Neutral Citation Number: [2011] EWCA Civ 433
Case No: C1/2010/2944
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE 	QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
HHJ SYCAMORE
CO/9699/2010
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/04/2011
Before :

LORD JUSTICE RIX
LADY JUSTICE JANET SMITH
and
SIR RICHARD BUXTON
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Between :

	THE QUEEN ON THE APPLICATION OF THE PARENT GOVERNORS OF THE CARDINAL VAUGHAN MEMORIAL SCHOOL	Appellant	
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	HIS GRACE THE ARCHBISHOP OF WESTMINSTER
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WESTMINSTER ROMAN CATHOLIC DIOCESE TRUSTEE	
Respondents	

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Mr Peter Oldham QC (instructed by Lock & Marlborough) for the Appellant
Ms Francesca Quint (instructed by Winckworth Sherwood LLP) for the Respondent

Hearing date : Wednesday 9 March
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Judgment

Sir Richard Buxton : 

1.	In finalising the text that follows I have had the benefit of seeing in draft the judgments to be delivered by Rix and Janet Smith LJJ, and I make respectful reference to those judgments in relation to some particular issues.
This case and its background
2.	This case concerns whether His Grace the Archbishop of Westminster or his delegate, on behalf of the Westminster Diocese, has acted lawfully in appointments that he has made to the Governing body of the Cardinal Vaughan Memorial School, a Voluntary Aided Roman Catholic secondary comprehensive school in West London.   The evidence shows that Cardinal Vaughan, as I will refer to the school, is very successful and much over-subscribed, with results that regularly exceed what would statistically be expected from a school with its comprehensive intake.   The case is brought by the Parent Governors of the school.  There is no doubt that they and all of the persons concerned with the disagreements in and related to this case are strongly committed to the teachings of the Catholic Church, and to the outstanding school that is conducted according to those teachings; and in those circumstances it is deplorable that the parties have not succeeded in resolving their differences without the expense, and the drain on public resources, that is contingent on recourse to the secular courts.   
3.	Before turning to the issues that are the subject of this action it is necessary, very briefly, to explain by way of background other disagreements that have arisen between the Governing body of the school and the Diocese.
4.	First, the Governing body has questioned the handling by the Diocese of a property investment that the Governing body considers to be part of the trust property of the school.  Second, and of more direct impact on this case, there has been a substantial policy dispute relating to the test that should be applied to ensure, as both parties wish, and as is lawful under the arrangements for Voluntary Aided schools, that the Roman Catholic ethos of the school is maintained in its entry requirements.    The Diocese wished to require only that the child had been baptised as a Roman Catholic, and that his family attend church.  The Governing body wished to use a more elaborate series of tests, including active and not merely passive participation in parish work.  The Diocese was sufficiently concerned by the latter policy to have made an application to the Schools Adjudicator, an office-holder exercising powers under the School Standards and Framework Act 1998, contending that the Governing body’s policy offended against the Admissions Code established (for all maintained schools, and not just for schools with a religious foundation) by section 84 of that Act.  That application was partly successful.  
5.	In September 2010, some nine months after that determination, the term of office of four of the governors appointed by the Diocese expired.   Their terms were not renewed, and four different persons [“the new governors”] were appointed as governors in their place.  No explanation was given to the individuals concerned as to why those steps had been taken, and no explanation has been given to us.   The Diocese’s position is that if it is correct in its legal contentions no further explanation is required.
6.	It is the appointment of the new governors that is contested in these proceedings.   It will therefore be convenient first to set out the legislation that applies to such appointments.
The legislation
7.	Regulation 18 of the School Governance (Constitution) (England) Regulations 2007 makes provision for the composition of the Governing body of Voluntary Aided schools.   It was accepted in argument that the requirements of Regulation 18 are correctly carried into paragraph 5 of the Instrument of Government of Cardinal Vaughan, which provides that 
"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." 
	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).”  
8.	“Foundation Governors” are further explained in Regulation 8, which provides:
"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..."  
9.	Important for this case is the requirement in paragraph 5(a) of the Instrument of Government that, as is required by Regulation 18(1)(e), amongst the 11 Foundation Governors, “two shall, at the time of their appointment, be eligible for election or appointment as Parent Governors”.  It is common ground that to be eligible for election as a Parent Governor a person must be the parent of a pupil currently registered as a pupil at the school.   Appointment, which is done by the Governing body, only arises in limited circumstances, effectively if an election has failed to fill all of the vacancies.  Appointment is addressed in paragraph 10 of Schedule 1 to the Regulations, which gives directions to the Governing body in these terms:
"10(1) Except [in the case of a special school], 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."
The issues
10.	The two issues in this appeal are as follows.  First, the requirement under the Instrument of Government of Cardinal Vaughan that at least two of the Foundation Governors must at the time of their appointment as Foundation Governors also be eligible for election or appointment as Parent Governors.   Until the change of personnel in September 2010 that requirement was fulfilled by two of the Foundation Governors having at the time of their appointment been parents of current pupils, and thus eligible for election as Parent Governors.  The terms of neither of those governors was renewed; and none of the new governors are claimed to have been eligible at the time of their appointment either for election or for appointment as Parent Governors.     It is the Diocese’s case, however, that the Governing body nonetheless still contains two Foundation Governors who supply the requirement in paragraph 5(a).  The Diocese relies on two Foundation Governors appointed before September 2010.  They are a Mr Offiah, a parent of a child of compulsory school age, and thus claimed to be eligible under 10(1)(c); and a Mrs Waplington, a parent of former registered pupil at the school, and thus claimed to be eligible under paragraph 10(1)(b).     
