COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
4 March 2009
Members present for all or part of the proceedings:
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mr Edwin Poots
Witnesses:
Mr Chris Stewart)
Mr Jeff Brown ) Department of Education
Mr Peter Burns )
The Deputy Chairperson (Mr D Bradley):
Good morning, gentlemen — you are welcome back. The session will have three parts. The first will be on clauses 1 and 2— the education and skills authority (ESA) and its functions and general duty. The second p will deal with clause 9 and schedule 2 — the transfer of staff. The third part will be about clause 22 and schedules 3, 4 and 5 — the transfer of assets. I invite Chris to introduce his team and to outline how he intends to deliver the briefing.
Mr Chris Stewart (Department of Education):
Thank you, Chairman, and good morning, members. With me today are Jeff Brown and Peter Burns from the review of public administration Bill team. If it meets with your approval, we will make three short presentations covering the material. We will pause for questions between each presentation.
As members will have noticed, I am coughing and spluttering, so I hope that my voice will hold out until the first difficult question, at which point it will probably give up on me.
Clause 1 will establish the education and skills authority as a public authority. The associated schedule 1 contains the range of standard provisions that one would expect for a new public authority. They cover the status, membership, employees, governance arrangements and proceedings, and the finance and accountability arrangements for the organisation.
Schedule 1(2) deals with the membership of the ESA — or what is commonly referred to as its board — and members will be aware that most members of the ESA will be district councillors. The appointment arrangements will involve a merit-based application process that will reflect the principles and the guidance issued by the Commission for Public Appointments.
Schedule 1(7) and 1(8) provide the power to establish committees, including those that will be associated with the local units or teams of the ESA. Members will note that the provisions give the ESA the power to delegate functions to those committees or to employees of the organisation.
Schedule 1(19) deals with the Northern Ireland Assembly Disqualification Act 1975; its effect is that MLAs may not be members of the ESA. That stems from the need to avoid the potential for a conflict of interest, given that the organisation will be accountable to the Minister and to the Assembly.
Schedule 1(20) and 1(21) apply a range of fairly standard regulatory frameworks that members would expect to see applied to any public authority. For instance, the provisions will bring the ESA within the remit of the Commissioner for Complaints and within the ambit of the Freedom of Information Act 2000. As a result of being within the ambit of the legislation relating to the Commissioner for Complaints, the ESA will be a public authority for equality purposes and section 75 of the Northern Ireland Act 1998. It will, automatically, be a public authority for the purposes of the Human Rights Act 1998, because it comes under the definition in that Act.
Overall, the provisions in schedule 1 are similar to those of schedule 1 in the Libraries Act ( Northern Ireland) 2008. There are a few differences, which we have summarised for members in the annexe to the paper, but we do not regard any of them as being particularly significant.
Clause 2 defines the functions and the general duty of the ESA. Clause 2(1) is linked to the repeals and amendments in the Bill and will assign to the ESA those functions in existing legislation that lead to transfer from existing bodies, as well as new functions that are defined elsewhere in the Bill.
Clause 2(2)(a) and 2(2)(b) are significant, because they provide an overarching statement — or mission statement — of the purpose of the ESA. They focus on six key dimensions in the development of children and young people: spiritual, moral, cultural, social, intellectual, and physical. They also focus on the three main forms of education: early-years services, which are referred to in the Bill as “educational services”; schools; and youth services.
The key differences from the current legislation are the addition of the social dimension of development and the more explicit recognition of early years and youth services as key components of education.
The Department is considering a possible amendment to clause 2(2)(b) on youth services. On reflection, we do not think that that clause goes far enough or that its language is sufficient in reflecting explicitly the links between youth services and the various dimensions of development as the provisions for schools and early years do.
We may, therefore, propose a redraft in a similar fashion and using similar language to that in clause 2(2)(a), which deals with early years and schools.
Members may ask why we simply do not collapse the two provisions together and add youth services to clause 2(2)(a). However, there is a technical reason why we cannot do that. It would be extremely difficult —well nigh impossible — because of the age ranges of the services that are provided.
