COMMITTEE FOR EDUCATION

OFFICIAL REPORT

(Hansard)

Education Bill

18 February 2009

Members present for all or part of the proceedings:

Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill

Witnesses:

Mr Jeff Brown )
Mr Chris Stewart ) Department of Education
Mrs Eve Stewart )

The Chairperson (Mr Storey):

John is unable to be here today, and you are welcome, Chris. The Committee is beginning to wear the officials down, with one down and four to go. Today’s meeting must end at approximately 11.45 am because of a science, technology, engineering and mathematics (STEM) event taking place in the Long Gallery. That will curtail members’ questions, but as I always say, the Committee is free to return to any issue that it considers has not been adequately covered.

Chris, perhaps we can divide the discussion into three areas and consider those in the following order: the commencement arrangements; the powers to make subordinate legislation; and the links to existing primary legislation.

Mr Chris Stewart (Department of Education):

I am happy to do that. I apologise in advance for what will be a dry, technical presentation on a dry, technical paper.

Mr B McCrea:

No change there then.

Mr C Stewart:

That is the nature of the subject matter.

The paper describes the two ways in which primary legislation can be brought into operation: automatically on the date of Royal Assent, or at a later date by means of commencement Orders. The commencement arrangements for the Education Bill are set out in clause 54. As with most Bills, they include both mechanisms, so there is nothing unusual about that.

However, the proportion of the provisions that are covered by each mechanism is unusual. In this case, all the substantive provisions — including those to establish and assign functions to the education and skills authority (ESA), and to dissolve the existing organisations — will be initiated by means of commencement Orders. As Members will recall, that is to reflect the decision of the Minister and the Executive that the review of public administration (RPA) should be regarded as a single legislative programme and that the two required Bills must remain synchronised. Therefore, the commencement arrangements are designed to ensure that the timing of the implementation of the first Act can be adjusted, if necessary, to maintain that synchronisation.

The very few provisions that will commence on Royal Assent are set out in table 1 of annexe A to the paper. Those particular provisions will be commenced in that way either for technical reasons or because they provide for actions that the Department will have to take in advance of the implementation date of 1 January 2010.

The technical issues are self-explanatory: both the clause giving the short title of the Bill and the clause that allows for the making of the commencement Orders must commence on Royal Assent.

The remaining provisions, significantly those that deal with staff transfer, relate to what the Department must do in advance of implementation. Although staff transfer will not take place until 1 January 2010, when the new organisation comes into operation, it will be affected by means of a series of transfer schemes that the Department hopes to prepare well in advance of that date.

Therefore, we need an early commencement of the provisions that allows us to draw up the transfer schemes. I assure the Committee once again that there is no suggestion that transfer will take place prior to 1 January 2010.

The Chairperson:

Clause 50, which will be commenced by Royal Assent, states in subsection 1:

“The Department may by order make”

(a) and (b). Are those departmental Orders? If so, why are they not among the regulations set out in clause 51, which are subject to negative resolution procedure and laying before the Assembly?

Mr C Stewart:

I was going to explain that in the second part of the presentation. The answer is that it is standard practice. Commencement Orders are, as you say, orders made by the Department; they are not normally subject to Assembly control. The reason for that is that the Assembly, in passing the Bill, will have made its will clear and expressed its agreement to the legislation coming into operation. It is then regarded as a technical matter for the Department to do so at the earliest possible date.

The Chairperson:

Do members have any other questions about the commencement arrangements? Will the Department consult with the Committee on the timing of the other provisions coming into operation as set out in clause 54?

Mr C Stewart:

Yes. We will keep the Committee apprised of everything that we propose to do. We will bring all the commencement Orders to the Committee in due course.

Mr B McCrea:

Are the clause 54 commencement Orders also technical issues that do not require Assembly consent, or will they come before the Assembly by way of negative resolution procedure?

Mr C Stewart:

Commencement Orders are not subject to Assembly control, but all the other Orders — except for those that modify primary legislation — are subject to negative resolution control procedure. The clause that gives us power to modify primary legislation is the other exception. Due to the significance of that power, it allows the Department to make or to modify primary legislation. That is an extremely significant power, and one that ought to be — and will be — subject to Assembly control.

Mr B McCrea:

I understand why, in the past, negative resolution procedure was useful. It saved a lot of work, unless an issue arose. However, given the voting arrangements that we have and the sensitivity of these issues, is there any provision to make them subject to positive resolution?

Mr C Stewart:

Yes — if the Assembly passed an amendment to that effect.