11.	The appellants counter by pointing to paragraph 10(2).   There is no evidence, and it has been no part of the Diocese’s case, that at the date of the appointment of either Mr Offiah or Mrs Waplington as Foundation Governors it was not reasonably practicable to appoint someone who was the parent of a current registered pupil, as paragraph 10(2) requires.  They therefore were not on that date eligible for appointment as Parent Governors, and thus cannot count towards the seven persons so eligible who are required if the Governing body is to be lawfully constituted.  
12.	The second and particular dispute concerns the appointment of a Mr Paul Barber as one of the four new governors.   Mr Barber is the Diocesan Director of Education, with overall responsibility for the Diocese’s educational provision and policy, and indeed in that capacity conducted the case on behalf of Diocese against the Governing body before the Schools Adjudicator.  The appellants contend that because of his obligations as an employee, and indeed in some respects a fiduciary, of the Diocese to act loyally to and in the interests of his employer he will or may not be able to act as a member of, and in the interests of, the Governing body, in any dispute that may arise between it and the Diocese:  it no doubt being the unstated premise of that concern that recent history indicates that such disputes are far from being out of the question.
13.	The judge rejected both of those complaints, which I address in turn.
The appointment of the Foundation Governors
14.	The judge accepted, and as the above summary of the argument demonstrates it was common ground before us, that the substance of the phrase “eligible for appointment as Parent Governors”, that is found in paragraph 18(1)(e) of the Regulations and is reproduced in paragraph 5 of the Cardinal Vaughan Instrument of Government, is to be considered in the context of paragraph 10 of Schedule 1 to the Regulations, set out in paragraph 8 above.    On that agreed assumption, and in deferential disagreement with Rix and Janet Smith LJJ, it seems to me plain that there is a short answer to the first issue in this appeal.
15.	The Diocese has to show that two of its Foundation Governors were, on the date of their appointment as such, also eligible for election or appointment as Parent Governors.  “Eligible” is not defined anywhere in the Regulations, and so we must turn to its normal meaning. The leading definition given by the Oxford English Dictionary is “Fit or proper to be chosen (for an office or position)”.  The question that has to be asked in respect of any governor relied on to fulfil the quota of two is therefore whether, on the date of his appointment by the Archbishop as a Foundation Governor, he was also fit or proper to be chosen by the Governing Body as a Parent Governor.   
16.	Take then, simply as an example, the case of one of the two Foundation Governors now relied on by the Diocese, Mr Offiah.   Mr Offiah was appointed as a Foundation Governor on 15 September 2009.  Was he on that date fit or proper to be chosen by the Governing Body as a Parent Governor?  There can only be one answer to that question.  By the terms of paragraph 10 of Schedule 1 to the Regulations, as (only) a parent of a child of compulsory school age he could only be lawfully appointed by the Governing Body if it was not reasonably practicable to appoint a parent of a current pupil.  Lack of that reasonable practicability on 15 September 2009 has not been demonstrated, or even claimed.  Accordingly, if the Governing Body had on 15 September 2009 appointed Mr Offiah as a Parent Governor it would have been acting unlawfully.   It is in my view impossible to say that a person is eligible, fit or proper to be chosen, for an office if it would be unlawful for the body making the choice to have chosen him for that office.
17.	I of course recognise that that is not how the case appeared to the judge, and is not how it appears to the majority of this court.  I must therefore go on to address the arguments that are thought to point in a different direction from that adopted above.
The structure of paragraph 10
18.	The judge concluded, and it was certainly central to Ms Quint’s argument before us, that the solution was to be found in the particular arrangement of paragraph 10.  The argument was explained by Ms Quint as follows.  
19.	First, there is a difference in meaning and effect between paragraph 10(1) and paragraph 10(2).   Paragraph 10(1) deals with eligibility.   Paragraph 10(2) has nothing to do with eligibility, but rather deals with the procedure to be adopted by a Governing body when appointing Parent Governors from amongst persons eligible under paragraph 10(1).  Thus, paragraph 10(2) addresses how the Governing body must exercise that choice, and places a duty on the Governing body as to how it should exercise that choice.   Since paragraph 10(2) has nothing to do with eligibility, it could not make Mr Offiah and Mrs Waplington ineligible for appointment as Parent Governors, and thus incapable of being the two Foundation Governors relied on by the Diocese, so that it had not been established that at the date of their appointment it was not reasonably practicable to appoint parents of current pupils.
20.	That argument, at first sight attractive, does not respect the actual wording of paragraph 10.  Far from paragraph 10(1) and paragraph 10(2) having different objectives, they are both directed at the Governing body.   Paragraph 10(1) starts “the Governing body must appoint”.   Paragraph 10(2) starts “The Governing body may only appoint”.   Both are stating how the Governing body must discharge its duty.   That would be even more clear if the draftsman had adopted a different arrangement of the paragraph without however in any way changing its meaning.  It would have been entirely possible for the draftsman to have written one clause, say:
The Governing body must appoint as a Parent Governor:
(a) a parent of a registered pupil at the school;
Or, where it is not reasonably practicable to appoint such a parent, then either
(b)  a parent of a former registered pupil at the school; or
(c)  a parent of a child under or of compulsory school age.
That formulation has exactly the same meaning and effect as the present text of paragraph 10.  It provides no support at all for the view that the instruction to the Governing body now in paragraph 10(2) is of an entirely different nature and effect from the instruction now in paragraph 10(1).
21.	I appreciate that that is not the view of Rix and Janet Smith LJJ.  They consider that paragraph 10(2) deals not with eligibility for choice but with the method of choosing by the Governing Body.  The vires for that construction of paragraph 10 is said to be found in section 19(3) of the Education Act 2002:
Regulations may make provision as to –
(a)	the number of governors, or of governors falling within any category,
(b)	the person or persons by whom, and the manner in which, governors are to be elected or appointed,
(c)	eligibility for election or appointment as governors of any category, or for voting in an election of such governors…”.

