COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
25 February 2009
Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mrs Michelle O’Neill
Mr Edwin Poots
Mr Tom Elliott
Witnesses:
Mr Jeff Brown )
Mr Peter Burns ) Department of Education
Mr Chris Stewart )
The Chairperson (Mr Storey):
I refer members to their briefing papers for the session; the three items that we want to cover this morning are employment schemes, schemes of management, and boards of governors. Joining us are Chris, Jeff and Peter from the Department. Gentlemen, you are very welcome. Perhaps, Chris, you will begin with a word about employment schemes.
Mr Chris Stewart (Department of Education):
Thank you, Chairman, and good morning members. I will pass over some clauses reasonably quickly, as I am conscious that the Committee’s time is limited this morning, and I want to leave as much time as possible for questions.
Clauses 3 to 12 deal with provisions for schemes of employment, the aim of which is to capture and set out the employment arrangements that were outlined in the paper considered by the Committee on 21 January. Clause 3 will establish the education and skills authority (ESA) as the employer of all staff, teaching and non-teaching, in all grant-aided schools. Members will recall that the original proposal was to spread that provision over the two review of public administration (RPA) Bills, but, in response to representations made to the Department, it will now be contained entirely in the first Bill.
Clause 3 also defines the term “submitting authority”, which means the body responsible in each case for preparing and submitting the schemes of employment and the schemes of management. As drafted, the trustees are defined as the submitting authority for Catholic maintained schools; and boards of governors are defined as the submitting authority for all other schools. As we said at previous Committee meetings, the Department is considering an amendment to that clause, the effect of which would be to redefine the submitting authority as the owners or trustees of schools in all cases, but with the provision for the owners or trustees to delegate the function to boards of governors if they choose.
That reflects the views and representations made to the Department by stakeholders who made the point that owners or trustees are the guardians of schools’ ethos and that they ought to have a role in preparing and submitting schemes in order to ensure that a school’s ethos is properly reflected.
However, if a board of governors owns a school, the amendment will have little effect because the owners and the board of governors are one and the same.
Clause 4 sets out the scope of schemes of employment; it requires each grant-aided school to have one, and sets out the matters that the scheme should contain. The clause provides that employment schemes can impose duties on the ESA and on boards of governors, and requires that the schemes be consistent with education law and with schools’ schemes of management.
Clause 5 deals with the process of drawing up employment schemes. It places a duty on submitting authorities to prepare schemes and to submit them to the ESA for approval, and requires the submitting authorities to take into account any guidance that is produced by the ESA. There is, of course, a corresponding duty on the ESA to issue and periodically revise any such guidance and to include in it model schemes. Schools may adopt model schemes without change, adapt them to suit their needs if they so wish or produce their own schemes from scratch. The role of the ESA is to approve the schemes either without modification or, if necessary, with modification if the schemes are not consistent with education law or if a school has failed to take proper account of the ESA’s guidance.
Clause 6 outlines the reserve powers of the ESA to impose an employment scheme in the extreme circumstance of a school’s being unable or unwilling to produce one. Clause 7 provides for the revision of employment schemes by submitting authorities either periodically or at the direction of the ESA.
Clause 8 is particularly significant as it defines the effect of employment schemes in governing and regulating the actions of the ESA and boards of governors. Under clause 8, boards of governors will have a statutory duty to comply with their schemes of employment, and the ESA will have a reciprocal duty to put into effect decisions of boards of governors that have been taken in accordance with the schemes.
I emphasise that in its ratification role the ESA’s powers are strictly limited; that is deliberate on our part. The ESA is limited to sending a matter back to a board of governors to be reconsidered if, in arriving at its decision, the board of governors failed to follow its own scheme of employment. The ESA will have no powers either to direct a board of governors or to change a decision of a board of governors — it can merely refer a matter.
Clause 9 and schedule 2 of the Bill take us into slightly different, but related, territory. They provide for the transfer of staff from voluntary schools other than Catholic maintained schools and grant-maintained integrated schools to the employment of the ESA. Staff in other types of schools — controlled schools and Catholic maintained schools — are transferred by other equivalent provisions; namely, clause 22 and schedule 3. Clause 10 establishes the ESA as the employer of peripatetic teachers and requires the ESA to develop a scheme of employment that is similar to the scheme that will be in place for each grant-aided school.
Clause 11 is one of the most complex and difficult clauses in the Bill. It is difficult to read, and is in pressing need of significant amendment. The focus of the clause is the common funding scheme and the payment of salaries. Members will be aware that some schools operate their own payment systems while others pay their staff through central arrangements operated by the Department. The aim of clause 11 is to permit those schools that operate their own payment systems to continue to do so in future if they wish or to opt in to the central arrangements. That is the effect of 11(1) to 11(4).
However, a complication has arisen as a result of an earlier piece of legislation, and there is a difficulty that stems from the definition of a maintenance grant. The law as it stands would not allow us to give boards of governors control over their salaries budgets. Clause 11 contains a work-around for that situation for voluntary grammar schools and grant-maintained integrated schools, but has not solved the problem for controlled and maintained schools. The net effect is that clause 11, as it stands, would prevent the boards of governors of those schools from having control over their salaries budgets. That will not do; it is absolutely at odds with our policy, and we feel that the clause must be significantly amended. We might even ask for clause 11 to be withdrawn and substituted with an alternative.
Clause 12, which we discussed briefly last week, will permit the Department to modify employment law, but only where it is necessary to do so in order to ensure the smooth operation of clauses 3 to 11. It does not give the Department the power to change the fundamental responsibilities of employers or the fundamental rights of employees. I draw the Committee’s attention to a typing error in our paper, which refers to paragraph 2 of schedule 9 — it should, of course, read paragraph 9 of schedule 2.
I have covered a great deal of material very quickly, much of which was technical, so Committee members may want me to expand on some issues.
The Chairperson:
Thank you, Chris. Clause 8 gives the ESA the power to send back boards of governors decisions. If the ESA feels that there is something not right with a scheme that it has been sent by a board of governors, how long will it take for a resolution? Will the ESA continually send back a proposal until it is satisfied that its requirements have been met, even though a board of governors feels that it has done all that it could to ensure that a scheme is properly constructed? Will there be an appeal mechanism against either the ESA’s modification to schemes or its final decision?
Mr Stewart:
Your question raises two areas in which a board of governors could disagree with the ESA; the first is the preparation of a scheme. Our goal is an efficient and effective process — we do not want the ESA to take a long time or schemes to boomerang back and forth. The ESA will provide model schemes, which schools can consider. In submitting their schemes for approval, schools are asked to indicate the extent to which their schemes differ from the model scheme. That is to simplify the process; if a school adopts a model scheme without change, it can be approved almost instantly by the ESA. Similarly, if the changes that a school makes to the model scheme are slight, that will speed up the approval process. If a school starts from scratch and decides to write its own scheme, the process might take a little longer because the ESA will have to scrutinise it carefully and ensure that it complies with education law. However, we would expect that process to be completed expeditiously.
There is no formal appeal mechanism in the legislation, but if a school felt that the ESA was being unreasonable in holding up or seeking to modify its scheme, it could make a complaint to the Department. The Department would look into the matter and, if necessary, use its powers of direction under article 101 of the Education and Libraries ( Northern Ireland) Order 1986 if it felt that the ESA was not acting reasonably.
The other part of your question was what would happen if there was a disagreement between a board of governors and the ESA on a decision about a scheme. As I said, it is not our aim to have matters boomeranging back and forth between a board of governors and the ESA. The only grounds on which the ESA could decline to put into effect a decision by a board of governors is if a board of governors has not followed the scheme. It is not a question of the ESA second-guessing, disagreeing or coming to a different conclusion — if procedures have been properly followed, the ESA is legally obliged to put a decision into effect. If a school felt that the ESA was behaving unreasonably in that regard, a complaint to the Department would allow it to invoke the powers of direction under article 101 of the 1986 Order.
The Chairperson:
The programme ‘Room 101’ has been shown on television more times than the Department has used the powers in article 101 of the 1986 Order — it has been used only two or three times in recent years.
Mr D Bradley:
Are you suggesting that we put article 101 into Room 101?
The Chairperson:
There may be one or two individuals whom I want to put into Room 101, but I will not go there.