Mr B McCrea:

That is a useful point.

The Chairperson:

Do members have any other questions on the commencement arrangements for the Bill?

Mr McCausland:

It is good to see that the Minister will be seeking Royal Assent for this legislation. That warms my heart.

The Chairperson:

I thought that that would please you.

Mr B McCrea:

Every dark cloud has a silver lining.

Mr O’Dowd:

It makes you feel all warm inside.

The Chairperson:

We move on to the powers to make subordinate legislation.

Mr C Stewart:

We have already touched on these issues in answering members’ questions.

The range of enabling powers contained in the Bill is set out in table 2 of annexe B of the paper. Those broad powers provide for the making of subordinate legislation of three types: regulations, which are substantive law made by the Department to regulate or govern the exercise of functions on an ongoing basis; orders, which are of a one-off nature, and are made by the Department to exercise executive power or to make decisions in particular instances; and by-laws, which will be made by ESA to govern a range of local matters. As I have said, the arrangements for Assembly control of the various types of subordinate legislation are set out in clause 51.

All the regulations and most of the Orders are subject, as the Bill is currently drafted, to the negative resolution procedure. Exceptions to that are the modifying Orders that I referred to under clause 51, the commencement Orders themselves, made under clause 54, and Orders to transfer assets, made under paragraph 2(1) of schedule 4. As I have said, the modifying Orders are subject to the stronger Assembly control procedure of affirmative resolution, simply because of the significance of the power involved. Commencement Orders and operational matters, such as asset transfer Orders, as would be normal practice, are not subject to Assembly control.

The Chairperson:

Paragraph 7 on page 132 of the briefing paper states:

“Clause 51 of the Bill sets out the arrangements for Assembly control of the subordinate legislation. All regulations and most orders made under the Act will be subject to the negative resolution control procedure.”

Most Orders, but not all?

Mr C Stewart:

No; the exceptions are the modifying Orders under clause 50(1), the commencement Orders and the asset transfer Orders.

The Chairperson:

Other than asset transfer, what other operational matters would not be subject to Assembly control?

Mr C Stewart:

Those are the only matters.

The Chairperson:

So, those matters covered by clauses 51 and 54 and paragraph 2(1)?

Mr C Stewart:

Yes; clauses 51 and 54 and paragraph 2(1) of schedule 4.

Mr B McCrea:

Are those the only matters?

Mr C Stewart:

Yes; there is nothing unusual in that pattern — it is standard practice that legislative counsel follows when drafting such provisions.

Mr B McCrea:

When will it be appropriate for us to debate the issues that we have with the Bill? Should we raise them in the Committee, the Assembly or should we just come and have a word with you? When will we be able to get to grips with the issues that we have with the Bill’s provisions?

Mr C Stewart:

Any or all of those processes would be appropriate. If the Committee feels that the commencement arrangements in the Bill are not to its liking, it could table an amendment at the Consideration Stage.

The Chairperson:

We have set a deadline of 20 February for the return of submissions from people who want to comment on the Bill. A couple of organisations have told us this morning that they will not be able to meet that deadline. We said that that is fine and that we will accept their replies at some stage. When we begin clause-by-clause scrutiny of the Bill, we will group the clauses as 1 to 5, 5 to 10, and so on. When it is time to scrutinise clauses 51 and 54, there will be an opportunity for Committee members to recommend changes if they are not happy. Am I correct, Chris?

Mr C Stewart:

Yes; if there is a consensus in the Committee about amendments, we will take them to the Minister and return to the Committee with her views on them. We want to share with the Committee, at an early stage, a small number of amendments that the Department wants to table at Consideration Stage, to ascertain whether there is consensus from the Committee on them. It will be good if there is complete consensus between the Committee and the Minister on amendments. However, if there is not, we will await the will of the Assembly on the amendments.

The Chairperson:

That would be useful. The Committee Clerk and I have not decided on a structure for how to address the clauses. That is something that we must consider; the way that we address the clauses should be done in a way that both helps the Department and reflects the Committee’s view. That should be done so that no issues arise three months down the road. There is an onus on all of us to do that, which is why I have endeavoured, maybe not very successfully, to work methodically through the Bill. That is why we will address the underlying policies in the Bill until 20 February, after which we will start to work our way through its clauses. Chris, it may be useful to have a conversation with you about that.

Mr C Stewart:

That is very helpful, and we would appreciate such an approach from the Committee. To facilitate the Committee’s work, we intend to let you see the amendments that we will be proposing, or at least the areas that those amendments address, in the next couple of weeks.