22.	I have some difficulty with that analysis, because it seems inherently unlikely that the draftsman of paragraph 10 would have moved from the statement of eligibility, authorised by section 19(3)(c), that he made in paragraph 10(1); to a statement of manner of election, authorised by section 19(3)(b), in paragraph 10(2); without giving any indication that that was what he was doing.  However, this difference about the analysis of paragraph 10 does not affect the ultimate issue.  If on 15 September 2009 the Governing Body had appointed Mr Offiah as a Parent Governor it would have been acting unlawfully:  whether because Mr Offiah was unqualified for the post because it had not been demonstrated that it was not reasonably practicable to appoint a current parent; or because although Mr Offiah was so qualified under paragraph 10(1) a rule introduced by paragraph 10(2) as to the manner in which Parent Governors are to be appointed forbade the Governing Body from appointing him unless it could show that it was not reasonably practicable to appoint a current parent.   In either case, because the choice would have been unlawful it would not have been fit or proper for the Governing Body to choose Mr Offiah.  Therefore on either analysis of paragraph 10 he would not have been eligible for appointment.
Complexity
23.	Ms Quint argued that the analysis advanced by the appellants resulted in a somewhat complex exercise for the Archbishop: if that is what the legislation intended, one would expect the requirements to be spelled out more expressly.   I cannot agree.  All that the Archbishop has to ensure is that two of the Foundation Governors also fulfil, at the date of their appointment, the qualification for election or appointment as Parent Governors that is clearly set out in the Regulations.  Indeed, on this point the boot is on the other foot.   If it were the case, as the Diocese contends, that in making that assessment the Archbishop is only obliged to respect part of the obligation of the Governing body in the appointment of Parent Governors that is set out in paragraph 10 of the Schedule, then it is that arrangement that one would expect to be expressly spelled out.   But, far from its being expressly spelled out, elaborate argument is needed in order to maintain that position.
Operational difficulties
24.	It was contended that in two respects the construction advanced by the appellants would cause difficulty for the Archbishop in appointing Foundation Governors, to the extent that it should be assumed that Parliament had not intended that construction.   I address those concerns in turn, while reminding myself that such difficulties would need to be of a significantly high order before they could require a construction different from that to be drawn from the actual words of the legislation.
25.	First, by a Respondent’s Notice it was contended that to place on the  Archbishop, or other foundation in respect of a Voluntary Aided school who seeks to rely on paragraph 10(1)(b) or (c) parents, an obligation to ensure that at the date of their appointment the requirement in paragraph 10(2) had been fulfilled would impose a serious burden of record-keeping, possibly requiring investigation of the circumstances of appointments that had been made many years before.  That fear is very over-stated.   In almost all cases the question will arise at the actual date of appointment, and can easily be investigated (and the outcome recorded): just as the Governing body when making an actual appointment has to investigate that question.   It is only in cases as unusual as the present, when a decision is made to replace currently qualified Foundation Governors with persons who do not have the same qualifications, that it is necessary to have recourse to appointments made in the past.  I cannot think that the construction of the legislation can or should be driven by any assumption that the legislator would have had as his guiding principle a wish to ease the task of a person or body appointing Foundation Governors in very particular and unusual circumstances.
26.	Second, Janet Smith LJ has, with respect, powerfully argued that to limit the Archbishop’s appointment of paragraph 10(1) (b) and (c) candidates to cases where it was not reasonably practicable to appoint a current parent would threaten to make his task unworkable.  That is because the basic requirement or qualification for Foundation Governors, which the Archbishop must respect in making his appointments, is that they should be persons who will preserve and develop the religious character of the school.  If other and detailed qualifications for appointment as Foundation Governors are imposed, the Archbishop might be left with candidates who fulfilled those qualifications, but in his view could not be relied on to preserve and develop the religious character of the school.
27.	This concern was not expressed in evidence by the Archbishop or his advisers, was not part of the pleaded defence, and was not asserted before the judge.  I would hesitate to act on assumptions about the practical effect of the appellants’ construction when those assumptions have, at best, only a very fragile basis in the perception of the people who will be directly affected by that construction.  
28.	Second, it would, with deference, have been implausible if the Archbishop had advanced this argument.  Janet Smith LJ points out that the provisions of paragraph 10 do not apply directly to the appointment of Foundation Governors.  However, the Regulations on any view import those provisions into the process of appointment of Foundation Governors, by requiring the Diocese in two cases to appoint governors who are also eligible to be Parent Governors.  What is otherwise the Archbishop’s unfettered discretion in appointing Foundation Governors is therefore already limited by that statutory requirement.  All that is added to the agreed statutory limitation by the application of paragraph 10(2) is a requirement that if the Archbishop wishes to rely on governors other than current parents he has to demonstrate, just as the Governing Body is required to demonstrate when appointing Parent Governors, that it is not reasonably practicable to appoint current parents.  That requirement does place a limitation on the freedom of action of the Archbishop; but it is not such an additional burden, when read in the context of the limitations that are agreed to exist in any event, as to require it to be assumed that Parliament cannot have intended the rule in paragraph 10(2) to apply when considering the appointment of Foundation Governors.  And as to concerns about the open-endedness or vagueness of “reasonable practicability”, that is the test that, for good or ill, the Regulations themselves have adopted.