Primary and secondary education are provided for children and young people, who, as a result of a couple of definitions in legislation, includes individuals up to the age of 19. By contrast, the age range for youth services is not defined in legislation, but, in practice, includes people up to the age of 25.
For that reason, it would be extremely difficult to combine all those services in one clause. Moreover, the clause assigns to the ESA several other key overarching functions, including planning and education in clause 2(2)(c), supporting and challenging education providers in clause 2(2)(d), and providing advice to the Department in clause 2(2)(e). Clause 2(3) will place a requirement on the ESA to treat all schools equitably. That duty aims to address the concerns expressed by members and stakeholders that the ESA might experience a conflict of interest during the period when it owns controlled schools.
Clause 2(4) will place a duty on the ESA to raise standards and will complement the duty on boards of governors in clause 34, which the Committee discussed last week. Clause 2(5) and 2(6) provides for the ESA to carry out administrative functions under the direction of the Department of Education and the Department for Employment and Learning. At the moment, neither Department has specific proposals in mind, but that clause is included in case we need the ESA to do some heavy lifting on our behalf. Clause 2(8) provides the definition of educational services, which is shorthand for early-years provision.
The Deputy Chairperson:
Schedule 1(2)(1) provides for the ESA board to consist of a chairperson and not fewer than seven or more than 11 other members. Does that number provide for the scope of expertise that will be needed to hold the ESA to account?
Nelson and I are members of the Committee for Culture, Arts and Leisure, which has been examining the aftermath of the collapse of the Northern Ireland Events Company and how the Department of Culture, Arts and Leisure should ensure that its arm’s-length bodies are accountable. Part of that process involves ensuring that people on the boards of those bodies have adequate skills, expertise and training to ensure that they can perform their functions properly. Some people might describe the numbers as smallish. Might it confine the degree of expertise or could it be difficult to find the range of skills and expertise that are needed to hold such a large organisation to account?
Mr Stewart:
I understand and agree with your point: experience, skills and expertise are very important. The Department thinks that that number strikes the right balance between manageability and, as you rightly emphasised, securing the necessary breadth of skills, competence and experience.
As your question suggested, quality is as important as the number of members on the ESA’s board. For that reason, the Department is clear that the merit principle will feature strongly in the appointment arrangements. We have stressed in the legislation the need to appoint members who have knowledge and experience in education and its various dimensions. We understand your point, and I will relay it to the Minister. We think that the current number is right, but the Minister will want to consider the Committee’s opinion.
The Deputy Chairperson:
The Department of Culture, Arts and Leisure has established a review team. Part of its remit is to ensure that people — such as those who will comprise the ESA board — who accept positions of responsibility are properly trained. Why will most of its members will be councillors? Will it be possible to reconcile that with the Bill’s requirement for each member to have experience in a field of activity that is relevant to the discharge of the ESA’s functions?
Mr Stewart:
Yes, because the latter point is not an absolute requirement; rather, it is an aim that we will strive to realise. The fundamental reason why most board members will be district councillors is the Minister’s desire to ensure local democratic accountability in the organisation. That proposal was strongly supported in several stakeholders’ consultations.
There was no support for establishing the ESA as a quango, and there was widespread support for democratic accountability and for elected representatives being part of the membership.
The Deputy Chairperson:
You also said that part of the duty of the ESA will be to contribute to the spiritual, moral, cultural, social, intellectual and physical development of children. How do you define “spiritual” and “social”?
Mr Stewart:
They are not explicitly defined in the Bill, and it would be very difficult to do so. The spiritual dimension is not new; it is reflected in current legislation. The new aspect is the social dimension. The Department aims to achieve a recognition of the breadth of purpose of education; it focuses not merely on the intellect, but on the education of the whole person and on every aspect and facet of their development. We do not propose to define those terms, as it would be difficult to do so. They would mean what one would expect the ordinary, right-thinking person in the street to understand them to mean.
The Deputy Chairperson:
Does that not leave those terms open to interpretation?
Mr Stewart:
It does, but if ever there is a dispute over interpretation, a court would consider what is reasonable in the circumstances.
