Overview and key external guidance

1.       The purpose of this document is to provide a brief introductory commentary concerning the role of the Council and the duties and responsibilities of its members.

2.       The Council is the principal executive and policy-making body of the University and its members have various duties and responsibilities as trustees of the University.  A summary of these duties and responsibilities is provided below and should be read alongside the Code of Practice for members of the Council. 

3.       Council members are also strongly encouraged to familiarise themselves with the following external guidance:

a.       Guidance for higher education providers that are exempt charities (this document from the Office for Students sets out the role and obligations of trustees with the higher education sector)

b.     The essential trustee: what you need to know, what you need to do (this guidance from the Charity Commission summarises what is required and expected of charity trustees)

c.      The Higher Education Code of Governance.

4.       Council members, or those who are interested in standing as Council members, are welcome to contact the Council Secretariat if they have any questions or wish to discuss any aspect of the role.

Legal status and mission

5.       The University exists as a legal entity in the form of a corporation titled “The Chancellor, Masters, and Scholars of the University of Cambridge’, which was established by common law and confirmed by an Act of Parliament in 1571.  The University’s mission is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence.

Charitable status and regulation

6.       The University is an exempt charity, which means that it has charitable status but it is exempt from the statutory requirement which otherwise obliges a charity to register with the Charity Commission. The Office for Students (OfS) is the principal regulator of the University as regards its compliance with its legal obligations in exercising control and management of its administration as a charity. The Charity Commission has a range of powers that it may use to protect charities and their property and/or reputation from abuse and poor practice, most of which apply to exempt charities. However, the Commission must consult with the OfS before exercising any specific power in respect of an exempt charity. In addition, the Privy Council is responsible for approving amendments to the University’s Statutes.

The position of the Council

7.       The Council is the principal executive and policy-making body of the University.  It has general responsibility for the administration of the University, for the planning of its work and for the management of its resources, and it has the power to take such action as is necessary to discharge these responsibilities. The General Board is responsible for the general academic and educational policy of the University.

Charity trustees and directors and their duties and responsibilities

8.       In accordance with Section 177 of the Charities Act 2011, Council members are the University’s trustees.  They are also effectively the directors of the University as a corporate body. In these capacities, members of the Council have legal responsibilities and duties.

9.       Charity trustees are bound by the same fiduciary and related duties as the law imposes on all trustees. In addition, the Companies Act imposes obligations on those occupying the position of a director. Although the relevant provisions of the Companies Act (especially section 172-176) do not apply directly to members of the Council, these provisions reflect expectations for the governance of a higher education institution (HEI).

10.    The key general governance duties on persons either as trustees or directors are explained in more detail below, but they are broadly equivalent in requiring those subject to such duties to promote the interests of the organisation and to act prudently, lawfully and in accordance with the governing instruments (the University’s Statutes and Ordinances).

Duty to act in good faith in the best interests of the University

11.    The primary duty of any charity trustee is to promote the interests of the charity. They must ensure that the charity's assets are used only for its charitable purposes, and that they do not put those assets at undue risk. Charity trustees are under corollary duties to familiarise themselves with the constitutional and governance structure of the charity and to exercise their responsibilities in the interests of the charity as a whole, and not as a representative of any particular constituency or sectoral interest. This means that, where trustees include elected members (as at Cambridge), such members should not, for example, regard themselves as mandated as delegates of their electorates.

12.    Council members should act (and be perceived to act) impartially. They should not profit from the University and should avoid any conflict between their own interests (including as trustee of another charity) and those of the University. Any actual or potential conflict of interest should be declared and handled in accordance with standing procedures and the University's Conflict of Interest Policy​.

13.    All decisions of the Council should be taken by Council members acting collectively as a body and members should endeavour in so far as possible to achieve a consensus. However, if necessary, decisions of the Council may be taken by simple majority. Members may dissent from the majority view, but should ensure that any subsequent expression of their views outside Council meetings is consistent with their duties as trustees.

14.    For this reason, and generally as a matter of proper governance, it is important that all Council members are encouraged to participate in the deliberations of the Council and that due account is taken of the views of all Council members, including minority opinions.

15.    Putting aside individual interest does not mean ignoring personal knowledge or expertise. Members of the Council who are also employees or students of the University should bring the benefit of their own experience to meetings of the Council, just as external members of the Council may bring skills that may not otherwise exist on the Council, so as to ensure a wide range of informed perspectives. All relevant considerations should be taken into account and irrelevant ones should be overlooked.

Duty of care

16.    Members of the Council are entrusted with the proper and responsible stewardship of the University’s property and funds, both public and private, and members of the Council consequently have a duty to exercise due care in this regard (see Section 8 in the Charity Commission’s Guidance ‘The Essential Trustee’).

17.    This involves the avoidance of activities which might place the University’s endowment, funds, assets or reputation at undue risk and taking special care to safeguard the value of permanent endowment and in connection with the investment or borrowing of funds.