The Chairperson:

Which of the Orders contained in annexe B of your paper are not subject to the Assembly control proceedings?

Mr C Stewart:

The exceptions are the modifying Orders under clause 50(1), commencement Orders under clause 54 and the Order to transfer assets under paragraph 2(1) of schedule 4.

The Chairperson:

Clause 50(1) refers to clause 12, ‘Modification of employment law’. Is that correct?

Mr C Stewart:

Yes.

The Chairperson:

Members should make a note of clause 50(1). Are members clear that clause 12, ‘Modification of employment law’, clause 54, ‘Commencement’, and paragraph 2(1) of schedule 4 are not subject to Assembly control proceedings?

Mr B McCrea:

Is the “50” on your paper the same as clause 50(1)?

Mr C Stewart:

That is a fairly standard provision that legislative counsel includes in most Bills.

The Chairperson:

Is it subject to Assembly control?

Mr C Stewart:

Apologies, Chairman. I think that I left that one out when I was giving you the list. It is clause 50, and allows us to make supplementary, incidental or transitional provision. It is included so as to provide grace, in case we discover that we got something wrong in the drafting of the Bill. It allows us to put it right quickly.

The Chairperson:

Eleven years later, Chris.

Mr C Stewart:

Perhaps not as quickly as that.

Mr B McCrea:

For clarity, I have clause 12, clause 50(1), clause 54 and paragraph 2(1) of schedule 4.

Mr C Stewart:

We will double-check the table for any inaccuracies.

The Chairperson:

Which Orders and regulations in annexe B are subject to affirmative resolution?

Mr C Stewart:

The only one that is subject to affirmative resolution is clause 12. The power that it relates to is the power in clause 12.

The Chairperson:

That is OK.

Mr B McCrea:

What is that about clause 12?

The Chairperson:

Basil, we want to establish what clause is subject to affirmative resolution. There is only one clause.

Mr B McCrea:

Clause 12 is affirmative, but I have noted clause 12 in the same category as clause 50(1); that is what I thought that you had told me.

Mr C Stewart:

That is correct.

Mr B McCrea:

Are you positive?

The Chairperson:

That is correct, is it not?

Mr C Stewart:

That is correct, Chairperson. Only one power is subject to affirmative resolution procedure — the power in clause 12.

The Chairperson:

Will you explain the powers in clause 12 that enable employment law to be modified, and provide an example of how they would be used?

Mr C Stewart:

Upon reading, those powers may appear draconian. I assure the Committee that they are not. They are there to be used if needed to facilitate the operation of the employment model that we have described to the Committee. In other words, they provide the power — if needed — to slightly change employment law in order to assign a particular responsibility to the ESA or to a board of governors.

The powers do not enable fundamental changes to be made to employment law. Therefore, we cannot change or dilute the responsibilities of the ESA as an employer; nor can we remove the fundamental rights of any member of staff under employment law. I assure the Committee that that is neither our intention nor is it within the scope of the provision.

Mr B McCrea:

That is a serious issue for many people. Mr Stewart has given the Committee assurances, but can anything be done to include those provisos in the legislation? People may consider such matters and surmise that the Department is assuming the power to do whatever it likes.

Mr C Stewart:

That may be possible, but if the Committee is minded to bring forward, and sought legal advice on, such an amendment, I believe that that legal advice would be that the move is unnecessary, because the powers do not allow the Department to misbehave in the manner that is feared.

That provision is not new or unique. A similar one that uses exactly the same wording is included in the 1989 Order. It is a fairly standard clause that counsel would use in situations in which the Department wants to implement part of a policy that would otherwise be difficult because of an aspect of employment law. In that case, the power can then be used to remove whatever the minor issue is.

Mr B McCrea:

The point is that the Department is given the power to do things that it forgot about or to rectify mistakes, of which everybody is capable. The other side of the coin is that people are worried about those powers being misinterpreted. I have no wish for duplication, but surely legislation must be explicit and make clear what is fully intended. I believe that a form of words can be found that will help both sides.

Nobody is saying that the Department should not have the power to fix things if they do not work out right. However, in their darkest moments, people must be reassured that legislation is not being used in a way that is contrary to that originally envisaged. Can a form of words be found that will counter those complaints and help the Committee?

Mr C Stewart:

I am sure that that is possible. At this stage, my advice is that that form of words may be better employed in the description, perhaps even in the explanatory and financial memorandum that accompany the Bill, rather than in the Bill itself.