The Deputy Chairperson:
Clause 2(4) states that:
“ESA shall ensure that its functions relating to grant-aided schools are (so far as they are capable of being so exercised) exercised with a view to promoting the achievement of high standards of educational attainment.”
What is the purpose of the caveat “so far as they are capable of being exercised”?
Mr Stewart:
That is one of those provision to which there may be less than meets the eye. The ESA will have a range of functions: providing support and training for governors and staff to running its staff canteen. There is not much that it can do to contribute to the high standards of attainment through running its staff canteen.
Mr B McCrea:
Chris, I am disappointed in all this. Paragraph 14 of your submission states that:
“Clause 2(4) will place a duty on the ESA in relation to raising standards, and is intended to be complementary to the duty on boards of governors”.
There is an equivalence there; in other words, the ESA can come in and deal with things.
Your submission states that the Bill provides for the ESA to carry out administrative functions at the direction of the Department. Who defines administrative? That could mean anything, including staff issues.
There is little point in my labouring the issue. I have tried over the past weeks to tell the Department where I thought reasonable compromises could be made; however, I see none. I would like to place on the record that we are implacably opposed to a Trojan horse. This is not about education; it is about ministerial control.
Although it is slightly contentious, I would like to make a comment about page 159 of the Department’s submission.
Mr O’Dowd:
Chairman, are we discussing the presentation or are we discussing Basil’s interpretation of the presentation?
The Deputy Chairperson:
There are issues that he wants to raise.
Mr O’Dowd:
There are three presentations on the various clauses.
The Deputy Chairperson:
Mr McCrea is still discussing clause 1 and schedule 1.
Mr B McCrea:
I am referring to clause 1, schedule 1, on page 159 of the Committee’s briefing, if that helps, Mr O’Dowd.
The Deputy Chairperson:
Basil, it would be helpful if you referred to the paragraph of the submission.
Mr B McCrea:
Ok. Paragraph 19 deals with Assembly disqualification, and paragraph 2 deals with membership. It does not help local democracy if councillors are members of the ESA, because I am not sure about the principle of merit. The Deputy Chairperson also made that point.
I do not understand why Assembly Members cannot be members of the all-powerful board. I could see some merit in it if the ESA were to be merely an administrative vehicle, but it will have powers on spiritual and social matters, among other things. Unless there is cross-party political control at MLA level, it will not work.
The Deputy Chairperson:
We have raised that point with you at previous meetings.
Mr Stewart:
I will relay members’ concerns to the Minister. Membership of the ESA is a policy decision for the Minister, and her view is that the provisions in the Bill are correct. I understand Mr McCrea’s point, but I can only explain again the purpose behind the Assembly disqualification reference. It is in recognition that, in the Minister’s view, there would be a conflict of interest if MLAs were part of the regional organisation, which would, in turn, be accountable to her and to the Assembly through the Committee. MLAs could end up being accountable to themselves or to one another. The proposals are not unusual; they mirror those for the Library Authority and for most, if not all, similar regional service-delivery authorities.
The Deputy Chairperson:
MLAs are also Ministers, but that does not prevent other MLAs from holding them to account. When a Department of justice is established and a Minister for justice appointed, will the Policing Board be dissolved?
Mr Stewart:
I cannot comment on that; I have no knowledge of policy in that area.
Mr B McCrea:
At some stage, a Department for policing and justice will be set up, and I understand that there will be two Assembly Committees to scrutinise it. We also have a Policing Board. Can we get legal advice on whether there is a potential conflict of interest?
This is the opinion of one Minister. Can the Department find out whether there is a legal impediment to Assembly Members sitting on the regional board of the ESA? Can we seek legal advice on the matter? I would like the Department to come back on that, but I would also like the Committee to seek its own independent legal advice on the issue.
Mr Stewart:
There is no legal impediment to Assembly Members sitting on the regional board. The legal impediment would arise from the amendment that would be made to the Northern Ireland Assembly Disqualification Act 1975 if the Education Bill goes through. If, for any reason, that provision were removed from the Bill, there would be no legal impediment and it would be possible for MLAs to be members of the ESA. The Committee may wish to seek legal advice on the matter, but that is where we see the legal impediment arising. It is a policy decision on the risk of conflict of interest.
