Paragraph 5 of the governing instrument of a Roman Catholic voluntary aided maintained school required that two foundation governors should, ‘at the time of their appointment, be eligible for election or appointment as parent governors’. The parent governors of the school challenged the decision of the Archbishop of Westminster in appointing four new foundation governors, none of whom was eligible for election or appointment as parent governor. The Archbishop had not renewed the appointment of two foundation governors who were parents of current pupils at the school. Paragraph 10 of Schedule 1 to the School Governance (Constitution) (England) Regulations 2007 provides at follows:

The Archbishop relied upon the fact that two of the existing foundation governors had fulfilled the requirements of paragraphs 10(1)(b) and (c) respectively at the time of their appointment, and thus the requirement of paragraph 5 of the governing instrument was satisfied. He argued that paragraph 10(1) alone defined who was ‘eligible for election or appointment as a parent governor’, and that paragraph 10(2) was relevant only to the method of choosing parent governors. The claimants argued that paragraph 10(2) meant that it was only lawful for the foundation body to appoint governors eligible under paragraphs 10(1)(b) or (c) if it was not reasonably practicable to appoint a current parent. In upholding the decision of the first instance judge, the Court of Appeal, by a majority, agreed with the arguments of the Archbishop. The Court of Appeal noted the particular function of foundation governors to secure, preserve and develop the religious character of the school. It was held that to accept the arguments of the claimants would be to place an undue fetter on the discretion of the Archbishop in appointing foundation governors and would create unintended and unreasonable operational difficulties for the Archbishop in exercising his discretion. Sir Richard Buxton, in a dissenting judgment, found that paragraph 10(2) also informed whether a person was ‘eligible for election or appointment as a parent governor’ and as such the governing body of the school was unlawfully constituted as it did not have two foundation governors who, at the time of their appointment, were eligible for election or appointment as parent governors. [RA]