Mr B McCrea:

Is that binding? I am seeking guidance because I have not done this before. How binding is that explanation and guidance?

Mr C Stewart:

It is not binding, in the sense that the explanatory and financial memorandum does not have the effect of law. However, the content of the explanatory and financial memorandum would be taken into account if there were a dispute and a court was required to make a ruling. In itself, it is not binding.

The Chairperson:

How different is what is proposed in the management of this process to what happened in the administration and governance of health services? How different are the clauses in the Bill that effected those changes from those that the Committee is currently considering?

Mr C Stewart:

Many aspects are similar. Many clauses in health RPA legislation and, indeed, in the legislation that set up the library authority are almost word-for-word identical to similar clauses in the Education Bill. That is because legislative counsel always likes to follow best practice when taking such matters forward.

For example, schedule 1 to the Bill sets out a range of issues on the composition, governance and operation of the education and skills authority. There is a similar schedule in the Libraries Act and in the Health and Social Care (Reform) Act. Standard provision is used.

The biggest difference between the Bill and those other pieces of legislation is the commencement Order. It is unusual — in fact, it is unique in my experience — for that proportion of a Bill to be actioned by means of commencement Order.

Mr O’Dowd:

I was going to raise the matter of the Health and Social Care (Reform) Act as it relates to how this

RPA process is being managed. I imagine that no piece of legislation can be used to subvert or undermine employment legislation or any other kind. In that sense, therefore, you should not be looking for reds under the bed.

If there are genuine concerns, they could, perhaps, be covered in the explanatory notes that explain the Bill’s purpose in order to reassure people.

Mr C Stewart:

It is right that a further, even slight, degree of reassurance should be offered. We did not ask for that clause: legislative counsel advised us that it ought to be included in the Bill because it is a standard clause that would normally be included in provisions of that nature.

The Chairperson:

If there are no further questions on that matter, we will move on to consider the links to existing primary legislation. That is where we will enter an absolute minefield. Perhaps, members, we may have to examine that again. I am well aware that the matter is extremely technical. Sometimes, questions are raised in everyone’s mind about why there are schedules, commencement Orders, and all of that. We may need to give that consideration. This is the first time that the current Committee has taken on such a task. An understanding of the matter would be extremely useful; even if that means that we must return to it again and again. Eleven other pieces of legislation are affected as a result of the Education Bill. Do you want to jump into the water, Chris?

Mr C Stewart:

I will jump into the water where only civil servants are comfortable, and even they are not terribly comfortable.

Chairman, your warning is timely. I wrote the paper with what you have just said in mind. It would probably have taken me at least a year to try to write a paper that covers every aspect of every existing Order, and taken the Committee at least a year to read. Therefore, I have not endeavoured to do so. However, I recognise that the Committee will, undoubtedly, want to come back to particular aspects of the Bill. We are more than happy to do so at your request.

In the paper, I have tried to illustrate the process that we have followed to link existing legislation to the Education Bill, and some of the principles that we have tried to reflect in doing so. As the paper explains, education legislation is some of the most complex and voluminous on the statute book. I spent much of the early part of my career in health, where, I can tell you, the volume of legislation is about 20% of that which exists in education. Therefore, to get through it is a challenge for any reader.

The paper lists the 11 education Orders that exist at present. In many ways, the most significant is the earliest one, the Education and Libraries ( Northern Ireland) Order 1986, which is, sometimes, known as the principal Order. It is the main piece of legislation. Seven of the other Orders are explicitly linked to it, because they contain provisions that state that they are to be construed together with 1986 Order.

That means that any definitions or interpretations in the principal Order apply equally to the later Orders. The net effect is that those eight linked Orders and, indeed, the new Education Bill should be read and interpreted as if they were a single piece of legislation.

I am afraid that this is when the fun starts, because it is not as easy as that. Each time a new Order was brought forward, not only did it add significant new provisions to the body of the legislation, but it amended significant chunks of the existing Order. Therefore, each time another layer went on the onion, the position became more complex and more difficult to follow.

Further complications arise from the fact that there are a series of provisions on the statue book that have not yet been commenced for a variety of reasons, be those policy reasons — because it was not felt necessary or timely to do so — or because, as we said earlier, errors were made, from time to time, in taking forward commencement Orders.

It was against that complex and difficult background that we sat down to examine the existing legislation and to create the necessary linkages with the Education Bill.