Standard of care

18.    In meeting their duty of care, members of the Council are expected to show the care, skill and diligence that would be exercised by a reasonably diligent person, having both the general knowledge, skill and experience which a person in their position might be expected to have and also the general knowledge, skill and experience which they actually have (again, see Section 8 in the Charity Commission’s Guidance ‘The Essential Trustee’).

19.    In practice, this duty will generally be discharged by members of the Council taking decisions on the basis of sensible reliance on papers prepared by a professional executive. However, individual members of Council must reach their own decisions and take an active role in the affairs of the Council. While it is permissible to delegate responsibilities in accordance with the provisions of the University’s Statutes and Ordinances, Council members will remain ultimately accountable and they must continue to monitor and properly supervise those exercising delegated functions through appropriate risk management frameworks and reporting mechanisms (see Sections 1 and 2 of The Higher Education Code of Governance).

20.    This continuing overall responsibility applies even in respect of business and activities which are assigned by Statutes and Ordinances to other delegated bodies, including specific Syndicates.

21.    In the case of its executive responsibilities, the Council discharges these principally through its delegated sub-committees and, while retaining its supervisory function over these bodies, it should avoid involving itself in their day-to-day business, thereby enabling it to be most effective in the functions for which it retains primary responsibility, including the pursuit and implementation of strategy and policy (see Section 2 of The Higher Education Code of Governance).

Duty to act within its powers

22.    Members of the Council have a duty to advance the objects of the University while acting only within their legal powers. While the Council has the power to take such action as is necessary to discharge its responsibilities, it is important to note that even general wide powers may be constrained. For example, the Council, acting for the University, is unable to take action which does not further the University’s charitable objects or which is contrary to the provisions of the University’s Statutes and Ordinances or trust instruments, save where those provisions are themselves at odds with the general law.

Duty to comply with legislation

23.    Members of the Council also carry specific responsibilities in relation to certain subjects, the most important of which are listed below:

a.      Health and safety, including corporate manslaughter

b.    Employment

c.    Equality

d.    Bribery

e.    Freedom of Information

f.     Data Protection

g.    Students' Union.

 Office for Students and UK Research and Innovation

24.    The Collaboration Agreement between the OfS and UK Research and Innovation (UKRI), dated 12 July 2018, notes that UKRI relies on the judgements of the OfS as the regulator of HE providers in England, for both the QR grant which was formerly administered by HEFCE and for Research Council funds.

25.    The Council is required to have effective governance arrangements in place to fulfil the obligations set out by the OfS.  For example, to:

a.       Nominate to the OfS a senior officer as the ‘accountable officer’ (see condition E3 in the OfS’s Regulatory Framework for Higher Education in England​).

b.       Develop and implement an access and participation plan, agreed and monitored by the OfS, aimed at widening participation among disadvantaged and under-represented student groups.

c.       Oversee the provision and monitoring of high-quality HE courses and teaching, benchmarked to TEF (which the Council carries out through the General Board).

d.       Ensure a high level of student support, enabling every student to achieve the best outcome possible, with a student protection plan to address complaints within the framework of the Office of the Independent Adjudicator for Higher Education.

e.       Comply with the mandatory requirements relating to audit and financial reporting set out in the Higher Education Audit Committees Code of Practice and in our annual accounts direction, and provide the OfS with the University’s annual accountability returns.

f.       Publish mandatory transparency information relating to students and fees (under Section 9, HERA).

g.        Adhere to any further general or specific conditions of registration set out by the OfS and inform the OfS of any material change in the University’s circumstances.

26.    More detailed information on OfS expectations of governing bodies can be found on its website.

CUC Governance Code of Practice

27.The OfS recommends that governing bodies consult the good practice guidance and principles set down by the Committee of University Chairs (CUC) in its Higher Education Code of Governance (‘the Code’). Compliance with the Code is voluntary, and the University has chosen to comply with its provisions, since it provides a useful guide to good governance and the work of governing bodies.

28.    The purpose of the Code is to identify the key values and elements that form an effective governance framework and its intended audience is the members of governing bodies. It covers accountability, sustainability, reputation, inclusion and diversity, effectiveness and engagement. However, it also recognizes that good governance practice is complex, and goes beyond the adoption of the Code. Effective governance requires an organisational culture which gives freedom to act; establishes authorities and accountabilities; and at its core fosters relationships based on mutual respect, trust and honesty.

The 'Nolan' principles of public life

29.    Governing bodies and their individual members are expected to conduct themselves in a manner appropriate to public office holders and to adhere to the seven ‘Nolan’ principles of public life laid down by the Committee on Standards in Public Life, which incorporate concepts of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.  For further information see the Code of Practice. 

Personal liability

30.    The law relating to the personal liability of members of governing bodies is complex. However, in summary, this issue is most unlikely to arise, providing members of the Council have acted honestly, diligently and in good faith and avoided conflicts of interest. In particular, Council members who are excluded from reserved business, or on account of a conflict of interest are most unlikely to be held responsible for decisions taken in their absence.

31.    Difficulties are likely to be experienced only where there has been a reckless disregard of professional advice or a clear breach of a fiduciary duty, for example where the Council is obliged to act, but fails to do so, where it exceeds its powers or where it fails to act with the appropriate standard of care.​