29.	It may of course happen, as appears to have occurred in the present case, that the Archbishop cannot find persons eligible as Parent Governors who agree with him on every aspect of school policy.  That, however, is very different from not being able to find persons who are willing to preserve and develop the religious character of the school.   It has never been suggested in the case of the two Foundation Governors who were current parents and whose appointment was not renewed in September 2010 that that was the objection to them; and the appellants were able to point to current parents who had expressed interest in becoming governors, including one, with three sons at the school, who had actually applied to be appointed as a Foundation Governor and whose commitment to the religious mission of the school was manifest.   
Conclusion
30.	With appropriate deference, none of the matters reviewed in paragraphs 18-29 deflect me from the conclusion reached in paragraph 16 above.  On the true construction of the legislation the failure to continue the term of the two Foundation Governors who were current parents, and the appointment in September 2010 of the new governors, has resulted in the overall constitution of the Governing body not complying with the law, as it does not contain two Foundation Governors who have been shown to have been at the date of their appointment eligible for election or appointment as Parent Governors.
The appointment of Mr Barber
31.	It is well established by the decision of the House of Lords in R v ILEA ex p Brunyate [1989]1 WLR 542 that, first, an appointor, such as the Archbishop, has an unfettered discretion, limited only by the statutory requirements discussed earlier in this judgment, as to whom he should appoint as a Foundation Governor; and, second, that a Foundation Governor once appointed is not a delegate of the Archbishop, and cannot be required on any particular matter to vote as the Archbishop wishes.   The appellants do not, and of course could not, challenge those propositions.   Rather, they contend that Mr Barber himself is disqualified to be, alternatively the Archbishop should not have exercised his discretion to appoint him as, a Foundation Governor, because he will in fact be obliged, by his duty of loyalty as an employee or fiduciary, to follow the views if not the dictates of the Archbishop, whether or not that accords with the position of the Governing body or the best interests of the school.
32.	These objections are misconceived.   The duty of loyalty to which appeal is made is not absolute but circumscribed, as the analysis in Harvey on Industrial Relations shown to us by Mr Oldham clearly demonstrated.   In particular, an employee is not obliged to perform any act or to obey any instruction that is unlawful.  Mr Barber would not, therefore, be obliged to, and would appreciate that he should not, act on any indication that amounted in practice to a direction from the Archbishop that he should vote in a particular direction.   And as to what may be the further concern, that Mr Barber owing to his position as Director of Education will have his own agenda to promote Diocesan policy, that is no barrier to appointment as a Foundation Governor.   Within his discretion the Archbishop is entitled to appoint persons who, within the overall mission of the Diocese and the school, are sympathetic to one way of proceeding rather than another.   While we know nothing of his motivation in appointing the new governors, it may well be that he had something of that in mind on that occasion.   Particularly in the circumstances of a Voluntary Aided school that cannot be an objection to the exercise of the appointing power.
33.	Occasions might arise, though one would hope them to be infrequent, where the Governing body, by a majority that did not include Mr Barber, took a position different from that of the Diocese.   That no doubt would have occurred if Mr Barber had been a governor at the time of the admission criteria dispute in 2009-2010.   Mr Barber has filed evidence demonstrating that he is alive to that possibility, and would manage any conflict in a proper way.   What, however, is not required of him, or of any other governor, contrary to what the appellants’ argument seemed at times to suggest, is that, a decision having been taken by the Governing body with which he disagrees for whatever reason, he is therefore required to support that decision or resign.  That undervalues the independence of judgement that all governors bring to their task.   Nor does the possibility of such a situation arising in the future comprehensively disqualify Mr Barber from appointment in the first place.
34.	Like the judge, I do not find it necessary or appropriate to reach a conclusion on the general issue of whether the power of appointment is justiciable in Wednesbury terms, or only on grounds of bad faith; because on the facts of this case it is impossible to contend that the appointment of Mr Barber was Wednesbury unreasonable.
Disposal
35.	I would therefore, I understand in company with the rest of the court, reject the complaint as to the appointment of Mr Barber.  Under the first ground of appeal I would not make the order sought to quash the appointment of two of the new governors, but would simply declare that since 2 September 2010 the Governing body of Cardinal Vaughan has not been constituted according to law.   But as my Lord and my Lady are of a different mind the order of the court will be that the appeal is dismissed.
Lady Justice Smith :