You said that there is no formal process in the Bill. Would the Bill be enhanced and would protection for boards of governors be enshrined if there was an appeals mechanism? Would such a mechanism give boards of governors confidence? The Bill consistently tells us that management schemes will be subject to education and employment law.
We are dealing with something that has a very technical and legal aspect.
I think that Committee members are worried that, as soon as the Bill is enacted, a problem may arise and everyone will say that the matter in question is not covered by the Bill, so there is not much that they can do about it. It will be too late then. From the Department’s point of view, would it be advisable to have an appeals mechanism? Is such a mechanism included in the Health and Social Care (Reform) Bill, given that the Health Service is experiencing a great deal of change? Would an appeal mechanism add value? After all, the role of the Committee is to scrutinise the Bill.
Mr Stewart:
It is certainly worth considering. As for our sparing use of article 101, there is an African proverb: “talk softly and carry a big stick”. We have not used that provision often, but schools and education and library boards know that it can be used if necessary. An appeals mechanism may give confidence to boards of governors, and I can understand why some may look for one.
However, rather than creating an additional specific appeal or challenge mechanism, it might be possible to incorporate into the clause a cross-reference to article 101; that could be done rather than introducing a new procedure. There is a precedent, as the inspection provisions include a cross-reference to article 101 that makes it clear that if we need to remedy a defect that has arisen as a result of the inspection of a school, article 101 can be called into play. Therefore making an explicit link to article 101 may be worth exploring if it would give confidence to boards of governors if they felt that, in the discharge of its functions under clause 8, the ESA was behaving improperly.
Mr Poots:
My concern is that, although Chris is a very reasonable guy —
Mr Stewart:
Will that be in the Hansard report?
The Chairperson:
Yes; it is now official.
Mr Poots:
Chris puts his case very reasonably. However, when one starts to implement such measures, one often finds that there are those in the Civil Service who push things to the limit and behave as jobsworths. Clause 8 runs contrary to the ethos of the review of public administration, which aims at reducing bureaucracy. However, clause 8 will result in the ESA’s micromanaging the work of schools and their boards of governors. I do not know whether it is appropriate to have a provision that will allow that to happen. That is not what the RPA is about; therefore I question the need for clause 8.
Mr Stewart:
We recognise that concern. Clause 8 and the policy have been drafted with a view to preventing the very scenario that concerns Edwin. The ESA simply must not get involved in the micromanagement of schools. It would be wrong, counter-productive and impossible — even if it were the right thing to do, the ESA will not have the capacity to micromanage to that degree.
However, we believe that clause 8 is necessary because if, in future, the question is asked who is the employer in education, the answer will be that it is the ESA and schools acting together: having a single employer and individual schools acting on behalf of the ESA in discharging functions. It is important that there is clarity in that relationship and in what schools are responsible for, what the limitations are, what the ESA is responsible for and, equally, the limits of its functions. That is what we propose with those clauses, particularly clause 8.
Members may wish to see more detail of that relationship in order to be satisfied that we have got the balance right. The difficulty with that is that the detail will be in the schemes of management rather than in the legislation; therefore it may take some time to instil confidence in members on that issue. However, without such a clause or such provisions, schools would be at a disadvantage because the parameters of their relationship with the ESA would not be clear. There would be greater scope for the ESA to interfere unreasonably in the day-to-day management of schools if its responsibilities are not sharply delineated.
Mr Poots:
The Committee will require further discussion on that matter, Chairman.
Mr D Bradley:
Will schemes of employment under the ESA differ in any major ways from existing schemes that work, presumably, between the Council for Catholic Maintained Schools and teachers, and between education and library boards and teachers?
Mr Stewart:
It is not easy to provide direct read across with an existing scheme or approach. We could identify schemes of management as models to be followed in future. The concept of schemes of employment is relatively new; however, some of the content of what we are discussing is not. In the paper, I have tried to point out where practice exists. It is in legislation for controlled and maintained schools. Paragraph 9 of schedule 2 to the Education ( Northern Ireland) Order 1998 sets out in quite some detail the respective roles of education and library boards and boards of governors in employment matters.
We want to go at least that far — and further if we can — to place functions, autonomy and control firmly in the hands of boards of governors and restrict sharply the ESA’s ability to do anything other than support and assist them to take that forward. Paragraph 9 of schedule 2 places those significant responsibilities in the hands of boards of governors, particularly for matters such as the suspension and dismissal of staff. Those are matters for boards of governors; and for them alone. We seek that level of autonomy in the draft scheme.
Mr D Bradley:
Are those the major differences?
Mr Stewart:
It is not a question of major differences, because at present there is not a simple before and after with which to make that comparison. There are not schemes of employment for all schools in the way that there will be when the legislation comes into effect. There is a range of approaches across various types of schools and sectors — some with more clarity than others. At present, the clearest model is for controlled and maintained schools as set out in schedule 2. The difference is that if we take that as our starting point, we want to go further: we want at least that level of autonomy for boards of governors — preferably greater.
Mr D Bradley:
At present, the negotiating apparatus between teachers’ unions and the Department is mediated through the General Teaching Council for Northern Ireland. In future, will the ESA be the employment authority that will negotiate with trades unions on teachers’ salaries?
Mr Stewart:
Yes, and for non-teaching unions as well. There is already a collective negotiation arrangement between, on the one side, the teaching council and, on the other, current employers and employing authorities that act together in what is known as the “joint working party”.
It is chaired by a representative from the voluntary grammar sector, so all the sectors — as employers — work together. In that sense, there is no change. The only change is that there will be one organisation rather than several, but there will be the same collective approach to trades union engagement.
Mr D Bradley:
Will teachers’ conditions of service be changed by the arrival of the ESA?
Mr Stewart:
No — other than through the normal process of negotiation between trades union and employer. There is consistency in terms and conditions across all the sectors and school types, but there is not always consistency in their operation.
Mr D Bradley:
I raised the concerns that Irish-medium schools have about maintaining their ethos, because, in most cases, their trustees do not own the schools; the boards of governors do. They are worried that a board of governors could change the status of a school without the trustees’ blessing, and they want more powers to maintain the ethos of Irish-medium schools. Will that be provided for in the Bill?
Mr Stewart:
It will be difficult to go further than we have in the Bill or beyond a possible amendment to “submitting authority”. However, such an amendment would not deal with your concerns, because if a board of governors owns a school, changing the definition of “submitting authority” would make no appreciable difference.
I do not see much, if any, scope for us to restrict the day-to-day operation of a school in legislation. If the change was of such a profound nature that it required a development proposal, there would be a requirement to consult the trustees of a school and take their views into account. However, I do not claim that that would give the control or veto that they may be looking for in that case. I see no easy way of achieving that outcome in legislation.
Mr D Bradley:
Will you write to me about it?
Mr Stewart:
I will; I am conscious that a reply to you on that is long overdue, and I apologise.
The Chairperson:
Paragraph 4 of page 147A of your paper states:
“The Department is considering a possible amendment to this clause”.
When the Bill was being drafted, the perceived wisdom in the Department was that clause 3, as it stood, was acceptable. Paragraph 4 goes on to give the reason for the Department’s change of mind:
“to redefine the submitting authority in all cases as the owners or trustees of schools, with an option to delegate the functions to boards of governors. This reflects the views of a number of stakeholders, who suggested that school owners should be given the submitting authority role, so that they can ensure that the ethos of the school is reflected appropriately in the schemes of management and employment.”
Will we be allowing schools’ trustees to define whom they can and cannot employ on the basis of their ethos and not on the basis of the requirements of the school?
Mr Stewart:
No is the short answer; no scheme of employment or management can be in contravention of education law or employment law. We will make it clear to any submitting authority, whether trustees or boards of governors, that it is proper for the ethos of a school to be reflected in its scheme of management and its scheme of employment — within the limits imposed by the law.
For example, it might be proper in a recruitment exercise to test candidates’ knowledge and understanding of the ethos of a school, but it is not possible to limit unlawfully the eligibility of candidates outside that.
The Chairperson:
What is the paramount importance for stakeholders? It seems that some sectors, which I will not name, are more interested in the preservation of their institutions than in delivering good education. Who are the stakeholders to whom the paper refers? Why does the Department feel that it is necessary to amend clause 3 now? I have not concluded whether I think that it is necessary to amend it.
