Chris Sayers: Who governs the governors?

This blog is an edited transcript of a speech delivered by Chris Sayers, Chairman of the University Committee of Chairs and Chair at Northumbria University. This is the first of two speeches we will run on the blog originally delivered at the HEPI / Advance HE Parliamentary Breakfast Seminar, ‘Challenging the Status Quo: Who governs the governors?’ – this took place in February before the current crisis.

Who governs the governors? This is the same question that was posed by Juvenal nearly 2000 years ago, ‘Quis custodiet ipsos custodes’. Who will guard the guards themselves? And unless you want to end up in a recursive cycle of having guards to guard the guards who are guarding the guards, there is only one sensible answer to this question and it is to make sure that you have guards who do not need to be guarded.

For that, they need to be trustworthy and competent and well equipped and able to do their job. The same absolutely applies to university governance and although I believe that universities are generally well governed, we, as their governors, should be very concerned about governance failures anywhere in the sector, as this erodes public and political trust. Every governing body therefore has a responsibility to demonstrate that we are all trustworthy and to ensure that our own houses are well governed.

What do we mean by governance?

Most people’s first thoughts are that it is about compliance and accountability. Holding to account is important, challenging, overseeing, ensuring that management are doing what they need to do to deliver the agreed strategy, ensuring that they are being honest and ethical and operating in the interests of the institution. And it is certainly not management.

This is all traditional stuff, but if this is all it is then it can easily put the management and the governing body at odds and it is very easy for that to degenerate into a power struggle which helps nobody. The word ‘governance’ comes from the Greek word ‘to steer’ and in our context, that means also being the facilitating process of setting the right strategy, rather than just monitoring it.

So possibly a more enlightened view would be that the role of the governing body is also to enable the conditions and culture that will give the Executive the best possible chance to succeed – through active and visible support when things are tough, mentoring, coaching, bringing different skill sets and experience to the table and not confining this to the Board room, encouraging, making sure that we are understanding risk and taking it appropriately, but also ensuring that we learn from mistakes… it is generally called stewardship, with the governing body and the Executive both being a part of a leadership dynamic. At its very best this is a genuine partnership between Executive and Board – not a cosy relationship but certainly a close one – still challenging, still uncomfortable at times but effective because it is built on mutual trust and respect and a common objective: the success of the institution.

Most chairs have already chaired Boards in other sectors, so they are not inexperienced or naïve, but what they often do not have is experience of how universities work and that can be a bit of a rude shock. So, when we find a situation where governance is not working well, then the cause is likely to be quite complex and there are four broad reasons why governance could / might go wrong:

1. There is something very wrong with the structure and processes. I do not think that this is particularly common in higher education (other than the consistency of information that they receive) because the guidance on governance in higher education is pretty robust, but if people do not follow it, or follow it badly, then things are likely to go wrong.
2. The governors do not know the basics of how to govern. Again, I am not sure that this is true in many cases, most of the time we have very experienced chairs and governor and they get lots of development support from the likes of the Committee of University Chairs and Advance HE.
3. Governors do know what to do but for some reason they do not do, or they stop doing what they should be doing. It is possible that a Board can get captured by a strong Vice-Chancellor or, for whatever reason, Boards start turning a blind eye to things that they know are wrong, or worse, they actively or unconsciously collude with the wrong behaviour. What is needed is the strength of character and confidence of independent members to challenge and it is important also to recognise here the potential role of an authoritative, empowered Secretary to the Board.
4. Governors know what they need to do but they find that they cannot do it; it becomes very difficult to enforce what they view as being the right things to do. Again, this certainly happens and I do not think that it is well enough understood. So, what stops them? Sometimes it is the rebuff of the mystique of higher education – ‘that’s not the way it works in universities’. Or it could be an underlying anxiety in a successful or high reputation institution not to disrupt something that is delivering, it could be the sheer weight of the compliance agenda, it could be insufficient support from the secretariat function, or quite frankly it could be that they are at loggerheads with the Vice Chancellor and exec and they do not know how to change that situation.

So, with all that in mind, who should govern a governing body of an autonomous institution? We have multiple stakeholders to whom we are or should be answerable:

1. We need to demonstrate to the Office for Students that we are compliant with the registration conditions;
2. We have a responsibility to our students to ensure that they get the experience and opportunities that we promised them;
3. We have a responsibility to our staff to ensure that they can do the job to the best of their capability; and
4. We have a responsibility to taxpayers and the government to make the best use of the resources that are given to us.

