The revised CUC Code treats culture and behaviours as a standalone governance discipline for the first time, describing governance culture as "arguably the single most important determinant of governance effectiveness." 

New mandatory requirements include a need for institutions to publish their Code of Conduct, the appointment of a Senior Independent Board Member, formal Chair accountability mechanisms, and structural safeguards including non-executive-only board sessions. Most institutions will need to develop documentation and make appointments that do not currently exist.

How did the 2020 Code address board culture and conduct?

The 2020 Code addressed conduct and values largely within its general principles, in particular the principle relating to the conduct and operation of the Board. There is no dedicated section on culture, no requirement for a published Code of Conduct as a standalone instrument, and no formal mechanism for holding the Chair to account distinct from general board processes.

New requirements: Code of Conduct, SIBM appointment and Chair accountability

The revised Code calls for an active and deliberative process involving continuous self-reflection and periodic independent assessment, in which boards critically assess their own performance and behaviours, identify risks of unconscious bias and power imbalances, and determine how to mitigate them. 

Specific new provisions include the following:

• All Board members and attendees must uphold and promote the highest standards of conduct and respect, including the Nolan principles. The Board should develop, publish, follow and regularly reflect on compliance with a Code of Conduct for all board members and attendees, setting out cultural and behavioural requirements, including a process for responding where the Code of Conduct is not adhered to. All Board members must challenge actions and interactions which they feel are not in line with the expected cultures and behaviours, with the Senior Independent Board Member (SIBM) holding the Chair to account where relevant.

• Providers should appoint a SIBM, distinct from the Chair of the Board (whereas the 2020 Code recommended that Boards consider such appointments). This may be the Deputy Chair.

• The Chair must set the tone of board culture, modelling exemplary behaviour consistent with the institution's values, facilitating open and respectful debate and ensuring that the Board operates with integrity and transparency, with all board members' voices heard and given equal respect. The Head of Institution must foster a culture of integrity, openness and accountability across the Executive and in their engagement with the Board.

• Boards must ensure the institution operates effective processes for managing complaints and investigating disclosures under whistleblowing legislation, including safeguards to maintain independence, such as ensuring separation from members of the executive with significant operational responsibilities.

Collective responsibility and structural safeguards

The revised Code also introduces several additional provisions:

• The Board must operate as a single, accountable body, with all board members contributing to constructive, rigorous challenge in decision-making and sharing collective responsibility for board decisions.

• As a structural safeguard, the Chair should periodically facilitate open discussions amongst the non-executive board members without the executives present. Similarly, the SIBM should periodically facilitate open discussions amongst the board members without the Chair present.

• All board members, including those who are also students or staff, share the same responsibilities. All members' primary duty is to act in the interests of their institution, which includes respecting confidentiality. Board members should not be excluded from discussions simply because they are students or staff.

• Boards must maintain, check and publish a register of the interests of members and executives.

What governance changes do the culture and conduct provisions require?

The dedicated culture chapter, the published Code of Conduct requirement, the SIBM appointment obligation and the formal Chair accountability mechanism are all new. We understand that the majority of providers registered with the OfS have not previously made an SIBM appointment. 

The obligation to establish a published Code of Conduct with a defined process for addressing non-compliance will require most higher education institutions to develop documentation that does not currently exist. The periodic non-executive-only and SIBM-led board sessions are structural safeguards that boards should introduce formally rather than leaving to informal practice.