Mr Stewart:
Neither have we.
The Chairperson:
When the Department brought the Bill to us, the perceived wisdom was that clause 3 was as it should be. However, due to the views of stakeholders, it seems that concerns on clause 3 have been raised.
Mr Stewart:
I have no difficulty advising the Committee which stakeholders made the representations, because I am sure that they will make the same representations to the Committee if they have not already done so. The trustees of Catholic schools and the Irish-medium sector both wanted that change, because they wanted the employment scheme to reflect their educational ethos. In Irish-medium education, for example, a school’s trustees and board of governors want to ensure that, in order to assess suitability for employment, candidates understand the immersion model of education that is provided in their school, how it operates, its intended benefits and how it delivers a quality education.
Similarly, the Catholic trustees made the point that Catholic education is not education for Catholics; rather, it is a form of education that reflects the Catholic ethos. They expect to be able to — as they currently do — test candidates’ knowledge and understanding of Catholic education. That does not mean that only practising Catholics are employed in Catholic schools. People in that sector often quote a particular example of a large Catholic post-primary school in which the principal is the clerk of session in his local Presbyterian church. On appointment, that candidate was tested, and the school was entirely satisfied that he understood and appreciated the ethos of Catholic education, the wider ethos of faith-based education and was capable of presiding over its delivery in the school.
Those representations have been made to the Department. They are not unreasonable, and we are minded to make the change. However, we have not reached a firm conclusion, and, I am sure that the Minister wants to know the Committee’s views on that matter in order to help her decide.
Mr D Bradley:
I forgot to ask a question about the employment issue. Will you discuss the sample schemes of employment with the teachers’ unions?
Mr Stewart:
Yes.
The Chairperson:
I want to tease the issue out further. Is there any suggestion that the Northern Ireland Commission for Catholic Education or the trustees will issue a legal threat if the legislation is not amended?
Mr Stewart:
No, I am not aware of such a suggestion.
The Chairperson:
I am concerned that the controlled sector — the Cinderella of education in Northern Ireland — is being left out on a limb and up in the air. Your submission states that “further consideration is required”. Every time that the Committee discusses the controlled sector, officials use language such as “we are discussing”, “we are looking at” and “we will consider”. Nothing seems to happen proactively in a sector that comprises £2·3 billion of the estate and is the largest sector in educational provisional in Northern Ireland. It always takes second place, and I am becoming concerned at how the controlled sector is being treated.
You mentioned two sectors, and I would love to not be in a situation where we must deal with so many sectors. However, some people have insisted for years that they must have the right to have their own sector. You said that the Department is considering amending clause 3, but we do not know what will happen in the controlled sector. You submission states that:
“Further consideration is required on whether the submitting authority role ought to be assigned to the new ownership body for controlled schools”.
We do not yet know how that body will look or what its membership will be. Moreover, we are not yet aware of the issues of the sectoral body, the support body, the advocacy role and the ownership. That is yet another problem that is laid at the door of the controlled sector and is going nowhere.
Mr Stewart:
I agree with almost all the points that you raised. However, I would not equate the need to address those issues and consider them carefully with putting the controlled sector in second place. You are right to raise the list of points that have yet to be determined about the ownership body. Given that Committee has not yet been given a clear picture of what the body will look like, it might well have been right to be concerned, if, this morning, I had said either that the decision was to give that role to the body or not to do so.
I raised the question in the paper because, if one followed the logic earlier in the paper without questioning it at all, one would assign that role to the controlled schools’ ownership body. However, I raised the issue, and I invite the views of the Committee before we come to any conclusion, because we must consider whether that role would fit with the other functions that we want the body to discharge. The answer to that is not yet clear.
On the one hand, the body could be restricted to being very narrow and very technical, with little, if any, other function than that of ownership. On the other hand, it could have a broader range of functions, one of which might be ownership, and another of which might be the nomination of some governors. That would change the nature of the body quite significantly.
The Department has genuinely not yet reached a conclusion on that issue, and the earlier paper that set out those matters is still undergoing consultation. I do not want to give the impression that the Department regards those issues as unimportant, or does not want to address them expeditiously. We do, but we genuinely want to hear the Committee’s views before we come to any conclusion.
The Chairperson:
There are a lot of technical details involved, but a couple of questions must be answered: will the establishment of the ESA, the clauses making provision for employment schemes and the Bill in its entirety result in equality between the sectors in education? Or, will there still be sectors that — because the trustees own their own schools, or for a variety of other reasons — are able to enjoy a privileged position, but that still talk the language of equality even when it does not exist? I listen to people talking about equality, but that is not reflected in what we are hearing this morning, nor is it reflected in a lot of the other details of the Bill.
Mr Stewart:
The Department’s aim is to provide for exactly what you suggested — equality. We do not want any school or any sector to be in a disadvantaged position. We will await the judgement of the Committee as to whether the legislation is achieving that. If the Committee feels that it is not, the Department will have to consider those issues very carefully.
There are differences, particularly between the controlled sector and the other sectors. Some of those differences are historical, and some are intrinsic to the nature of a set of publicly-owned schools, as opposed to privately-owned schools. The Department’s task — and it is not always an easy one, but it is essential — is to ensure that that does not give rise to any sort of institutionalised inequality. If Committee members feel that we have not got it right yet or that there are issues that have not yet been dealt with, we are certainly open to suggestions and representations. Our aim is the same as yours. We want every school to be in a position in which the boards of governors feel that they are on a level playing field, and are not institutionally disadvantaged by the school type, school ownership or school sector, and certainly not by any aspect of the legislation.
The Chairperson:
I apologise to Members for hogging the discussion, but there is another issue that I want to discuss. We were speaking earlier about the management scheme. Your submission states that:
“The key point to emphasise is that this is a decision for the school. Each school, regardless of sector or type, should have the degree of autonomy that it wishes to have, and that matches its capacity.”
What does that mean? It is a very well placed little line that was inserted by the authors of the paper, whoever they were, but what is the thinking behind it?
Mr Stewart:
I assure you, on behalf of the author of the paper, that there is nothing sinister.
The Chairperson:
I am reassured.
Mr Stewart:
We hope that it is a pragmatic recognition of reality. Some schools — particularly the voluntary grammar schools, but also some of the larger Catholic maintained and controlled schools — indicated that they want the maximum level of autonomy, and said that they have a good and capable board of governors and that they want to do as much as they can, but with as little interference as possible from the ESA.
Nevertheless, it is likely that some smaller schools — and this is not a value judgement of them — will wish to have the option of leaving some of those matters in the hands of the ESA, which would act on their behalf, and that is a perfectly legitimate choice. In our submission, we attempted to emphasise that a school’s level of autonomy ought to depend on the level of the capability of the governance of the school. Schools must make that judgement; not the ESA, which cannot be allowed to hand out autonomy as though it were a prize. Schools must decide what they are capable of doing and act accordingly. The ESA’s primary job is to support and advise schools, and when necessary, to challenge them.
Mr McCausland:
I do not hold it against the Chairperson for hogging the questioning, because this matter is important and concerns about it must be hammered home. This session is getting to the heart of the issue.
There is a perception — which, in many ways, is valid — that the model is designed to suit the most vocal sectors. Consequently, we may end up with square pegs in round holes, and the controlled sector might be forced to adopt an inappropriate model. Therefore, we must pause for a while in order to thoroughly consider the implications of the proposals.
I do not wish the situation that was described by the Chairperson to arise; whereby, in effect, one sector has preference to, and an advantage over, another. If that were to be the case, the Bill will go nowhere — it will be dead in the water. Decisions taken now will stick for 30 or 40 years, so either we get it right now, achieving fairness and equality for everybody, or we must stick with what we have, because we are not moving. Those matters must be tied down, and we must tease out the implications, because a mountain of information can be buried in a single sentence.
Earlier, you gave an example of a scheme of employment, about which people must understand. Can you give some practical examples of how the ethos of a school might be reflected appropriately in its scheme of management, particularly with respect to the controlled sector?