The Deputy Chairperson:
Under the current system, MLAs are also members of education and library boards, and there does not seem to be a conflict of interest there. Using that analogy, why should there be a conflict of interest in this case?
Mr Stewart:
If we were not proceeding with the review of public administration along current lines, the Minister of the day might have wanted to consider the matter anyway. However, that is a hypothetical situation. I can merely reiterate to the Committee that, in common with the Library Authority and other regional authorities, the administrative policy is in line with some of our ministerial colleagues: to avoid conflict of interest, members of the ESA should not be MLAs.
The Deputy Chairperson:
We will take Mr McCrea’s point on board and seek legal advice on behalf of the Committee. Are members content?
Members indicated assent.
The Deputy Chairperson:
The next member to ask a question is Edwin Poots.
Mr Poots:
Four years is the maximum time that someone can hold a position in the ESA. I do not necessarily disagree with that, but there might be a problem if the changeover takes place every four years and the entire board changes. Will the Bill allow for half the members to leave after the four-year term and the other half to stay for a six-year term, in the first instance, and use a rotational system thereafter?
Mr Stewart:
That is precisely the sort of practical arrangement that will be required. It is possible for reappointments to be made after the four-year term, although two terms is the normal maximum that the Commissioner for Public Appointments recommends. However, as you rightly said, it would place the organisation at considerable disadvantage if we renewed its entire membership at the same time. We will take all steps necessary to stagger the change, whether that involves extending or shortening appointments.
Mr Poots:
It makes sense for members of the ESA not to be Assembly Members, because we will be holding them to account.
Mr Lunn:
I am sorry to bang on about membership, but here we go again. Schedule 1 states that most of the board should be district councillors “so far as practicable”. Is there room for manoeuvre?
I have said this before, but we started with no democratic representation being proposed for the board. We have not stopped at the halfway point of some democratic representation and have, instead, gone straight to a position where a majority of district councillors will control the board.
It is mooted that the ESA board will be made up of between seven and 12 people. Contrast that with the board of the Library Authority, which has 18 members. With all due respect to the Library Authority, the ESA board will have much more responsibility, and we are constantly being told that its budget and organisation will be huge.
You mentioned merit as the basis for selection, but what about experience, cross-party representation and geographical spread? I cannot see how the board will be put together on a satisfactory basis. Councillors who have the required expertise and experience may have to be moved on four years down the line, and perhaps five more councillors with the requisite experience and expertise will have to be found. It does not sound feasible.
I hesitate to suggest that the board of a public body should be made bigger. However, if the Library Authority needs 18 people, does it make sense that ESA could be run by a board of eight? Indeed, five of those eight people will need another qualification, which has nothing to do with education but is at the whim of the electorate.
Mr Stewart:
If you feel that there is too much local democratic accountability now, I am tempted to remind you of the Chinese proverb:
“be careful what you ask for — you might get it.”
The wording — that qualifications will be secured “so far as practicable” — does not give us a choice of whether to do that or not. The phrase is there to allow for the — albeit unlikely — event of insufficient numbers of councillors coming forward who wish to be members of the ESA or who prove themselves to be qualified. However, it does not give us what you called “room for manoeuvre” to depart from the principle that is in the Bill.
I recognise members’ concerns that there may not be enough ESA board members. Our view is that up to 12 people is sufficient and strikes the right balance between breadth of competence, experience and manageability. Organisations with larger numbers sometimes struggle to be effective in making decisions, so the numbers that the Bill proposes are a sensible balance and compromise.
The additional qualifications, competence or experience that we are looking for are not an absolute requirement. It is extremely desirable that we have members with experience in education or a related field, but it is not absolutely essential. The core principles are that the ESA will be a body with a budget of some £2 billion and with 50,000 staff delivering an indispensable public service. The quality of membership will be the key to its success; that is why the merit principle will feature strongly in the appointment arrangements.