36.	I have read in draft the judgment of Sir Richard Buxton and am grateful to him for his exposition of the facts and the statutory provisions.  I am entirely in agreement with him in respect of the second ground of appeal, that relating to the Archbishop’s appointment to the Governing Body of Mr Paul Barber. I agree with Sir Richard that, in respect of that issue, the appeal should be dismissed. 
37.	In respect of the first issue, however, I have reached a different conclusion. In my judgment, the Archbishop’s appointment of four Foundation Governors in September 2010 was not unlawful because the requirement that two of the Foundation Governors should be persons who, at the time of their appointment, were eligible to be elected or appointed as parent governors was already satisfied by the presence on the Governing Body of Mr Offiah and Mrs Waplington. 
38.	This conclusion depends upon what is meant by the phrase ‘eligible for election or appointment as parent governors’ in Paragraph 5(a) of the Instrument of Government, which reflects the requirement in Regulation 18(1)(e) of the School Governance (Constitution) (England) Regulations 2007 (the Regulations).  
39.	Eligibility is not defined in the Regulations.  The only guidance as to its meaning is found, in the context of the appointment of parent governors by the Governing Body, in paragraph 10 of Schedule 1 to the Regulations, as set out in paragraph 7 of Sir Richard Buxton’s judgment.   As applied to the Instrument of Government of this school, this paragraph establishes the process by which the Governing Body must fill, by appointment, any vacancies in the parent governor cohort which remain after the election process is complete.  It does not deal with the appointment of foundation governors.  The question in this appeal is whether, when appointing a foundation governor who is ‘eligible for election or appointment as a parent governor’, the appointer, in this case the Archbishop, has to comply with the whole of the procedure laid down in paragraph 10 of Schedule 1 or whether it is sufficient if he appoints or has appointed persons who are eligible only in the sense that they fall into one of the three categories identified in paragraph 10(1).  
40.	For completeness, I restate the effect of paragraph 10.  Paragraph 10(1) describes three categories of person who may be appointed as parent governors; these are (a) the parent of a child currently registered at the school, (b) the parent of a former pupil of the school and (c) the parent of a child under or of compulsory school age.  In ordinary parlance one might say that anyone falling within those three categories of person would be eligible to serve as a parent governor, unless, of course, he or she was disqualified for some other reason.  However, the Governing Body, when appointing a parent governor under this provision is not allowed a free choice between persons who fall into one of the three categories but by paragraph 10(2) must first attempt to appoint someone in category (a), the parent of a current pupil. Only if it is not reasonably practicable for it to do so may it turn to category (b) to find a parent governor and only if it is not reasonably practicable to appoint a parent governor from there may it turn to category (c).  
41.	I would accept that, because there is no definition of the term ‘eligible for election or appointment as parent governors’ and because it is necessary to look to paragraph 10 of the Regulations for guidance, either of rival contentions advanced by the parties is tenable.  However, I have come to the conclusion that there is no obligation on the Archbishop to comply with the whole of the paragraph 10 procedure, with its sequential consideration of parents falling into the three categories.  I think that the Archbishop is entitled to choose persons who, in his judgment, will fulfil the functions of a foundation governor (which are in some respects different from those of other governors, including parent governors) and that his freedom of choice is restricted only by the requirement that two of them must be eligible in the sense that they fall within one of the three categories defined in paragraph 10(1).  
42.	I have reached this conclusion for two reasons.  I must admit that the considerations which, on reflection, I have come to regard as determinative were not reasons articulated by the judge; nor were they arguments at the forefront of the respondent’s submissions to this court.  They arose as the result of discussion between counsel and members of the court.  
43.	My two reasons are as follows.  First, the Regulations contain schedules of rules governing the procedures for the election and appointment of every type of governor other than foundation governors.  There are separate schedules relating to parent governors, staff governors, community governors, partnership governors and sponsor governors. But there is no schedule relating to the appointment of foundation governors.  The only control mechanism over the discretion of the appointer of foundation governors is that the appointees must not be specifically disqualified and two of them must be ‘eligible for election or appointment as parent governors’.  Thus, not only do the provisions of paragraph 10 of schedule 1 not apply directly to the appointment of foundation governors but the absence of any schedule specifically relating to foundation governors suggests to me that Parliament did not intend to control the appointment of foundation governors as closely as it intended to control the appointment of other types of governor.  This suggests to me the intention to impose a lighter or more relaxed form of control.  
44.	Second, I do not think it can have been the intention of Parliament that the appointment of a foundation governor should be subject to questions of reasonable practicability.  Indeed, I think that, in appointing a foundation governor, such considerations would be almost unworkable.  
45.	A requirement that something must be done if it is reasonably practicable must be capable of being tested with a reasonable degree of certainty.  If a challenge was mounted to the appointment as a parent governor by the Governing Body of a person who fell within category (b), I think it would fall to the Governing Body to prove that it had not been reasonably practicable to appoint someone from category (a). I do not think that it would be difficult to satisfy that burden of proof.  The duties of a school governor, as set out in section 21 of the Education Act 2002, could be fulfilled by almost any person who is willing to serve and is not specifically disqualified.  The duties of the governor are to join in conducting the school with a view to promoting high standards of educational achievement, to comply with the instrument of government and any trust deed, to promote the well-being of pupils and, in England, to promote community cohesion.  No special qualifications or beliefs or convictions are required.  Of course, to be a school governor, a person must be a fit and proper person in a general sense.   So, for example, a person suffering from a significant mental disorder might not be suitable.  But that kind of consideration apart, any category (a) parent who is willing to serve and is not disqualified is likely to be regarded as suitable for appointment. Therefore it would be relatively straightforward for the Governing Body to decide whether a willing candidate is suitable for appointment or whether it was not reasonably practicable for it to find a category (a) parent to appoint.    
46.	To my mind, the position is quite different when it comes to the appointment of foundation governors.  Foundation governors have additional functions besides those I have mentioned above deriving from section 21 of the Education Act.  In addition, by Regulation 8 of the Regulations: 
“foundation governor” means a person 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 
…..
47.	It follows that, in choosing people to appoint as a foundation governor, the appointer has an additional criterion to satisfy. In the present case, the Archbishop will wish to appoint people who, in his judgment, will preserve and develop the religious character of Cardinal Vaughan Memorial School.  The selection of foundation governors will entail a significant element of discretion to be exercised on the basis of the Archbishop’s judgment.  It will not follow that any category (a) parent who is willing to serve and is not specifically disqualified will, in the Archbishop’s judgment, be suitable for appointment. If the Archbishop is aware of one or more category (a) parents who are willing to serve as foundation governors but he does not think that their attitudes, beliefs or convictions are such that they will preserve and develop the religious character of the school, is he to be obliged to appoint them notwithstanding his judgment that they are not suitable?  Viewed objectively, there were category (a) candidates willing to serve and, objectively, it could be said that it was reasonably practicable for him to appoint them.  Yet to require him to do so would be contrary to his judgment on what are essentially religious or doctrinal matters.  If an appointment were to be challenged, would the Archbishop have to justify his decision not to appoint a particular candidate, for religious or doctrinal reasons? I do not think that Parliament could ever have intended such a consequence.  I think the process involved would be unworkable and highly undesirable. In my judgment, it is nothing to the point that the Archbishop has not put in evidence complaining that it would be difficult or impracticable for him to comply with a requirement of reasonable practicability.  The issue is one of construction of a document (the Instrument of Government) against the background of the relevant statutory provisions, so, in my judgment and in respectful disagreement with Sir Richard Buxton, the views of the Archbishop are not important. 
48.	When making the arrangements for voluntary aided schools, Parliament was careful to ensure that foundation governors were in a majority and, if they were united, could effectively control the decisions of the governing body.  That position of power must have been intended to ensure that the religion or philosophy underlying the foundation would hold sway.  As Sir Richard Buxton recognised in the section of his judgment dealing with the appointment of Mr Paul Barber, the appointer of foundation governors enjoys a wide discretion when making his selection.    In my view, that wide discretion should not be restricted by any possibility that his choice should be scrutinised for the purpose of deciding whether it would have been reasonably practicable for him to choose someone else.   
49.	In my judgment, it was Parliament’s intention to leave the choice of foundation governors very much in the Archbishop’s discretion, with only the ‘light touch’ requirement that two of them should be eligible in the broad sense to be parent governors.  I think that eligibility in the broad sense is defined in paragraph 10(1) of Schedule 1.  Any person who falls within categories (a) (b) or (c) is eligible to be a parent governor.  Therefore Mr Offiah and Mrs Waplington were eligible at the time of their respective appointments. Accordingly, the governing body as constituted after the new appointments in September 2010 was properly constituted.  
50.	For those reasons, I would dismiss the appeal on both issues.  
Lord Justice Rix :