Mr Stewart:
I must confess that that question is difficult to answer. The examples that sectors have put to us tend to relate more to schemes of employment. The only honest answer that I can give is that I cannot think of a specific example in which a school’s ethos would be specifically reflected in its scheme of management, other than, perhaps, in links between a scheme of management and a scheme of employment. As ever, the difficulty with the controlled sector is to ascertain what its ethos is. I do not believe that any ethos spans the entire sector. As we discussed previously, bringing an ethos into being is a challenge for the controlled sector’s representative body.
Mr McCausland:
In a sense, therefore, you are being asked to buy a pig in a poke, because, until that question is resolved, you will not know the practical outworkings. Without wishing to criticise you, that is an indictment of the present system.
In a way, there is an understanding of what the religious and cultural ethos of the controlled sector should be. Whether it actually delivers that is another matter. I am interested in the fact that it is difficult to come up with examples. It is clear cut. This is a huge issue for the maintained sector, and it is a huge issue for the Irish-medium sector. We do not know about the controlled sector — although I think that some of us do know — but it is the issue of how that would work out in practice which is causing real concern.
Mr Stewart:
We recognise the issue, and we recognise the concerns. However, there is absolutely no desire on the part of the Department to treat the controlled sector differently. The differences and challenges to be faced tend to arise from the fact that there is simply no tradition of operating in this particular way, because there never needed to be a tradition within that sector. It has been a publicly-owned sector which has been controlled and managed by education and library boards. Therefore, many of the issues of ethos or autonomy have, if you like, been dealt with on behalf of the schools by their parent bodies.
We are now trying to move to a situation in which schools have much more autonomy. However, that needs to be influenced, and contributed to, by sectoral and individual ethos. We are trying to create something within a sector that did not exist because there was no need for it. Clearly, there is a need for it now, for the reasons that Mr McCausland has given, which is to ensure that we have equality of treatment and opportunity. However, that is difficult, and it will take time. I do not claim to have a magic solution that I can bring to the Committee, and it would be wrong for me to do so. Nevertheless, we recognise the concern, and we will continue to work in that area to try to find a solution.
Mr McCausland:
The phrase “it will take time” concerns me. That would, effectively, be like asking me to buy the pig in the poke. I will not be buying anything until those issues are tied down. It cannot be left until the end of the year in the hope that a working group will have created a structure. The matter needs to be sorted out now before any Bill goes through the Assembly.
Mr Stewart:
I understand the concern. However, the Committee might be equally concerned if I were to come along and say that we had drawn up an ethos for the controlled sector over the weekend and that we are going to impose it. I am not certain that that sector, or anyone in it, would have much confidence that we would get it right the first time.
Mr McCausland:
I have said on three or four occasions that if one considers the matter as a human-rights issue — the rights of the children — and an equality issue across sectors, it is not too difficult to work out the answer. The Department has been reluctant to do that.
Mr Stewart:
I am intrigued as to what the answer is.
Mr McCausland:
The Department has been reluctant to deliver on its obligations to children in the controlled sector.
The Chairperson:
I am worried too that we may have a situation in which we have put the cart before the horse. We are being asked to buy-in to a structure that would allow the ESA to be the owner of the controlled estate — albeit that is not the preferred option for the Department — then, at some time when the issue has been sorted out and we have been able to get agreement, the ownership would be transferred to the body that would own the controlled sector. However, we are not sure as to what the relationship of that body would be to the controlled sector. There are far too many ifs and unknowns.
We also have two other sectors — the maintained sector and the Irish-medium sector — that have clearly said that clause 3 is unacceptable and has to be reworded. They have said that they have their ethos and want to maintain their identity and preserve who they are.
I concur with Mr McCausland’s points. We want to ensure that the Bill leads to equality. However, there is not even equality in the way in which the different sectors are being treated in the process. The subgroup of six to eight people is not even established yet. That has to happen.
The point has been made on several occasions in this Committee that the controlled sector is starting at a very low base compared with other sectors, and it has a long way to go. However, judging by where we are now, the controlled sector does not have much time. A gun has been put to its head, and it is being told that it must get up to speed or else the ESA will look after everything. To be honest, no one in the controlled sector has any confidence that the ESA will look after their interests and provide for them. Those are serious questions to which we must have answers. When will the Department take seriously the issues that affect the controlled sector and inject equality into the process? To date, that has not happened.
Mr Stewart:
I assure the Committee that the Department takes those matters seriously now. We want to address the issues that have been raised. It would be wrong of me to claim that I can address them in a matter of weeks; it will take time. Nevertheless, the timescale is not as stark as you have portrayed it, Chairperson. Yes, we want to ensure that come 1 January 2010 — as the Committee has encouraged us to do — we do not leave the controlled sector lagging behind the others. However, that does not mean that by 1 January 2010 there has to be a sectoral ethos that is set in stone for ever. The ethos of that sector, like that of any other sector, will continue to develop and evolve as the sector itself continues to develop and evolve. Our job is to ensure that it has the capability and the capacity to do that.
As far as confidence in the ESA is concerned, I cannot comment on the views that people in the controlled sector might hold; they must do that for themselves. We are not asking them to have confidence in the ESA to represent them or advocate on their behalf; we want to ensure that people in that sector are able to do that for themselves. However, we want to ensure that the ESA understands all the sectors, treats them with equality, and discharges its functions in an efficient, effective and fair manner to all sectors. That is what we will aim to do in the legislation.
Mr McCausland:
You can forget about 1 January 2010 unless you get this right. No one will vote for it in the Assembly.
Mr Stewart:
We are all subject to the will of the Assembly. As I said, we wish to expedite this matter. We share the same aims and concerns as the Committee, and we are happy to work with you on the legislation. I am happy to take any particular suggestions that you have back to the Minister about how we might progress the issue. I am intrigued by the solution that you half-offered to me earlier; I would not mind hearing more about that.
Mr McCausland:
It is a matter that I touched on several months ago, and I will come back to it again with you.
Mr B McCrea:
It has been interesting listening to folk who have raised many of the concerns that I already voiced. As Edwin said, the problem is because you speak very nicely about things and you are such a nice chap, it would be hard to —
Mr Stewart:
I hope that the Hansard report will record that as well.
The Chairperson:
For the second time, Chris, yes.
Mr B McCrea:
It strikes me that this is a sugar-coated poison pill. In all such issues, the devil is in the detail, and that is where the problems arise. Your submission states that:
“In preparing schemes, submitting authorities must take into account any guidance produced by the ESA. Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence. However, it cannot be unreasonably ignored.”
There is always a “however”. It goes on to say:
“The ESA may approve schemes, or modify them if they are not consistent with education law, or if they failed to take account of guidance.”
Despite all the smiles, and “don’t worry, we trust you, it’ll be OK”, when this Bill becomes law, it gives the ESA, driven by ministerial directive, carte blanche to do what it likes.
Mr Stewart:
I disagree with you, and your interpretation of that. In the paper, I tried to convey the fact that guidance is guidance. It is not the same as legislation, and it is not the same as direction. Neither the Department nor the ESA could, even if they wanted to, insist on any school following guidance to the letter. The test — if there needs to be a test in cases of dispute — is always one of reasonableness. A court would consider the actions of the ESA and of a board of governors to determine whether those actions are reasonable.
If we attempted to put something into guidance which was unreasonable, it would not stand. If we attempted to follow an interpretation of guidance that was unreasonable, it would not stand. If we attempted, unreasonably, to compel a board of governors to take a certain course of action, it would not stand, and it would have very clear and simple recourse to the courts to stop the ESA.
Courts take a very dim view of Departments or public bodies not understanding the limitations of their powers in relation to guidance. In the paper, I was simply trying to convey to the Committee that the Department understands the limitations of guidance and what it means in the circumstances.
Mr B McCrea:
Are you familiar with the case of Pepper v Hart?
Mr Stewart:
There is a response to that along the lines of: in the pubs and clubs of Antrim, they talk about little else. However, I am afraid that I am not familiar with that case.
Mr B McCrea:
I invite you to consider the case of Pepper v Hart and the subsequent judgement made in the House of Lords in 2003 in the case of Wilson and others v the Secretary of State for Trade and Industry. The important issue that that judgement raised is about whether the deliberations — the words that come from people such as you or the proponents of Acts — form part of the overall Act.
