The Memorandum and Articles of Association ("M&AA") form the constitution of the new company which will run the new Academy.
The Memorandum is a simple form to be completed by the 'subscribers' being the individuals who are involved in setting the company up and who will act as the members of the company (referred to below).
The Articles of Association set out among other things:
- the objects of the company (which are broadly to advance for the public benefit education in the UK, in particular by running a school)
- the powers which the company has to carry out the objects
- the composition of the membership and the governing body
- the procedures for meetings of the membership and the governing body.
Of particular interest in the model will no doubt be the composition of the membership and the governing body:
The membership
The members are the owners of the company who have specific statutory rights referred to them. It is expected the members will be the signatories to the Memorandum (a minimum of 3 who are likely to be drawn from the existing governors); 1 person appointed by the Secretary of State (if the power is exercised); the chair of governors (who may be the chair of governors of the current school); and any further members appointed unanimously in writing by the other members.
The governing body
The governors are also the directors and the charity trustees. They are responsible for the management of the academy. The governing body will be composed of governors appointed by the members (no maximum prescribed in the model); a local authority appointed governor; the Principal; and parent governors.
Discussion in the House of Commons determined that the number of parent governors should be increased from one to two. Academies are free to choose whether to have up to a maximum of two staff governors and a maximum of three co-opted governors (being governors appointed by the other governors).
Key amendments to the previous drafts are as follows:
- The insertion of provisions relating to exempt charity status.
- The removal of the role of the sponsor in appointing governors.
- Removal of requirement to have a specialism - the academy should have a broad and balanced curriculum.
- A further right has been included to permit the Secretary of State to appoint additional governors where the Academy receives an Ofsted grading which amounts to a drop, either from one inspection to the next or between any two inspections carried out in a 5 year period.
The model M & AA are standard documents and the Department for Education ("the DfE") will not expect them to be negotiated. There are some aspects however which need to be tailored to the specific school's requirements and the governors will need to familiarise themselves with the key provisions.
The governors will also need to aware of their duties and responsibilities as directors under company law and charity trustees (albeit of an exempt charity) under charity law.
The M&AA once finalised are included as an annex to the funding agreement and will therefore require the approval of the Secretary of State. For this reason, we recommend that the final M&AA are reviewed by the DfE lead before the company is incorporated.
For further information, please contact Chloe Brunton on 0117 314 5301.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
