as possible.  That is something which the defendants sought from the beginning.  If there is to be an appeal, then who knows when it will be possible for the governing body to meet and carry out its duties properly.
66.	MR OLDHAM:  My Lord, on that issue, of course your Lordship will be aware that there are ways of getting round that by having some sort of interim order allowing for the governing body to meet pending any appeal, and I should lastly mention, my Lord, in any event, my learned friend and I will have to get together to provide an order to your Lordship regulating the future conduct, I think, of the governing body in the light of the order made by HHJ Ockelton.  That will have to be discharged in any event.
67.	HIS HONOUR JUDGE SYCAMORE:  I am not satisfied that it is appropriate in these circumstances to give permission to appeal.  I have considered carefully the three distinct points made by Mr Oldham, but I have given a clear judgment and I am not satisfied in those circumstances that the threshold for permission is met.  It may be that an application may be made elsewhere.
68.	MR OLDHAM:  So be it, my Lord, and we too are grateful for your Lordship's speedy judgment, and my learned friend and I will get a form of order to your Lordship through the normal channels, given the fairly extensive order made by HHJ Ockelton.
69.	HIS HONOUR JUDGE SYCAMORE:  Would it be helpful to do that during the course of today?  I am about to hear another matter, but I shall be in the building all day.
70.	MR OLDHAM:  It may be my learned friend and I can do that, and hand it up to you through your associate.
71.	HIS HONOUR JUDGE SYCAMORE:  That would be helpful.  If we need to discuss it at all, I am available.