We have talked about explanatory notes and guidance as being part of Bills, but in the final part of the notes that I have, and I will stand corrected, is that the object is to ascertain what the intention is as expressed by the words enacted. Guidance, explanatory notes, and warm words said in these Committee meetings and being chucked around in the Assembly count for nothing. Unless it is written down in the Bill and enacted, it has no validity. As the Chairperson said, there are far too many “ifs, buts, maybes” and “we will deal with this later” for us to pass anything that is in front of us.
I will say what the Chairperson has been too gentlemanly to say and I will take the flack for it. There is a concern that those from the maintained sector are worried about employing Catholics, because they think that it is part of their ethos. It could even be said that the Irish-medium sector wants to make sure that they employ people who agree with them and that that is the way forward. That may not be an unreasonable position in itself, but we will reach a situation whereby we will have institutionalised inequality. The impression that one gets is that one side is governed by doing what is equal and fair — whatever that side is — and that the other side has got an advantage because it has carefully included things under the guidance of ethos. That will not stand.
The Department will have had submissions from people other than those who are in those sectors, including representatives from the governing bodies association (GBA), the Assessment and Qualifications Alliance (AQA) and whomever, who will make it quite clear that the appointment of their teachers is central to them as well.
Unless we get firm detail, written down in a Bill — I am sorry, I cannot speak for the others — we are not going for this. I have expressed my reservations to you before, and I restate them for the record.
Mr Stewart:
There were a number of points that I could respond to, but the theme running through the comments invites me to comment on the motivation of some of the sectors in the representations that they made. You will understand that I will not do so, because I am not in a position to do so.
In effect, you are arguing that the Department should move some of the detail of guidance and place it on the face of primary legislation in order to provide certainty. That is a perfectly reasonable argument, and it is one that the Assembly may wish to consider. We will follow the will of the Assembly in that regard.
I will not argue with your interpretation of the case law, because I have pleaded in defence to the Committee many times that I am not a lawyer. Certainly, the principles that we follow are as instructed to us.
A court will always consider the legislation first and foremost and use the interpretation of a normal and right-thinking individual. Where there is doubt, which can happen occasionally with even the best-drafted legislation, a court or tribunal will examine the proceedings in Parliament, or in this case the Assembly, to fathom its will when it passed the legislation.
When interpreting guidance, a court or tribunal will examine policy statements or utterances by officials or Ministers to determine the intention behind legislation. We cannot rely on the defence that what we might say to the Committee is different from what is in the guidance: if I make a comment about guidance, a court or tribunal can take that into account when interpreting what the guidance was intended to achieve.
Mr B McCrea:
I invite you to check with your legal department, because a House of Commons standard note states that:
“Following the decision in Pepper v Hart in 1993, if primary legislation is ambiguous or obscure
— And we are making a fair stab at that —
“the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation.”
The House of Lords contradicts that and says that what is enacted is the will of Parliament — or in our case the Assembly — and that is the issue. Chris, you can check those references.
We need detail, because the constructive ambiguity approach will not work — people do not trust the ESA. I am not being critical of the ESA’s objectives on efficiencies, but fundamental issues are emerging, and unless they are dealt with in the legislation, you will have difficulties with your deadline for the passing of the legislation.
Mr Stewart:
I understand that, and I am relieved that we agree on the interpretation of the case law. You are saying that there is neither consensus nor trust on some of the detail appearing in guidance and that you want to see it appearing in primary legislation. If that is the will of the Assembly, it can be done, and you are right that it will have implications for the timescale of the legislation.
Mr B McCrea:
I invited you to consider the case law before you say that we agree, because there was the case of Wilson and others v Secretary of State for Trade and Industry in 2003.
We want the detail in the primary legislation, because we want to know what everything means. Only then will the Bill have a chance of progressing.
Mr Stewart:
I note the Committee’s views.
The Chairperson:
It is welcome that we have a document from the Department that states:
“Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence.”
That might be in contradiction to the perceived wisdom that exists about other guidance that will be issued over coming weeks.
Mr Stewart:
I could not possibly speculate on what you might mean.
The Chairperson;
However, we will not stray into that debate again today, but it is good to note that.
Mr D Bradley:
The Minister announced a review of the education workforce after the classroom assistants’ dispute. Will that affect the work on employment schemes?
Mr Stewart:
Not that I am aware of, although I am not familiar with the terms of reference of that review. I will check that and get back to you.
The Chairperson:
The terms of reference for the review are set out at tab 4 of the Committee folder on page 155.
Mr D Bradley:
Thank you.
The Chairperson:
The next issue is the schemes of management. After that, we will address boards of governors, which is a huge issue — we will not curtail the discussion on that, so we may have to return to it.
Mr Stewart:
Clauses 30 to 33 focus on schemes of management, which will be the central governance arrangements for all grant-aided schools.
The schemes of management will cover membership, the procedures of boards of governors, the day-to-day management of schools, the respective roles of boards of governors and principals and the composition and role of any committees of boards of governors that may be established.
The clauses are similar in wording and construction to clauses 4 to 7 on employment schemes, and they will operate in a similar way. There will be a requirement on schools to draw up schemes of management, having regard to guidance produced by the ESA, for the ESA to approve those schemes with or without modification and for the schools to follow the schemes as they are in place. That is similar to the effect of the legislation on schemes of employment, which, in this case, is not such a new phenomenon. Provisions are already in place in articles 9A to 9D of the Education and Libraries ( Northern Ireland) Order 1986, which will be replaced by those provisions when the Bill is enacted.
The Chairperson:
You referred to the provisions in articles 9A to 9D of the 1986 Order. How precisely do the new provisions in clauses 30 to 33 compare with the existing provisions? Are there any new provisions?
Mr Stewart:
No. The wording may be slightly different, but the effect is very similar. There is no significant change in that area.
The Chairperson:
We move to the issue of boards of governors, which is covered by clauses 34 to 36 and clauses 47 and 48. I remind members that we are not yet considering the clauses in detail; we will return to consider them individually. We want to consider the underlying policies that inform the clauses.
That is why, despite some members’ concerns, we wanted an extension to the Committee Stage; we wanted to ensure that we had enough time. Next week, I hope to provide the Committee with an outline of how we will consider the clauses. As yet, we do not have all the responses from those with whom we need to consult.
Mr Stewart:
I am glad that you told me that today’s discussion was broad-brush rather than detailed.
Clause 34, on which we touched last week, stems directly from the Department’s policy on raising standards, as set out in the ‘Every School a Good School’ policy. The clause aims to ensure that there are clear responsibilities throughout the education system — in this case on boards of governors — in relation to raising standards. The clause proposes two duties for boards of governors: the first is to exercise all their functions with a view to promoting high standards of achievement; the second is to co-operate with the ESA in the exercise of its functions in relation to raising standards.
I draw members’ attention to the lack of the ESA’s powers in that regard. There is no power for the ESA to direct boards of governors in relation to that duty or in the related matter of the exercise of their employment functions. As we discussed at last week’s meeting, that reflects the policy of autonomous, self-improving schools, supported and challenged by the ESA but not directed or controlled by it.
Clause 35 amends the provisions on the composition of boards of governors of various types of schools. It is a long and difficult clause and a taxing read that will challenge anyone’s powers of mental arithmetic. The net effect is, however, quite simple. Some governors are currently appointed by the Department or by the education and library boards, but, in future, those governors will be appointed by the ESA. That group of governors will be known as community governors, who are defined as:
“persons living or working in the local community”.
The important point to emphasise is that the composition of boards of governors is otherwise unchanged. That includes the right of the Transferor Representatives’ Council (TRC) to choose governors for controlled schools.
Clause 36 merely removes the barrier on part-time teachers serving on boards of governors. Clause 47 is on different territory, and it relates to articles 17 and 18 of the Education and Libraries ( Northern Ireland) Order 2003 on child protection.
Our aim is to ensure that there are clear duties and responsibilities on child protection throughout the education system, and also an effective means of enforcing those duties and responsibilities. It is, therefore, because of its significance, the only provision in the Education Bill — or indeed in existing legislation — that would give the ESA power to direct a board of governors.
Clause 48 is the companion to clause 47; it places a duty on boards of governors, and other education providers, to co-operate with the ESA in the discharge of its child-protection functions.
The Chairperson:
Under clause 35, would governors, who were previously appointed by the Department and by the education and library boards, in future be appointed by the ESA? In light of our discussion about defining ethos, it seems that there is a defined ethos in the maintained sector and in the Irish-medium sector, but there is an obscure, bland, undefined ethos for the controlled sector.