Mr Lunn:
What about the inevitable problem of cross-party representation on the board? Cross-party representation is bound to be demanded, but it does not necessarily tie in with expertise and experience.
Mr Stewart:
Cross-party representation may be desirable, but it would be difficult, in fact impossible, for us to guarantee it in legislation. Mr Poots will be familiar with that from his time considering the arrangements for the Library Authority.
We could not, for example, employ d’Hondt to achieve political balance. Ironically, that would be regarded as discriminatory and, therefore, could not be included in legislation that might be brought to the Assembly. Such provisions can be included in Westminster legislation but not in Assembly legislation, by virtue of section 6 of the Northern Ireland Act 1998, which we mentioned last week.
Mr Lunn:
You will be pleased to know that the Alliance Party agrees with the DUP about the Assembly disqualification rule, which is absolutely right.
The Deputy Chairperson:
What about Trevor’s point that although the Library Authority is a much smaller body, with less onerous responsibilities, it has more board members. The ESA will have huge responsibilities, yet it will have a relatively small board. How do you explain that difference?
Mr Stewart:
It is not for me to comment on other Ministers’ decisions or, indeed, on the advice of officials from other Departments. We believe that the proposed number of board members for the education and skills authority is correct. We note Committee members’ opinions on the matter, and we will relay them to the Minister. However, the short answer is that we think that we have got the number right.
The Deputy Chairperson:
The ESA will have quite a few subcommittees, which will mean that a small number of people will be dispersed among them, resulting in a heavy workload for those board members.
Mr Stewart:
I agree. However, that number can be supplemented, because members of committees will not necessarily have to be full ESA board members.
The Deputy Chairperson:
Nevertheless, presumably each committee will include at least one board member.
Mr Stewart:
That would be desirable.
The Deputy Chairperson:
Therefore, board members could carry quite a workload, in addition to having to attend board meetings.
Mr Stewart:
I recognise that possibility, and it is a fair point.
The Deputy Chairperson:
Does that not make a case for having more board members?
Mr Stewart:
We will take note of that concern. In due course, if it is deemed that ESA membership is too small and that the ESA is not fit for purpose, the Minister will consider changing it. However, at this stage, we are not convinced that more than 12 members are required.
Mr Poots:
How many committees do you envisage being established? Assuming that you have a good idea about corporate finance and so forth, will there be three or four? In addition, how many people will be on the committees, and will the existing appointment principles be applied? Will the committees have a majority of public representatives, and will appointments be based on merit?
Mr Stewart:
Appointments will be based on merit. We do not have a firm figure for the number of committee members. You mentioned the usual suspects, and we expect to see them on committees. In the past, we spoke about geographically based committees, which will be associated with local teams. There may also be committees that focus on particular themes or areas of service delivery rather than on geographical areas. At this stage, we do not propose to introduce a requirement for most committee members to be local representatives, so that may be a difference.
Mr Poots:
With respect to committee powers, I assume that the board will not be able to overturn a committee’s decision easily and that a committee’s recommendations will normally be approved.
Mr Stewart:
That will depend on the terms of delegation of functions to committees. However, as a general principle, when a function has been delegated to a committee, the body that delegates that function would not normally be expected to overturn a committee’s decisions.
Mr O’Dowd:
I, too, believe that it would be a mistake to have MLAs as members of the ESA board; it would be bad for democracy and bad for education. As the Deputy Chairperson said, the ESA board will be busy and may require more members. How could MLAs sit on the ESA board? They are already fully stretched. The public might say that we are not stretched enough, but we are; therefore it would be a mistake for us to be members of the board of the ESA.
I am not sure where Basil was coming from. I am a member of the Assembly and Executive Review Committee that considers dual mandates and other matters. The Ulster Unionist Party members on that Committee are among the majority who do not believe in dual mandates. They also agree on whether members of the Policing Board should sit on a justice Committee, because there is already a sense of MLAs holding other MLAs to account.
The legal advice was that there may be a conflict of interest — but “may” is a very big word in law. I do not understand where Basil is coming from when he talks about the democratic make-up of the board. One of the general principles of the RPA is to democratise the administration of public services, because many complaints have been made about too many quangos. Perhaps Trevor will forgive me for my next comment: if one was a member of the great and the good or a member of the Alliance Party, one was set for life.