We scrutinised all the Orders in detail by examining carefully every word and every line. The idea was to re-orientate all that legislation so that it linked to the RPA arrangements. To use an analogy, it was like using a magnet to pull iron filings in the same direction. Specifically, we examined the transferring of functions from existing organisations to the ESA, eliminating any redundant functions that were no longer needed, resolving any duplication of functions —, for example, both the CCMS and the education and library boards have some functions that are the same, and we did not need to transfer both sets — transforming some functions that needed to be changed, and a range of consequential amendments.

A great deal of other legislation that is outside the field of education has references to education and library boards, and, of course, we needed to change all those. All that added up to more than 1,200 repeals and amendments. Many of those were straightforward, but others required complex changes and careful consideration. Most of the simple amendments involved changing a reference from “education and library board” to “education and skills authority”. Legislative counsel, Mr George Gray, has taken a particular approach to doing that. He has drafted a catch-all provision in sub-paragraph 1 of schedule 7.

The effect of that provision is that after 1 January 2010, any reference in any of the education Orders to “education and library board” should be taken to read “education and skills authority”. That catch-all provision makes hundreds of changes to education law. Such references automatically change law, unless they are subject to a more bespoke amendment given explicitly in the Education Bill. The remainder of schedule 7 deals with other amendments, and schedule 8 deals with the repeals. As I said, I have not attempted to list all those changes in the briefing paper; however, I have picked out a number of examples to illustrate what we tried to do and how we tried to do it.

I provided examples of the effects of the RPA legislation on the education Orders. Those include the transfer of functions, the proposal to eliminate a redundant function, the overlap of functions, or minor amendments to a function. I will not read those out now; however, we are happy to take questions on any particular aspect that members want covered.

I draw the Committee’s attention to annex D of the briefing paper — schedule 5 to the Education and Libraries (Northern Ireland) Order 1986 showing the effect of amendments in the Education Bill — as that provides a picture of what the legislation will look like. By including both the highlighted and the struck-out text, we tried to show the totality of the effects of the various amendments and repeals on that particular schedule.

The schedule deals with the appointment of governors to schools. That is quite a simple set of amendments; however, as members can see, unless one has the fully amended text in front of oneself, it is difficult to envisage the totality of the effect. We provided that example because a number of stakeholders read the Education Bill without reading the schedules of repeals and amendments in great detail — and, let us face it, why would they unless they had to — or the earlier education Orders and came to the wrong conclusion that we had removed the requirement to consult trustees of Catholic schools before the appointment of governors.

It is only when one sees the amended schedule in its entirety that it becomes clear that that requirement is still there. However, it has changed from a requirement to consult the Council for Catholic Maintained Schools to a requirement to consult trustees. It is no longer the Departments or boards that will carry out the consultation; it will be the ESA. It is actually quite a simple set of amendments, but it illustrates the complexity and the challenges for any reader of the legislation.

We have also provided a very brief summary in tabular form of the main groups of provisions in each of the eight linked Orders, to try to provide the Committee with a map of education legislation. It is far from a straightforward map; it is not as neat and tidy as anyone would like it to be. If one were to ask, for example, where the finance provisions are, the answer is that they are all over the place, but mainly in the 1989 and 1998 Orders. If one were to ask where the main provisions for education and library boards are, they are mainly in the 1986 Order, but there are a few others scattered throughout the other Orders. It is a very complex map indeed.

We have not provided tables for three of the Orders. The Youth Service ( Northern Ireland) Order 1989 will be repealed in its entirety, so that table would be superfluous. The other two Orders — The Education ( Northern Ireland) Order 1987 and The Special Educational Needs and Disability ( Northern Ireland) Order 2005 — will only be subject to a small range of amendments; therefore, we did not burden the Committee with two more tables that were not needed.

I am genuinely unsure whether that has been of any use to the Committee whatsoever. I hope that it has. If to any extent it has not, we are happy to take members’ questions.

Mrs M Bradley:

You could come back a thousand times to discuss this issue.

The Chairperson:

I have said to the Committee a number of times that these are very technical issues. We all have a duty to ensure that we deal with them, but there is a limitation to what we can actually take on board. It is similar to issues involving finance; if one is not an accountant, one will have difficulty understanding all the issues.

In relation to paragraph 23 on page 136 of the briefing paper, will you explain the need for the insertion of a new article — 18A — into the 2003 Order, giving the ESA powers to direct boards of governors? I would assume that articles 17 and 18 of the 2003 Order provide relatively up-to-date and strong powers in that area.

The Committee Clerk:

That paragraph of the briefing paper relates to clause 47 of the Bill.