Will the community governors have to be trawled for and considered as suitable candidates in the light of ethos as well, or will the sole criterion be that they live and work in their community? People who live and work in a local community could be as completely averse to the ethos of a school as I am to — I had better not give an example.
Mr Stewart:
Hansard is listening, Chairman.
The Chairperson:
There is a worry that such people will be appointed. If there was a legal challenge to an appointment that had been made at political or ministerial direction, the courts could say that since the appointment was competent under law there was nothing that they could do to change it — because the law is vague and ill defined.
Some people could be appointed to the board of governors of a school solely because they are being directed by a political aspiration to influence and change the nature, ethos, direction and decisions of that school. That would create confusion and confrontation in the boardrooms of schools where, to date, there has been harmony. Despite all the challenges and difficulties, there has been no problem with the people who sat around the governors’ table.
Mr Stewart:
We agree entirely. We must prevent such a situation. The only formal requirement in the legislation is the one that you pointed to: the definition of community governors. However, in future, as at present, when applying to serve as governors, applicants are asked to indicate the school or type of school in which they wish to serve. Where possible, an attempt is made to match preference, and there is always, and will continue to be, a legal requirement for consultation with schools when governors are being appointed to ensure that there is no disharmony.
It is not the Department’s intention to do anything other than appoint governors who have an understanding of, and an empathy with, the ethos of the schools to which they are appointed, and, beyond that, to appoint them on the basis of their capability and competence to run a school effectively and to discharge a very important public service.
I recognise your concerns; they have been expressed to the Department by every sector on that issue. I say to those sectors what I say to the Committee, as well as telling them that the Department could make such appointments now if it wished, since the Department and the education and library boards appoint governors to schools. If the Department had an improper purpose in mind, it could be achieved at present just as easily as in future. However, we have no improper purpose in mind.
The Chairperson:
A Bill should be about getting things right and addressing problems and deficiencies that have been experienced in the past. The issue involves every school — controlled, maintained, Government-maintained and integrated. How difficult would it be to amend clause 35(2)(c)? That is essentially the nub of the matter. That clause states:
“ ‘community governors’, in relation to a school, means persons living or working in the local community;”.
Surely it would not be difficult to amend that clause to reflect the Department’s intention. The Department’s intention — no matter how good — is not worth the paper that it is written on if it is not in the Bill. We will not be convinced that that intention will be fulfilled unless we see it in the Bill. Some thought should be given to how clause 35 can be amended to reflect the Department’s intention and the worries of every sector.
Mr Stewart:
We are happy to work with the Committee on proposals to amend or expand the definition. It would be an unusual legislative approach to state what a Bill will not do; Legislative Counsel would advise us that that is not a necessary step. However, we are more than happy to consider other dimensions that you feel ought to be reflected in the definition.
The Chairperson:
The Department has concerns about clause 11, and amendments will be made to it. Yet, despite all the worries that have been expressed, the Department seems to have no concerns about clause 35. The Department seems happy not to consider amendments. You received a roasting — to put it mildly — from two sectors about clause 35.
Mr Stewart:
We have been roasted by all sectors. [Laughter.]
The Chairperson:
They have not all started yet; they are only warming up. It seems as though the Department will not consider doing anything about the issues that have been raised in respect of clause 35 unless they are raised by the Committee.
Mr Stewart:
The difference is that some sectors suggested a beneficial change to clause 11; we did not consider the suggestion to be unreasonable, and it is one that we are keen to consider. Several sectors expressed genuine concern about clause 35, but there is no evidence that what they fear is happening — even though it could happen under present legislation. There is no evidence to support change.
We are happy to consider any other dimensions that the Committee feels ought to be reflected in the definition of community governor. The challenge in drafting legislation is to be precise in what one is trying to define. It would be very difficult — indeed, almost impossible — to use the word “ethos” as a definition in the Bill, because ethos is an extremely difficult concept to define, measure or test in court. We do not want to end up with imprecise legislation such as the case law to which Basil referred.
The Chairperson:
With all respect, it is not difficult to do it with employment schemes: clause 3 states that there will be a change of ethos. It seems that one can have a definition in an employment scheme but not in a Bill.
Mr Stewart:
There are clear differences between employment schemes and Bills. Legislation requires a unique degree of precision and clarity in the meaning of words and phrases; that precision simply does not exist anywhere else.
It will be extremely difficult to arrive at a definition of “ethos” that can be included in legislation.
Mr McCausland:
In the Catholic sector, the committee for appointing boards of governors is simply given a list. The choices are predetermined; they do not pick one person out of a choice of 10; they are told whom to choose. The Catholic Church thereby ensures that the ethos of its sector is guaranteed. We are simply saying that the ethos of schools in the controlled sector must be guaranteed — and I am sure that we will get that sorted out — as it is in the Catholic sector.
There is an issue about the balance of representation on boards of governors. Churches have largely withdrawn from some inner-city areas of Belfast — and I do not think that that has happened elsewhere — in which schools in the controlled sector are situated. Often, the appointment of a Church representative to a school’s board of governors in such an area is made for historical reasons, namely that a church was located there 70 years ago. As a result, a bizarre situation occurs whereby Church representatives, none of whom lives within 10 or 20 miles of a school, sit on an inner-city school’s board of governors. The church building no longer exists, but the representatives of that Church make decisions about a school.
I could live with that if only one Church representative were allowed to sit on a board of governors. However, the difficulty arises when several transferor representatives are allowed to do so, because they can become a substantial element on a board of governors. For example, Church representatives on the board of governors of a school in Belfast drove through a fundamental decision. Can you clarify the number of transferor representatives permitted to sit on a board of governors? My understanding is that it varies from school to school.
Mr Stewart:
That is correct. The sums can be complicated.
Mr McCausland:
It is important that the transferor Churches have their place and want to protect it. However, as has been pointed out before, there are other Churches in the Protestant community. An historical peculiarity should not act as a block to override others.
They seem to have an automatic in-built majority on everything. That probably applies only to schools in inner-city Belfast, because, in the countryside, the same church might have served its community for the past 200 years. Given changes in demography, however, that issue should be examined.
Mr Stewart:
I am sure that you are not inviting us to remove the TRC’s right to nominate governors.
Mr Elliott:
Just the Presbyterian ones.
Mr McCausland:
As I am not a Presbyterian, a Free Presbyterian nor any sort of Presbyterian, I have no view on that. The system needs to be thought through, as people could be making legislation without being fully aware of anomalies that can arise. As you rightly assumed, I totally support the right of the transferors; however, it needs to be monitored in one area.
Mr Stewart:
That is a valid point, and it emphasises the importance of the role of community governors, as defined. The role of the Transferor Representatives Council is important, and we have always acknowledged that.
It was never our intention to remove or dilute in any way the TRC’s vital participation. At any one time, the TRC provides us with some 2,000 school governors whom we simply could not replace.
You are right, however, that there are other voices in the controlled sector that must be heard, and that is why the theme running through what we are attempting to do with boards of governors, particularly with the representatives’ council, is to ensure that those schools have a connexion with and understand the needs of the communities that they serve. If that connexion, which in the past was through the Churches, no longer exists, we must find different routes and connexions between schools and the communities that they serve.
It can often be difficult and challenging to get sufficient numbers of people to serve as school governors. Therefore, the Churches, Protestant and Catholic, have a vital role in persuading people to put their names on lists for consideration.
Mr McCausland:
One of the strengths of the Catholic maintained sector is the close association between the parish and the school. The representatives who come forward are imbedded in the community; they probably grew up there, worship there and belong to that community. We must find ways to ensure the same rootedness for boards of governors in the controlled sector.
Mr Stewart:
I agree entirely; it is a particularly difficult challenge in some inner-city areas.
Mr B McCrea:
There is a gaping hole in what you are attempting to do. The appointment of governors is central to the development of autonomous, self-improving schools. Most former governors to whom I speak will not go back, for although we burden them with responsibilities we fail to give them clear guidance and support. We must find a better way to deal with the matter.
You say that you seek proposals from us to encourage people to become governors again. What do you mean by consultation with existing governors? How can an existing board of governors be consulted to ensure that new governors are acceptable?