51.	I am indebted to my Lord, Sir Richard Buxton, and to my Lady, Lady Justice Janet Smith, for their judgments, which I have read in draft. I agree with both of them on issue 2, but, as for issue 1, I agree with Janet Smith LJ, and add a judgment of my own as the court is divided. 

52.	I take the view that either construction posited by the parties and discussed by my Lord’s and my Lady’s judgments is a possible construction. But which is preferable and why?

53.	The critical wording is that found in the Instrument of Government, viz 

“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)…”.

In other words the eligibility of the foundation governors for appointment or election as parent governors has to exist as at the time of their appointment as foundation governors. 

54.	It probably does not need saying, but it has to be remembered, that the two “eligible” foundation governors are not parent governors, who are a separate cohort, and they are not in fact elected or appointed as such. Whether therefore such foundation governors ever would have been elected or appointed as parent governors remains entirely moot. 

55.	In that connection it must also be remembered that whereas parent governors are elected by parents with children currently registered as pupils at the school (and must themselves be parents with children currently registered as pupils at the school), or are appointed by the governing body, as to which see below, foundation governors are appointed (and may be removed) under the Instrument of Government by the Archbishop of Westminster (or in his name) (see [7] above).

56.	Para 5 of the Instrument of Government reflects, but also builds on, para 18 of the 2007 Regulations, which regulates the composition of the governing body of a voluntary aided school in terms which requires that body “to comprise” –

“(e) such numbers 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.”

57.	The concept of eligibility is not dealt with as such elsewhere in the 2007 Regulations (or in the Instrument of Government), but para 10(1) of Schedule 1 to the 2007 Regulations makes it clear that, whatever be the import of para 10(2), a parent governor must be either the parent of a registered pupil (whom, by way of transferred epithet, I will call a “current” parent), or the parent of a former registered pupil (whom I will call a “former” parent), or the parent of a child under or of compulsory school age (whom I will call a “potential” parent). 