Mr C Stewart:

That refers to a transformed function. The Department has identified what it thinks is quite a significant weakness in the legislation. In relation to child protection, the desired end result is that there should be clear responsibilities on each person or body that has a role to play in education. It should be perfectly clear what their responsibilities are and what they are expected to do. There should also be measures to ensure that those responsibilities are fulfilled — that is where a gap was identified.

The existing provisions in articles 17 and 18 of the 2003 Order place clear responsibilities on boards of governors of grant-aided schools, but there seemed to be no effective means in the legislation for ensuring that they discharged those responsibilities. That is why the Department has suggested the additional clause, which would give the ESA the power to direct boards of governors of grant-aided schools if there is something that they are not doing, or are not doing correctly in relation to child protection. That is a significant provision.

The Department is sometimes told by stakeholders that it has given the ESA draconian powers to do all sorts of things — that is not the Department’s view. The one area where it has, very explicitly and quite deliberately, proposed that the ESA should have significant powers is on the issue of child protection. It is felt that if an issue of child protection arises, it would not be sufficient for the Department to be able to explain to the Committee afterwards exactly who got it wrong, and where the responsibility lies. The Committee would also expect the Department to have done something about that to ensure that it did not go wrong in the first place. That is why that power has been included.

The Chairperson:

Is there a deficiency there, as the law stands?

Mr C Stewart:

Yes, I believe that there is. At the moment, the Department is in a position, if something goes wrong, to come along afterwards and apportion blame. It is not in a position to make sure that it does not go wrong in the first place.

The Chairperson:

Does that relate only to the ESA’s power to intervene and to direct boards of governors in relation to child protection?

Mr C Stewart:

Yes. That is the only subject matter —

The Chairperson:

It is only in relation to that issue?

Mr C Stewart:

Yes; it is the only subject matter on which the ESA can direct boards of governors. It has no role in directing them otherwise.

The Chairperson:

If a board of governors decided to go down a particular road and do something else — subject to the board of governors meeting all other legal provisions — does the ESA not have the power to prevent the board of governors from taking a decision?

Mr C Stewart:

That is correct, with the exception of child protection. That reflects the role and the ethos of the ESA that we intend. It is not intended to be a command-and-control body; it is there to challenge schools when necessary — particularly around raising standards — but primarily to provide advice, support and assistance. It is not a command-and-control organisation. The policy is ‘Every School a Good School’, not ‘Every School a Controlled School’. That is our aim.

Mr McCausland:

Under the new regime, will the general duties of boards of governors be altered? Perhaps I missed it, but is there a list of the 10 duties?

Mr C Stewart:

That is in next week’s paper, which the Committee has not yet received.

The Chairperson:

Next week, we will deal with the specific issue of boards of governors.

Mr C Stewart:

I will make sure that we list all the duties of boards of governors in next week’s paper. The significant additional duty that is contained in the Bill is about raising standards. There are parallels to the issue of child protection: we want to ensure that everyone who has a role to play in education is absolutely clear about their responsibilities. Nowhere in current legislation does it state that a board of governors is responsible for the standards of attainment in its school.

That is a deficiency that was highlighted very clearly in the ‘Every School a Good School’ policy. We want to put that right, but we have not given the ESA the power to direct boards of governors in relation to attainment standards. We have proposed that a duty should be placed on boards of governors to co-operate with the ESA and the exercise of its functions. I am sure that the Committee agrees that that is not as draconian as a power to direct.

Mr McCausland:

Currently, the training for governors that is provided by the education and library boards is of indeterminate quality. How will that training be delivered in future?

Mr C Stewart:

It will be delivered in a variety of ways. There will be a statutory duty on the ESA to provide that training and support, or to procure it. In policy terms, if boards of governors in individual schools — or in groups of schools — feel that there are sound and credible alternatives to the training services that the ESA provides, we are certainly amenable to the idea of them procuring training services themselves. We would expect the ESA to support them in doing so.

As John McGrath and Gavin Boyd said in a previous session, it is very much about changing the nature of the relationship between the ESA and boards of governors from that which currently pertains with education and library boards. We want to move away from the current position — in which education and library boards offer services and boards of governors can, essentially, take them or leave them — to a situation in which the ESA is sensitive and responsive to what boards of governors seek. It is a commissioning type of relationship: we want the services that the ESA provides to be driven by what governors tell it are necessary, rather than the other way round.

Mrs M Bradley:

What Chris said more or less answers my question. In other words, the training that was provided for boards of governors was voluntary, whereas this time around, it will be compulsory. Is that correct?