Mr Stewart:
Quite simply by sharing the names with them and inviting their opinions.
Mr B McCrea:
What happens when they yes or no, or “we’d rather have Jimmy.”?
Mr Stewart:
It would depend on the representations that had been made. If a board of governors were to point out to us that the ESA had made a gross error by suggesting someone who is fundamentally opposed to a school’s ethos, we would, of course, think again. However, having spoken to the various sectors and to boards of governors, I am assured that that does not happen under the present arrangements. Nevertheless, although the sectors and boards of governors are satisfied with the outcomes of departmental and, indeed, education and library board appointments to their schools, they are glad that the consultation process exists as a safeguard.
Mr B McCrea:
That was then, and this is now. For a long time, education involved relatively little politics with a small “p”; it was administered either by direct rule or there was consensus on the way forward. Nowadays, we are having probably the most highly contested discussion about education since 1921 — people have fundamentally different opinions.
If governors, and not the ESA, are to lead the charge in schools, whoever appoints governors will determine the stance that schools take. Given the disagreements resulting from the various — although legitimate — political agendas, people will be appointed to boards of governors for various reasons. If governors, rather than the ESA, taking the lead is to be the cornerstone of the new arrangements, you must consider the matter in more detail and come to us with schemas for how things should work.
Incidentally, when we attempt similar balancing exercises for district policing partnerships, we are inundated with people who want to get involved.
There are mechanisms set up to ensure that a balance is achieved. I am not saying that we have to do it that way, but we should consider it.
There are similar examples in the Health Service of getting different representatives involved. If we are keen to get local people involved in the ESA, we will have to find a way of achieving that. It is a challenge for you, and you will need to come back to it. The situation with boards of governors is not working.
Mr Stewart:
We have 1,251 grant-aided schools, and that means that we have approximately 10,000 school governors. The challenge for the ESA and others is to find 10,000 willing and capable people to serve, in an important voluntary capacity, this important public service. Even if we wanted to introduce political vetting for school governors, I am not certain that we could.
Of those 10,000 governors, some will support some aspects of education policy at any given time, and some will have different views on aspects of education policy at any given time, and that may vary over time.
We are interested in the capacity of those individuals to lead and manage the schools.
Mr B McCrea:
I understand your Civil-Service approach, but the same will happen with the ESA as happened in such groups as the district policing partnerships in which organisations and political parties encouraged their activists to get involved. That is right and proper, but it has the potential to politicise an issue. You may not do it, but that does not mean that it does not happen.
You said that there had not been problems before and that it worked out all right. The challenge in framing legislation is that, in the future, other Ministers or other people may take a contrary view. There is significant alarm among the governors throughout the entire school estate — irrespective of sector — about what they are being asked to do. Unless that is sorted out, we will run into the sand on the issue.
There is no point in our coming backwards and forwards; we will not sort it out here and now, but you should realise that there needs to be a more detailed approach to how school governors of all sorts are appointed, selected and encouraged. The Department should focus its attention on that.
I close on the issue that has returned about the ambiguity and fudge. Paragraph 27 of the submission relates to clause 34. It states that:
“The clause will place two duties on boards of governors: to exercise their functions with a view to promoting high standards of achievement; and to co-operate with the ESA in the exercise of its functions in relation to raising standards”.
I cannot see a problem with the first point, but what does the second point mean? What is the definition of “to co-operate with the ESA”? What does “co-operate” mean in that context?
Mr Stewart:
In the past, some schools have refused to co-operate with the Education and Training Inspectorate and education and library boards. Some schools have refused to allow representatives from the education and library board to be present at meetings with the Education and Training Inspectorate to discuss the outcome of school inspections. It is that refusal to co-operate that we need to address through the duty that has been proposed.
Mr B McCrea:
That is a reasonable condition, but one could also interpret “co-operate” to mean that ESA will, gently, tell schools what it expects them to do and that their co-operation would be appreciated. In other words, schools will have to do what the ESA tells them to do.
Mr Stewart:
There are no powers for the ESA — and that does not constitute a power for the ESA — to direct a board of governors. We do not expect that the ESA’s first approach will be to gently ask the schools to do as it says. Its first approach should be to gently ask the schools what they propose to do. If that answer is not satisfactory, the ESA may consider taking further action or ask the Department to take further action.
I want to be clear on this matter: the ‘Every School a Good School’ policy gives no strong or draconian powers to the ESA. The strongest powers, such as the ability to change schools, close schools and remove boards of governors, are in existing legislation and rest with the Department. There are no proposals to place those powers with the ESA.
Mr B McCrea:
That is exactly my point. It is smoke and mirrors. You say that the powers lie with the Department rather than the ESA. However, it is not inconceivable that the ESA will say that it is having difficulties with a particular school, whereupon the Department will exercise its powers. The Committee received many submissions from people who are concerned about the potential for micromanagement by the Department or the ESA. You may understand the difference in structural issues, but, frankly, people do not see it.
I fear that you need to examine the legislation in more detail. If what used to be called education and library boards and the inspectorate should combine, we have to outline their responsibilities. I know that it requires much labour, and I know that it is not easy. However, in the current climate, you will have to adopt that approach.
Mr Stewart:
I understand that point. On your earlier point, you face the dilemma that every legislator faces — too much power or too little power. The concern has been the lack of clarity of responsibility of standards and powers throughout the education system. In the past, the Department’s significant powers have not been used to address the worst-performing schools.
In the past, our approach has been based on providing additional resources and giving schools an inordinately long time to address the serious issues that they face. Meanwhile, one or more cohorts of children pass through those schools and are failed by the education system. We aim to move to a different situation in which responsibilities and powers are clear and in which there is scope for a graduated response that begins with help, support and advice but, in the most extreme circumstances, can result in the prompt closure of a school.
Mr B McCrea:
What is the inspectorate’s role?
Mr Stewart:
The inspectorate is the key driver. Any such decisions must be evidence-based, and the Education and Training Inspectorate is the primary provider of evidence.
The Chairperson:
The inspector will make a presentation — which will cover clause 37 — on his report to the Committee. We will seek the inspector’s views on the matter.
Mr Elliott:
Chris said that the powers that lie with boards of governors and the Department will remain there in order to maintain the status quo. That is completely different to what the Committee was led to believe a couple of weeks ago about community planning. I thought that more functions, such as community planning, would move to the centre of the ESA. We can, if necessary, check the Hansard report. However, there was an emphasis that decisions on community planning could be taken by the ESA above the heads of boards of governors. Is that accurate?
Mr Stewart:
Do you mean area planning of curriculum and the educational estate?
Mr Elliott:
Yes.
Mr Stewart:
We draw a distinction between the running of individual schools, which is, under our policy, a matter for boards of governors, and the planning of education, where we want to move away from the separate sectoral or individual school approach to planning that we have adopted in the past. We will move to a much more planned and managed market. The ESA will be the planning authority for education. However, even at present, any development proposal for a new school, a school closure or a change in the character of a school is decided by the Department and the Minister. In that sense, it is not a change.
Mr Elliott:
Your submission says that child protection is the only subject in the Bill on which the ESA will have the power to direct boards of governors. Where does the responsibility lie if there a misdemeanour, or if something untoward takes place? Does the responsibility for the child protection issue lie with the board of governors or with the ESA?
Mr Stewart:
Clauses 47 and 48 do not change the responsibility. The duty and responsibility that goes with them rests firmly with the board of governors. The point of the clauses is to introduce a policing function to ensure that those duties are properly discharged. Our concern was that it was not sufficient to have clarity of responsibility. That, in itself, does not stop things from going wrong, and, if something were to go wrong, it would not be sufficient to come along afterwards and have an easy and effective means of apportioning blame. Therefore, we need the means to ensure that things do not go wrong in the first place. That is why we felt that it was appropriate to give the ESA strong powers to direct the board of governors in that respect.
Mr Elliott:
I have a concern. You will appreciate that although the power is moved to the ESA, the responsibility does not move to it. The responsibility remains with the board of governors. If the powers move, why does the responsibility not also move?
Mr Stewart:
It would not be feasible to transfer the responsibility of the board of governors for the day-to-day running of a school to the ESA, unless we wanted to go down a road that was contrary to the policy that we are pursuing, which is to give schools much less autonomy, or rather, no autonomy, and for the ESA to have much more centralised control. A number of members have impressed upon me that they do not want that to happen.