Mr Lunn:
Rubbish.
Mr O’Dowd:
Why not ensure that appointments are made to the board through a democratic process? I am not sure what Basil’s reasonable compromises are. He attempts to portray himself as “Mr Reasonable” to the world and its media; however, when he presents me with a reasonable amendment, I will consider it reasonably, and the rest of the Committee has a duty to do the same. However, he has presented no such amendments to date. Basil’s opening comments merely confirm that his opposition to the ESA Bill is not educational but political. It is disappointing that he did not set aside his perfectly legitimate political ambitions and concerns for a time and study the RPA from a broader educational perspective.
My question is —
Mr B McCrea:
On a point of order, Mr Deputy Chairperson. Will I get a chance to respond to that conversation at some stage?
The Deputy Chairperson:
I ask members to direct their questions to the officials; we are not here for a cross-party discussion.
Mr O’Dowd:
I was outlining the status of the debate and responding to comments that have been made.
My question to the officials is about their explanatory notes on clause 2 in which youth services are separated from the rest of the services. Is nursery-school provision included in a different definition, and how will the voice of nursery schools be heard in the overall ESA equation?
Mr Stewart:
Technically, nursery schools come under primary education.
Mr O’Dowd:
Is that how their voice can be heard through the ESA mechanisms?
Mr Stewart:
Yes.
Mr O’Dowd:
Has giving further weight to the nursery element of the discussion been considered?
Mr Stewart:
I am not sure what you mean.
Mr O’Dowd:
Some nursery school providers, particularly educationalists, sense that their voice is not being heard. They feel lost in the primary school equation and fear that they will be completely lost in the ESA. Is there any way to reassure them, or are satisfactory provisions in place to ensure that the voice of nursery schools is heard? If so, are those provisions adequately resourced?
Mr Stewart:
That is possibly a matter of opinion or policy. We stressed the need for board members, wherever possible, to have relevant experience and knowledge. I relayed to the Minister the view that we must ensure that nursery schools are not overlooked. The same point is frequently made to us by other stakeholders, particularly from youth services and early years, which overlaps with nursery provision.
Your general point is correct, and we acknowledge that concern. We are not merely a Department for schools; education is about more than schooling, although that is an extremely important element. That is why clause 2 covers every dimension of development and all three major spheres of education. It is a valid point that the membership of the ESA should reflect that and should not comprise solely schools’ representatives or representatives from any one part of the school sector.
The Deputy Chairperson:
John, when you made your point about nursery education, were you referring to statutory provision or were you including private, and community and voluntary provision too?
Mr O’Dowd:
As reflects the different voices that I have heard, I was referring to all nursery schools.
The Deputy Chairperson:
Does the Department have the power to include in the Bill clauses that refer to the private, and community and voluntary sectors, or is its power confined to statutory provision?
Mr Stewart:
It covers both. The broad term for early years in the Bill is “educational services”, and that covers statutory and non-statutory providers.
Mr McCausland:
Comparison was made between the education and skills authority and the Northern Ireland Library Authority (NILA) in relation to membership and councillors. Do you not agree that that is not comparing like with like? There is a single library service — we do not have voluntary, controlled, maintained and Irish-medium libraries. The complexity and sensitivities of education suggest that it is not a case of comparing like with like.
Therefore perhaps we need to give more consideration to the composition and size of the board — although I have no set views about how that may be done. Do you at least accept that it is not necessarily a case of comparing like with like?
Mr Stewart:
I do; and we do not want to give that impression. Several members have concerns about the proposed number of members of the ESA board; I recognise that, and will relay those concerns to the Minister. The legislation includes a provision that allows us to vary the number of members of the ESA quickly by Order. Therefore, if it transpires that the number is not right and there is a need for a larger membership, that could be addressed fairly quickly.
Mr McCausland:
Have you given any thought to the possible number of committees and subcommittees? If you have compared the new body with other public bodies, you must have some idea of its human resources and finance needs. Have you given any thought to what the time commitment may be for people who are members of the ESA board?