Mr C Stewart:

No, it will not be compulsory for —

Mrs M Bradley:

Should it not be?

Mr C Stewart:

There is an argument for that. It is certainly advisable. We are asking governors to take on a significant set of responsibilities. I do not think that any governor should do so without being adequately trained and prepared.

Mrs M Bradley:

Are those responsibilities in relation to child protection?

Mr C Stewart:

Absolutely.

Mr B McCrea:

That gets back to the nub of the issue. I understood John McGrath to say in evidence to the Committee that the change in the ESA, as it is proposed now compared with it where it might have been before, was that it was to have a significant role in raising standards. I will look at the Hansard report to clarify what was said earlier.

Mr C Stewart:

So will I.

Mr B McCrea:

It is an important point. I understand that that change came from determinations by the Public Accounts Committee on literacy and numeracy failure and that the Department said that it had a great strategy but that it was unable to implement it. I understood that the ESA was to be able to direct schools to ensure that standards in all schools were raised, particularly in the key areas of numeracy and literacy. If I heard you correctly earlier, you said that that was not your intention and that all that you were going to do was point out to people that they might do better.

Mr C Stewart:

The position is somewhere in between the two ends of the spectrum that you have described. We do not take a laissez-faire approach and simply point out to schools where they could improve and wash our hands of them. Equally, we do not give command-and-control direction. The ‘Every School a Good School’ policy is predicated on self-improvement and self-development by schools, so it is a schools-led process. The role of the ESA will be one of challenge and support.

Intervention powers exist in current legislation and are not being introduced in the Education Bill. Those are not powers to direct; they are what we describe as the graduated response. Help can be offered where it is required. If necessary, boards of governors can be supplemented with additional governors if there is a need to increase the competence or ability.

In extreme cases, such as a failing school, the composition of a board of governors can be changed or completely replaced. In the most extreme of all circumstances, a school can be closed. Those are the exception, and we do not envisage or want to be in that sort of position. Our role for schools that can do better is, primarily, to point out where they can do better and to immediately offer the help, support, advice and services that they need to lead themselves into a better position.

Mr B McCrea:

I will not detain you, because there are other issues to discuss, but that gets to the nub of our concerns. I am still not sure whether the ESA is a friendly uncle or some sort of draconian policeman. Most of the governors value their independence and want to get involved, and I think that you have to come forward with clarity about what the ESA will be able to do. It is not enough to hide it in legislation that fudges issues or is clear only to legislative counsel. We need legislation that the people who are being asked to run schools can clearly understand.

Mr C Stewart:

That is entirely correct. The ESA is a friendly uncle or a critical friend, not a draconian policeman. When stakeholders say, as they do from time to time, that they do not like the legislation because it is full of draconian powers, I usually ask them to show those to me. They cannot, because those draconian powers are not there.

Mr B McCrea:

I can. For a start, there is rule 101, the ability to add governors, the ability to change governors, and the ability, ultimately, to close schools.

Mr C Stewart:

All that is covered by existing legislation.

Mr B McCrea:

Absolutely, but according to some, we have a failing education system. The schools inspectorate says that 30% of schools might do better, so you might argue that you should have used those powers. The issue comes back to the fact that with the existing uncertainty, people want clarity. I am sure that we agree that we want clarity on who will do what and the powers that they will have. We do not want any surprises coming out of the woodwork.

Mr C Stewart:

That is a fair point. I am sure that the Committee will want to hold the Department and the ESA to account for their use — or lack of use — of the powers in due course. Stakeholders often suggest that the Education Bill will introduce a new range of draconian powers — that is not true. Although people might think that the powers are draconian, they already exist in legislation. As you said, we are criticised for not using those powers as often as we are criticised for using them.

The Chairperson:

The Committee will discuss the issue of boards of governors at next week’s meeting. Chris will circulate that paper on the basis of the Minister’s letter to the Committee. Members will receive that paper in good time in order to ensure that they are able to read it and digest the issues therein before next Wednesday’s meeting. Is that OK, Chris?

Mr C Stewart:

I know what I will be doing this afternoon.

The Chairperson:

Although I do not want to curtail members, I remind them that the meeting should conclude in the next few minutes.

Mr Elliott:

I want to ask a brief question about a technical issue, because I have only become a member of the Committee recently. Can some of the 11 existing Orders not be subsumed into the new legislation in order to restrict the amount of cross-referencing? Is it possible to streamline the legislation?