58.	In theory, a foundation governor could be appointed when he or she is none of those things, but could become a (potential) parent in the course of time. I do not see why such a parent is not, as of the birth of his or her child, a potential parent and, subject to the issue in this appeal relating to para 10(2), “eligible for…appointment as parent governors”. Similarly, a foundation governor may start life upon his or her appointment as a potential parent but may in time become a current parent. I do not see why such a parent does not become both a current parent and thus, even on the appellants’ construction of the disputed para 10(2), on any view “eligible for…appointment as parent governors” as of that time. Similarly it follows that in the (probably unforeseen and tragic case) of a foundation governor suffering the death of his or her only child in circumstances where that child has never been a registered pupil of the school, that foundation governor would cease to be “eligible…for appointment” for he or she is neither a current, former or potential parent. Para 18(1)(e) of Schedule 1 says “are eligible”, not “were as of the time of their appointment” eligible. 

59.	Only para 5 of the Instrument of Government makes it clear that the test of what it is to be an eligible parent governor for these purposes need only be met “at the time of their appointment”, and that nothing that happens thereafter affects the status of eligibility then in place. Such a foundation governor will always thereafter, during the period of his or her appointment (essentially a three year period, but there may be a further appointment), be counted as “eligible”. 

60.	Thus the Instrument of Government’s additional or altered wording – “shall, at the time of their appointment” – clarifies, but also restricts, the more general language of the regulation, which only seems to me to require that the “eligible” foundation governors (I shall refer to foundation governors who are “eligible” to be parent governors as “eligible” governors) to be so eligible from time to time. 

61.	It may be noted that regulation 4 of the 2007 Regulations, in defining the meaning of a parent governor as, and restricting the meaning of that term to, either “a person who is elected in accordance with paragraphs 4 to 8 as a governor by parents of registered pupils at the school and is himself such a parent at the time when he is elected” or to “a person appointed as a parent governor in accordance with paragraphs 9 to 11 of Schedule 1”, specifically goes on to declare:

“(3) A person is not disqualified from continuing to hold office as a parent governor when he ceases to be a parent of a registered pupil at the school or to fulfil any of the requirements set out in paragraphs 10 and 11 of Schedule 1 (as the case may be) unless he is otherwise disqualified under these Regulations.”

62.	Thus regulation 4 makes it abundantly clear, both by the expressions “such a parent at the time when he is elected” and “appointed as a parent governor” in regulation 4(1), and by the whole of regulation 4(3), that the status of parent governor, whether elected or appointed, is fixed at the time of election or appointment (subject to subsequent disqualification). However, there is no such language deployed in regulation 18(1)(e) (as distinct from para 5 of the Instrument of Government) in relation to the existence within the cohort of foundation governors of “eligible” parents. That it seems to me goes to confirm my understanding of the expression “who are eligible for election or appointment” in regulation 18(1)(e) as relating to foundation governors who “are” so eligible from time to time. 

63.	I have already pointed out that the 2007 Regulations do not use the term “eligible” or “eligibility” to define those who are to be regarded as “eligible for election or appointment as parent governors”. Neither does the Instrument of Government. (However, section 19 of the Education Act 2002, pursuant to which the 2007 Regulations were made, does refer to eligibility, see below.) The question therefore arises as to what defines such eligibility. That is necessarily a matter of interpretation. It is reasonably plain, nevertheless, that certain at least of the provisions of the Regulations and their Schedule 1 define eligibility. Thus provisions relating to qualification and disqualification must be regarded as affecting eligibility (see regulation 4 and Schedule 6). For instance, “no person is qualified” unless he is 18 or over “at the date of his election or appointment” (para 1(2) of schedule 6). A bankrupt cannot hold or continue to hold office as a governor (ibid para 6). However, those qualifications and disqualifications are general between all kinds of governors. More to the point, a person cannot be elected as a parent governor unless he or she is a current parent. That, as it seems to me, is a requirement that goes to eligibility. So also is the requirement that for a person to be appointed a parent governor he or she must be a parent of some kind, whether current, former or potential (Schedule 1’s para 10(1)).

64.	It is in these circumstances that the question arises whether, for the purposes of the roll-call of foundation governors, such a governor can count as “eligible for…appointment” as a parent governor if he was a former or potential parent, rather than a current parent, as at the date of his appointment. I say “for the purposes of the roll-call of foundation governors”, for the question arises irrespective of who may be appointed a foundation governor. There must at all times (other than I suppose during an interregnum when the number of “eligible” foundation governors has fallen below two and a fresh appointment must be made) be at least two foundation governors who, as of the date of their appointment, were eligible to be appointed as parent governors. That is not a qualification of appointment as a foundation governor, as distinct from a qualification for a foundation governor to count towards the requirement for there to be always two foundation governors who are, or rather were, as at the date of their appointment as foundation governors, eligible to be appointed as parent governors.

