One of the less-understood aspects of how academy trusts work is the role that “members” play. We often hear about the “trustees” of trusts in articles. This isn’t surprising, as an academy trust is a limited company and the trustees are the directors of that company: legally and financially responsible for what that company does. If the academy trust is looking to take on a new academy, or enter into a big contract, the trustees will make the final decision and sign the documentation. Quite rightly, therefore, the focus falls on them if there are questions about how the trust is run.

However, in one sense, the members are even more important and powerful. They are the equivalent of shareholders, although they don’t receive any profit. Although trustees make the decisions, it is usually the members who appoint and remove the trustees. If the trustees are taking the trust in a direction that the members are not happy with, they can remove trustees and replace them. On that basis, the members are responsible for the trust’s long-term direction.

In the past, members and trustees were often the same people, but there is now a strong preference for a majority of members who are not trustees, ensuring independence. The theory goes that members are better placed than the Department for Education or regional schools commissioners to recognise poor governance early on - and they have the power to change things.

In the early days, members’ identities were often unclear. When forming a trust, the DfE would approve members, but once the company was formed there were no checks on appointments and removals; the only record was the hard-copy register of members, which was often not inspected. Today, trusts need to notify the DfE of any changes and keep the Get Information About Schools website updated.

Unlike trustees, who have a fixed term of four years and then have to be reappointed, members can theoretically be in position for life. Usually, the only way to remove them against their will is if at least 75 per cent of the other members vote to do so. Given this, and their ability to control the make-up of the board of trustees, the decision on who to appoint is critical.

The lack of specific legal responsibility and the requirements of the role mean that it is often suitable for those who might not be able to commit to the role of trustee, but it should not be seen as a “lesser” role, and academy trusts should be looking to appoint people who: (a) are able to hold the board of trustees to account; and (b) can act as the long-term guardians of the trust’s ethos.

Matthew Wolton is a lawyer at Knights plc and is recognised for his academies expertise, having worked in the education sector for over 16 years. He works with large and small MATs around the country, providing strategic guidance as well as legal support