Mr C Stewart:

Yes, that is possible, and it is one of the Department’s objectives. However, it will probably take some years to do so. This Bill will remove one of the Orders and will remove significant chunks from the Education and Libraries ( Northern Ireland) Order 1986 and the Education Reform ( Northern Ireland) Order 1989. I expect the second Bill to shear more off the 1986 Order to the point that very little of that legislation will remain. At that point, we might ask legislative counsel whether we can insert the remaining bits into different legislation in order to remove one Order entirely.

Stakeholders often ask — quite understandably and correctly — whether we could consolidate all the rules into one or two pieces of legislation. We can, and should, do so but not yet. Consolidation is a technical process that happens after legislation is reformed. Counsel cannot consolidate at the moment because it would be forced to hit a moving target, because the Department is still changing the legislation. When the two Bills on RPA are finalised — and, perhaps, one Bill to reform the legislation generally — we might be able ask counsel to create one consolidated piece of legislation. That is a mammoth and extremely technical task.

The Chairperson:

Is the 1986 Order the oldest piece of legislation that governs education, or is the Department still governed by powers that date from 1807 or whatever? That issue has been raised numerous times by local authorities, which claim that there is an archaic piece of legislation from 1879.

Mr C Stewart:

The 1986 Order consolidated the earlier pieces of legislation, the main one of which dated back to 1972. However, that is long gone. If my memory serves me right — if necessary, my colleagues will correct me — we discovered, through this exercise, that one or two pieces of the 1972 Order were still hanging around. We have dealt with such examples.

Mr Elliott:

Tradition is great.

Mr C Stewart:

I should add the caveat that some older pieces of legislation outside the education sector might affect education bodies. The Public Health ( Ireland) Act 1878 might have some bearing on the activities of public authorities.

The Chairperson:

That Act might affect some schools.

Mr C Stewart:

My colleagues in voluntary grammar branch have told me that royal charters affect some schools. Moreover, some schools are companies limited by guarantee and are affected by companies’ legislation.

Mr D Bradley:

You mentioned the ‘Every School a Good School’ policy during your conversation with Basil. Does existing legislation contain all the powers that are necessary to implement that policy, or will the Education Bill create additional powers?

Mr C Stewart:

The powers are in existing legislation. The Education Bill will clarify the responsibilities, but the interventions already exist in law.

The Department and the education and library boards each have some powers; those of the latter will transfer to the ESA. The strongest powers are, and will remain, with the Department. Therefore, if extreme circumstances arise in which a school must be closed, the Department will have the power to do that.

Mr D Bradley:

Will you explain what you mean by clarifying the responsibilities?

Mr C Stewart:

As I said earlier, nowhere in the current legislation does it clarify that boards of governors have a specific responsibility for standards of attendance at their schools. Equally, our colleagues in the education and library boards have told us repeatedly that they do not consider that their responsibilities for standards in controlled schools are made sufficiently clear in the legislation. That is why we are taking the opportunity to erase any doubt by ensuring that each person or body in the system knows exactly where the different responsibilities lie.

Mr D Bradley:

Schedule 13 in annexe C deals with:

“Education of children of compulsory school age; school attendance orders; duty of parent of registered pupil to secure his regular attendance at school; offences, penalties and enforcement.”

Those responsibilities, or functions, are being transferred from the education and library boards to the ESA. Will home-schooling be affected by the Bill, or is it catered for in existing legislation that will not be changed?

Mr C Stewart:

Existing legislation caters for home-schooling. If any of the education and library boards’ relevant functions need to be transferred to the ESA, minor amendments may be required, but we are not making any specific changes in that area.

Mr D Bradley:

Is home-schooling mentioned?

Mr C Stewart:

Off the top of my head, Dominic, I cannot say exactly where the provisions for home-schooling are to be found. However, if they are contained in any of the primary Orders, we will, through a series of minor amendments, transfer the functions to the ESA. If it would help, I will check that and come back to you.

Mr D Bradley:

Will home-schooling still be permitted?

Mr C Stewart:

Yes; there will be no change.

The Chairperson:

I declare an interest as a member of the board of governors of an independent school. Does that also apply to independent schools?

Mr C Stewart:

Nothing in the Bill changes the position of independent schools, which are largely unaffected by the legislation on education — with one highly significant exception. Independent schools are included in the inspection provisions and, therefore, can be inspected by the Education and Training Inspectorate.

The Chairperson:

Thank you. Members, you will probably go home and read your Committee papers tonight and tomorrow night, and return next week with more questions. Again, I thank Chris, Jeff and Eve for their attendance. Chris, I look forward to seeing you and your colleagues next week, same time, same place.