65.	So the question for present purposes becomes whether Schedule 1’s para 10(2), as well as its para 10(1), defines eligibility for appointment as a parent governor. It is to my mind perfectly reasonable on a linguistic level to suppose that para 10(2) as well as para 10(1) sets out terms of such eligibility. Thus there is not much to choose between para 10(1)’s “the governing body must appoint” and para 10(2)’s “The governing body may only appoint…if”. Moreover, regulation 4(1), in defining the meaning of parent governors, refers generally to “a person appointed in accordance with paragraphs 9 to 11 of Schedule 1 (where para 11 is in the same essential form as para 10, but merely contains, in the case of a “community special school or a foundation special school”, an additional category of parent governor, being “a parent with experience of educating a child with special educational needs”). And, regulation 4(3) goes on to refer to “any of the requirements set out in paragraphs 10 and 11 of Schedule 1”, where “any of the requirements” of para 10 clearly include the requirements of para 10(2). I agree with Sir Richard Buxton that there is not a great deal of weight that can be placed on the division of para 10 between its sub-paras (1) and (2).

66.	However, I agree with Janet Smith LJ that it is preferable to regard para 10(2) as relating not so much to eligibility as to the method of choosing parent governors for appointment. As section 19(3) of the Education Act 2002 states:

	“Regulations may make provision as to –
	     (a)	  the number of governors, or of governors falling within any 		  category,
         (b)	  the person or persons by whom, and the manner in which, 	             governors are to be elected or appointed,
         (c)  the eligibility for election or appointment as governors of 		 any category, or for voting in an election of such      	   	 governors…”.

In my judgment, para 10(2) is better regarded as a provision relating to “the manner in which” parent governors are to be appointed (section 19(3)(b)), as distinct from a provision relating to the eligibility for appointment of parent governors (section 19(3)(c)). Para 10(1) tells the governing body that it can only appoint a parent as a parent governor, whether a parent is a current, former or potential parent. Para 10(2) tells the governing body how to choose a parent for appointment as a parent governor, stating that it is to give preference, if it is “reasonably practicable” to do so, to a current parent over a former parent, and to a former parent over a potential parent. That situation arises where there are not enough current parents willing to stand for election to fill the vacancies available or where an election of parent governors is otherwise impracticable for certain reasons (see para 9 of Schedule 1). It is common ground that the concept of what is “reasonably practicable” for the governing body in the appointment of parent governors in such situations introduces an element of discretion in the governing body. 

67.	A fortiori, the question of who might make a suitable foundation governor is nowhere defined, save in regulation 4 which states that a foundation governor

“(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”.

68.	We are concerned ultimately not with parent governors but with foundation governors. As Janet Smith LJ has observed, what is “reasonably practicable” in the appointment of foundation governors may raise difficult issues in circumstances where one only of the considerations which the Archbishop of Westminster has to bear in mind in appointing foundation governors is the need for the roll-call of foundation governors to contain at least two “eligible” governors. 

69.	There is to my mind something incoherent in these circumstances in the concept that the Archbishop’s discretion in the appointment of foundation governors is to be curtailed by the question of whether it might be reasonably practicable to appoint a parent governor of one kind rather than another at the time of his or her appointment as a foundation governor. Ex hypothesi the “eligible” foundation governor is not being appointed as a parent governor but as a foundation governor. If this concept is incoherent, and also in my judgment an unreasonable requirement, it is a strong pointer away from an interpretation of para 10(2) as being part of the eligibility requirements of an appointed parent governor.

70.	There remains also the underlying concept of para 18(1)(e) of Schedule 1. Although para 5 of the Instrument of Government differs in its language from the underlying regulation (as explored above) in speaking of eligibility “at the time of their appointment”, the concept of eligibility must be the same for the purposes of both Schedule 1 and the Instrument of Government. If, therefore, under the former the concept is of eligibility from time to time, that seems to me to be another pointer away from the idea that para 10(2) of Schedule 1 contains requirements of eligibility as distinct from requirements as to the manner in which appointments are to be made. As long as a parent remains (or becomes) a parent, current, former or potential, that parent is entitled under Schedule 1 to be counted among the roll-call of foundation governors who “are eligible for…appointment” as a parent governor. And as long as a parent remains (or becomes) a current parent, that parent is entitled to be counted among the roll-call of foundation governors who are “eligible for election” as a parent governor. In such circumstances, it would make no sense at all to ask what would have been reasonably practicable in terms of the preference of current parents over former or potential parents as of a hypothetical appointment as parent governors which in any event is never in issue in the real world. 

71.	Finally, I can understand the desirability for there to be a certain number of foundation governors who may also think as parent governors, while remembering that they are not parent governors, but foundation governors. It is much more difficult to see the necessity for a certain number of foundation governors who are to be able to think not only as parent governors (while remembering that they are foundation governors) but, pursuant to some hypothetical sense of what was “reasonably practicable” at the time of their appointment, also as parent governors of a particular category.

72.	For all these reasons, and in full agreement with Janet Smith LJ, I would conclude that para 10(2) tells the governing body how to exercise their power of appointment of one or more potential candidates for appointment, but does not define who is eligible for appointment as a parent governor. All parents, current, former or potential, are eligible for appointment as a parent governor. However, whether one such potential candidate is appointed in preference to another depends on other requirements and factors.

73.	I would therefore dismiss this appeal. If, however, I had been of Sir Richard Buxton’s view on the first issue, I would have agreed with him as to the disposal, namely that it would have been sufficient for the court simply to declare that the governing body had not been constituted according to law since 1 October 2010.