So, Boards must be more transparent so that all our stakeholders know the decisions that we take and why, because transparency is effective in ensuring good understanding and defensible decisions. There is even an argument that we should consider having some sort of annual public meeting where we can meet in front of all our stakeholders.

But what about the wider scope of governance stewardship which is important because there is still a need to raise the effectiveness of the relationship between Boards and Executives. We have very different roles and it is important that both are done well. At its essence, this is a relationship between Power and Authority, where Authority is having the right to direct others and ask them to do things which they would not otherwise do and Power is having the resources to influence behaviour and to get people to do things that they would not otherwise do.

Authority needs to be legitimate, Power should be directed, or steered.

In universities, a Board’s particular authority is exercised by the Chair on behalf of the Board, but it has to be recognised and accepted by the Vice-Chancellor and the Executive in the best interest of the institution.

Ultimate authority may rest with the Board but it must be exercised subtly by influencing how the Vice-Chancellor’s power is used to deliver the greatest benefit for the institution, which is why this should always be a collaboration rather than a struggle for primacy. Pivotal to success is the relationship between Chair and Vice-Chancellor. When it works, it is great and I genuinely think that that is the case most of the time. But not always, and I am not implying that the fault only lies in one direction – for every discussion I have had with a Vice-Chancellor who says that their Board does not add value, I have had a conversation with a Chair who says their Vice-Chancellor does not listen to them.

Sadly there are situations where a Vice-Chancellor does not accept or respect the authority of the Board, and there may well be perfectly reasonable justification for this, but it could also be that the Board are trying to change what they regard as unacceptable behaviour, which is their right. In that particular case, you would think that the outcome would be obvious. Authority should trump Power – and in most other environments it would. But when this has happened in higher education it is always very messy and not clean cut. The reality is that the Vice-Chancellor has almost all of the power, can direct many more resources and on top of that, as accountable officer, has a much more direct access route to the Office for Students. It may seem strange that the Chair and Board have very few of these levers at their disposal but that is the reality. Of course, they have the nuclear option of dismissal of the Vice-Chancellor – but given the complexity and challenge of the Vice-Chancellor role and the constraints of employment law, this can get very messy and expensive. If a Board finds itself ignored then there is a real problem and if it continues then either it means that the Board is not confident enough to do something about it or that the Chair is losing the full support of their Board. Without that they can quickly find themselves isolated.

When such an impasse happens, experience shows that there is rarely a winner and everyone loses – especially the institution – because if the Executive resents what they see as interference by the Board, or feels under pressure, then it is exceptionally easy to undermine the position of the Board through claiming their incompetence, or that they are stepping over the line, or worse.

I think that part of the problem may be that the authority of the governing body is not actually well-understood – not by students, not generally by staff, certainly not outside of higher education and possibly not enough even by all Executives. It is that lack of visibility which can create a weak platform.

I am not claiming that all Boards are perfect, far from it, but we do have an essential job to do. In this environment where considerably more responsibility is being placed on governors, it is worth thinking about the need for a corresponding reinforcement and support of the authority that they need to be able to do their job. So, who can help Boards of governors if things are potentially going off track? Office for Students? No, it is not really their job. The Committee of University Chairs and Advance HE, can and do help from a position of encouraging best practice. Governance reviews and peer-to-peer mentoring are very valuable to help Boards be more self-aware. But that is not the same as governance.

I come back to my starting point that we all have a responsibility to demonstrate that we are all trustworthy and doing a good job.

Therefore, my reflection on this is that at the end of the day, we have to hold ourselves to account. If push comes to shove, we need to step up and take control when it needs to be done, otherwise we will continue to see some of the news stories that we have seen over the last few years.

To be able to do this, Boards do need to demonstrate their competence and their willingness to appoint alternative execs, also by being able to appoint non-execs with appropriate higher education expertise among their independent members, which few institutions currently have much of. Of course, it would also be helpful if there was better messaging from the very top, spelling out why governance is important alongside support for Boards when they are trying to make difficult decisions. But actually the responsibility ultimately sits with the governing bodies themselves. If we want to remain autonomous, we have to take full responsibility and not duck it when things get tough.