Elections and terms of office

Some governors and staff that we spoke to asked whether it was possible to ‘relax the rules’ around required elections to enable existing governors to stay in post and avoid resource-heavy elections. Particularly at a time when it may be challenging to promote becoming a governor and to ask members to vote. When considering this, FTs and councils should be mindful that the council sustains adequate numbers to remain quorate in practice and is therefore able to take decisions, and to perform its accountability role until an alternative mechanism might replace it.

The requirement to hold elections after every three-year term is in primary legislation.  

Schedule 7 of the NHS Act 2006 (as amended) says: 

"10 (1) An elected member of the council of governors may hold office for a period of three years. (2) Such a member is eligible for re-election at the end of that period."

The minimum number of governors on a council is also set out in primary legislation (section 9 of Schedule 7) says: 

• More than half the members must be elected from the public constituency
  
  
• At least three members must be elected by the staff constituency
  
  
• At least one member must be appointed by a qualifying local authority
• If the FT is affiliated to a university medical or dental school, at least one member must be appointed by that university. 

Based on this, the minimum numbers for a council are three staff, one appointed (or two if university-affiliated), and five (or six) public governors. The legal minimum number of governors for a council is therefore nine governors, or 10 if university affiliated.  

The law cannot be ignored or set aside by the government, or by NHSE, without updating the legislation itself or enacting additional legislation that gives or NHSE new powers to direct FTs. NHSE have confirmed that they will not issue a dispensation to halt elections and hold vacancies, nor seek to change the law to reduce the minimum numbers on a council or extend the statutory three-year term length.

However, FTs do have the option to postpone or not hold elections and allow vacancies to remain open for a period of time. There is a small risk that they may receive public challenge for doing so, or, more likely, that a governor who wishes to re-stand finds this difficult to accept. Making any such decisions with the council will therefore be very important, not least constitutional changes (requiring council approval) may be required as a result. 

Governors at the end of their term who would otherwise be required to stand for re-election may be co-opted back to the council if necessary to retain their experience, but cannot be voting members, do not count towards council quoracy, and should not be decision-makers for e.g. NED appointments. 

While individual FT constitutions tend to place a limit on the number of terms a governor may serve (usually two or three terms), this is no statutory limit: constitutions can be changed with the approval of both the board and the council. However, extending the number of terms a governor may hold office does not remove the need for elections to be held for a governor to be appointed with voting rights. 

FTs do have the option of electing governors to terms of shorter length. This may be expedient when it is clearer when the legislation is likely to pass – however again, elections should still be held. A reduction in the length of terms may serve to be more transparent about the likely expectations on new governors, but is unlikely to solve potential issues around demotivation and low morale. 

FTs can also specify the number or proportion of governors required to participate in decision-making in their constitutions. In the case of significant transactions (mergers, acquisitions etc.) Schedule 7 specifies that ‘more than half’ of the members of the council must approve them. The wording is usually interpreted to mean more than half of all governors – not just more than half of those present or voting. So, when considering reducing the number of constituencies and/or governors in each constituency, FTs and councils should bear this in mind. A council reduced to nine governors would require five votes in approval to pass a significant transaction. This might leave little room for manoeuvre if there are governors unavoidably absent for any reason and unable to vote. 

In short, while FTs can change the requirements in their constitutions, they should remain compliant with the law, which expects that at the end of each term of office an election is held which is open to all members of the constituency. Contracts for membership services and running elections are considered in the membership section of this report.

It will be for the board and council to discuss and decide together on any proposed changes in the number of governors, the constituencies they represent, or the length of term of office they are appointed to. These decisions should be taken weighing up the pros and cons of sustaining the status quo against proposed changes, with a careful eye on sustaining a functional, legally constituted council, able to transact business. 

There are some changes to the constitution on which the law requires members be given the opportunity to vote at the annual meeting of members. These are changes “in relation to the powers or duties of the council of governors… (or otherwise with respect to the role that the council has as part of the corporation)” (Schedule 7 para 27A (4)). The powers and duties of the council as a whole, and council’s role in an FT, are not affected by the number of governors/constituencies that an FT has, nor the length of terms of office governors serve, and as such, should not require approval at a members’ meeting. If a council and/or board believe otherwise, it is important to note that changes may take effect prior to a members’ meeting and, should approval not be given by members’, the constitution would then revert to the situation prior to the amendment being made: it is not necessary to give members’ the chance to vote before amending the constitution (see Schedule 7 para 27A(5)).