Mr Elliott:
We are talking about the one issue, which is child protection. I do not see why that issue should not be separated, as you have separated other issues for direction from the ESA.
Mr Stewart:
The issue relates to the way in which the school carries out its daily business, the policies and procedures that it has in place for access to children and young people — supervised and unsupervised — and the level of training and understanding that staff may have. Those matters are a school’s responsibility, and they are in the day-to-day control of the board of governors. In that sense, it would not be feasible or desirable to try to move that to the ESA. However, it is important that the ESA is in a position to ensure and challenge a board of governors, where necessary, in relation to the discharge of those responsibilities, and, more importantly, to provide the advice, help, support and guidance that goes along with that. That is why there is the corresponding duty on the ESA in relation to child protection.
The Chairperson:
We will have to examine that issue again in more detail.
Do you see any problem with the body that will be established to own the controlled sector nominating governors, rather than the Department, or what would have formerly been the board? Aligned to that, comments were made earlier in relation to getting equity. How do you see that being played out in the maintained sector or in any other sector? In the provision, all schools are being treated the same with the appointment of community governors, and the only requirement will be that they live and work in the local community. That applies to all schools.
Mr Stewart:
That is taking us into slightly different territory. It is what we referred to in policy papers as “foundation governors” who might be appointed or chosen by owners of schools to represent the ethos and character of a particular school. In the policy paper, we floated a suggestion that the controlled schools ownership body might be given a role in that respect. Again, it is asking whether we should follow without question the logic that would run throughout the rest of the arrangements and draw the equivalence between that body and the owners of schools in other sectors.
There are two sets of issues with that. One is whether we — and, we, in this case, is the Assembly — wish that body to have merely the narrow role of ownership and stewardship over physical assets, or whether we wish it to have a broader range of functions of which that might be one. The difficulty with that, which relates to the point that Nelson made, is that it will be a statutory public authority. The issue is the extent to which, under legislation, we can make the body as representative, as some members may wish, of the communities and schools with which it deals, bearing in mind the clear restrictions on the legislative competence of the Assembly in section 6 of the Northern Ireland Act 1998.
The Chairperson:
To clarify, are you saying that that is not preferable?
Mr Stewart:
I am asking the question and inviting members to give their views. For example, a statutory non-departmental public body might be established to take ownership of the controlled schools estate. We could not give the TRC or any other particular group of churches, for example, guaranteed representation on that body’s membership. That is the same difficulty that we ran into with the TRC’s nomination rights on governors. The Assembly simply could not pass legislation to that effect. The Speaker would not admit it to the House. It is beyond the Assembly’s legislative competence.
We solved that problem with governors by leaving existing legislation intact. However, we could not constitute the controlled schools’ ownership body in the way that education and library boards are currently constituted with guaranteed TRC participation. Of course, that does mean that they would be excluded. TRC representatives could be there, having been appointed through a typical public-appointments merit-based process. We cannot make that body representative of any particular community or sector in the way that Nelson would like it to be. We simply do not have the legislative means to do so.
Mr McCausland:
Would there be any difficulty, therefore, in having a body that is representative of the community that it serves?
Mr Stewart:
I think that there would be difficulty.
The Chairperson:
Do you mean that there would be difficulty in making recommendations for the appointment of community governors?
Mr Stewart:
Sorry, I may have misunderstood your question.
Mr McCausland:
Is there a legislative difficulty in having a body — either the ownership body or the sectoral body — that is representative of the community that is served by those schools?
Mr Stewart:
Not with regard to the representative body, because it is not statutory. There would be difficulty with any statutory body.
Mr McCausland:
What is required legislatively at Westminster in order to put that right?
Mr Stewart:
A change to section 6 of the Northern Ireland Act 1998 would be required.
Mr McCausland:
What is the timescale for such a change? Unless there is that change, the matter cannot go anywhere.
Mr Stewart:
I am not sure that the timescale is the issue; it is political agreement.
Mr McCausland:
The point is, of course, that without political agreement to meet that requirement, there might be a Bill, but there will be no Act. The Minister tells us about equality until we are sick hearing about it. There must be equality for everyone or equality for no one. If ownership of the Catholic sector is in the hands of a body that is represented fully by that community, ownership of controlled schools must reside in a body that represents the community that is served by those schools.
Mr Stewart:
Unsurprisingly, the Catholic community is reflected fully in that body because the schools are in the ownership of the Roman Catholic Church. There is a difference between any church and a statutory public authority. We simply do not have the legislative means to make any statutory public authority representative of any one particular section of society.
The Chairperson:
Let us be honest, Chris; although they may not know all the details, the public are wise on the issue. They cannot get their heads around the fact that schools in the maintained sector, which receive 95% to 98% — I stand to be corrected — of their funding from public money, have a privileged position, while schools in the controlled sector, which is funded by public money, are subject to certain rules and regulations just because they did not insist on being treated differently in the past. If the aim is to get equality, that is a driving point. The agenda that has been set by the Minister is one of equality, and I can tell you that that is what we will end up having.
Mr Stewart:
I understand the issue, but it is one for political debate and discussion, and not for me to answer. The issue for the Department is quite simply the difference in legislation between a private body and a public authority.
Mr McCausland:
I accept the fact that it would require political agreement, but could a paper be provided that outlines the process by which that could be achieved, so that we get an indication of the timescale that is required for that legislation. That would then give us better information about when the Bill might potentially become law.
Mr Stewart:
If you are asking for advice on how you might secure an amendment to the Northern Ireland Act 1998, that takes us into territory that is the responsibility of the Office of the First Minister and deputy First Minister (OFMDFM), and is well beyond the remit of the Department of Education.
Mr McCausland:
I am simply asking for a paper that outlines the practicalities.
Mr Stewart:
It may be a very short paper.
Mr McCausland:
That may be; it might only be three or four lines.
Mr Stewart:
The Committee might find that refreshingly different.
Mr McCausland:
I am making the point that this is a fundamental issue — there is no running away from it. There is no point in our proceeding with this — we would be wasting our time unless that matter can be resolved.
Mr Stewart:
I note Nelson’s point, and if there is advice that we can provide on that we will do so. However, as I said, it is well beyond the competence of the Department of Education. We can, though, provide advice on where you might get further advice.
Mr D Bradley:
The situation that we are in today is partly due to historical circumstances. When Lord Londonderry was the Minister of Education, he wanted all schools to be state schools, and it was the Presbyterian Church that was most strongly opposed to that at the beginning. The transferors at one stage obviously saw an advantage in handing their schools over to the public authority. People may now see that as disadvantageous, but it is part of the history and evolution of education in Northern Ireland.
There are now integrated schools in the controlled sector, I believe that there are one or two controlled Irish-medium schools, and there are controlled schools that are integrated because of demographics.
The Chairperson:
There are controlled schools that are predominantly attended by Roman Catholic children.
Mr D Bradley:
We are not talking about a homogenous group — that probably makes issues more difficult.
There was a situation in my constituency in which a senior manager of a school was behaving in a way that was detrimental to the good running of the school. It took an extremely long time for that person to be suspended under the present system. His presence in the school over that prolonged period did irreparable damage to the health of some of the staff in the school, as well as to the good running of the school and the education of the pupils.
Under the new legislation, when boards of governors have those powers, is it your view that if someone should be suspended, as was the case in that situation, that that will happen much quicker than it has happened in many cases under the present system?
Mr Stewart:
It is difficult for me to comment on particular cases without knowing the circumstances. I do appreciate that such situations can take an inordinate length of time to resolve. I cannot guarantee that the process will be any quicker or any slower under the new arrangements, because I suspect that it is driven primarily by the requirements of employment law rather than education law.
Any board of governors or any principal faced with that situation will want to be able to act quickly, decisively and within the law and parameters of best human-resource management practice at the given time.
In such situations, the role of the ESA will be vital, and the service that it provides to schools must be timely, professional and on hand. Clear advice must be available on tap to boards of governors, so that they know what they can and cannot do, and how quickly that can be achieved.
The Chairperson:
There may be a few follow-up questions. Thank you, Chris. Jeff and Peter had an easy run this morning.
Mr Stewart:
They will have to carry me out now. [Laughter.]