Essential information at a glance

What’s proposed and what does it mean?

• The government plans to include a measure in the forthcoming health Bill, due to become law by 1 April 2027, that would remove the requirement for foundation trusts (FTs) to have governors. The Bill will also seek to abolish NHSE and set out other changes to enable delivery of the 10-year health plan for England. 
• In practice, this means that, if the Bill is passed, the statutory powers of governors will be removed, and all references to governors will be deleted from statute. The powers and functions of councils of governors will either be transferred elsewhere or deleted entirely. 
  
  
• Once the law changes, there is no option for an FT to continue to have a ‘council of governors’ with the powers and functions that it currently has. 
  
  
• The legal requirement to have public and staff FT members and constituencies (including any service user/carer constituencies) will also cease when the Bill is passed.  
  
  
• There are currently no plans to legislate for an alternative accountability mechanism nor patient and public voice mechanism to replace either councils of governors nor the membership model. The 10-year plan expects FTs to "put in place more dynamic arrangements to take account of patient, staff and stakeholder insight". 
• Because there is no certainty that any piece of legislation will pass, nor whether it will pass to the timescales intended by the government, uncertainty remains. Based on previous experience, we can say that it is likely but not certain that the measures will pass into law, and likely but not certain that this will happen by 1 April 2027. 

Considerations during this period of uncertainty

• Councils of governors retain their legal functions and powers until the new law comes into force, and so routine activities such as elections, council meetings, inductions for new governors, essential governor training, and communications between the council and board should continue.
  
  
• Governors are volunteers who support their communities and should continue to be valued as such. Collegiate, mutually respectful behaviours should be prioritised and sustained, and open communication and information-sharing facilitated. 
  
  
• If the Bill passes, FTs will have no choice but to implement the law and stop recognising councils’ powers when the law changes. It will be in the best interest of the FT and its staff and patients if all parties can work constructively together until this time. 
  
  
• In the interim period, FTs and councils may wish to discuss together whether to take options such as ‘right-sizing’ the council to reduce expenditure on any forthcoming elections.  However attention must be paid to retaining a quorate council able to undertake its functions, which are vital to the running of an FT under current legislation. 
  
  
• FTs and councils together may also wish to consider how public accountability and meaningful patient, staff and stakeholder voice should be enabled after the legislation has passed, particularly where such mechanisms do not already exist. FTs may decide whether governors in post when the legislation takes effect should have a role in any new non-statutory structures the FT chooses to develop, and, if so, what that involvement should look like. 
  
  
• Governors wishing to campaign against the proposed changes to the law should be mindful of any code of conduct, clauses in their FT’s constitution or other commitments made about their behaviour as governors that may apply. It may be worth having open discussions about this to clarify any boundaries. 
  
  
• Consider support not only for governors but also FT staff whose roles involve governor support, as they may also be adversely affected by the uncertainty. 
  
  
• Membership databases may be maintained after the Bill is passed, if desirable for ongoing patient and public engagement, as the original consent given to hold that personal data remains in force. However, to be compliant with data protection requirements, a communication should be sent to all existing members to advise them of a change in the legal basis for holding their data and an opt out provided. Staff engagement should of course continue too.