Mr Stewart:
Rather than giving you a figure about the number of committees off the top of my head — which may be unhelpful — I am conscious that we owe the Committee a paper that we offered some weeks ago, setting out in more detail what we propose for the local structure of the ESA; particularly the role and composition of committees.
If it would be helpful, our thinking to date on the number of committees could be included in that paper. I am not certain how much information we could offer at this stage on what the time commitment may be, but I will take that query back to the Department and give it some thought.
Mr McCausland:
Briefly, under the current regime, 40% of an education and library board’s members are drawn from local authorities. I do not know about any other education and library boards, but in the Belfast Education and Library Board — and I declare an interest in that regard — it was done by proportionality.
You said that it would require Westminster legislation to have proportionality in councillor representation to make sure that it is reflective. If it were left to the Department or to the Minister, some people could be sceptical about the reflectiveness and appropriateness of how the process operated.
Mr Stewart:
I am not sure whether that was a comment or a question.
Mr McCausland:
The first part was a question; the second part was a comment.
Mr Stewart:
I am grateful for the clarification. It would require an amendment to Westminster legislation. When colleagues in DCAL examined the composition of the Library Authority and how they could bring about cross-party representation in its membership, they thought that they had the obvious answer: apply a d’Hondt-type mechanism. They merrily proceeded on that basis.
For the sake of completeness, they checked with legal advisers whether that was sound. They were surprised — as we were — to learn that not only was it not sound, but that it would be unlawful. They could not proceed on that basis.
There is no easy or straightforward way for us to include a mechanism in the legislation that would guarantee such an outcome. There are always tensions in any mechanism that attempts to ensure a balance between elements such as political opinion, gender or geography and the merit principle. Those factors are not completely incompatible and the tensions are not insuperable, but we would encounter considerable difficulty in trying to guarantee a particular political representation or outcome in the Bill.
Mr McCausland:
I am glad that it is not impossible to reconcile those two factors of having some form of proportionality and ensuring that board members have certain competences and skills, because sometimes people would simply throw their hands up in horror and say that that cannot be done. It may be complex, but it is possible. Does all this architecture not become incredibly complex because of the nature of education and the sensitivity and complexities around it? We should not necessarily dismiss concerns about it.
Mr Stewart:
That is exactly right, and we do not seek to dismiss them. The merit principle will need to feature centrally in the appointment arrangements. We will want to seek advice from the Commissioner for Public Appointments on the best practice for striking a balance between, or reflecting appropriately, the merit principle and ensuring that there is an appropriate spread of representation and composition in the body so that it enjoys widespread trust and confidence.
Miss McIlveen:
Clause 2(5) and 2(6) provide for the ESA to carry out administrative functions under the direction of the Department of Education or the Department for Employment and Learning. Do you know what the extent of that may be? What direction will come from DEL and will it provide funding to pay for the functions that are carried out? Does that mean that there may also be a representative from DEL on the ESA board?
Mr Stewart:
On the latter point, no; there have been no proposals for a DEL representative. If DEL wished to have functions carried out, there would be an associated payment. At present, neither Department has anything specific in mind. It became apparent to us as the Bill was being developed that the scope for which such clauses such can be used is quite narrow.
Earlier, Basil asked what is meant by administrative functions. I have to say candidly that it means less than we thought it meant at the beginning of the process. We had several functions in mind to be covered by those clauses — one of them was the payment of teachers’ salaries and pensions, which is currently with the Department. We thought that we might be able to use that provision to move that function from the Department to the ESA. The advice that we received from lawyers was that we could not do so.
Where a function is specifically reflected in statute, all-purpose clauses such as clause 2(5) and 2(6) cannot be used to move that function from one statutory authority to another. That clause refers to low-level administrative functions and, therefore, is likely to be of much less use to us than we thought it might at the beginning of the process.
Miss McIlveen:
One of the purposes of the ESA was to reduce bureaucracy and make efficiency savings. Will you be mindful of the cost of setting up committees and subcommittees? Their members will have to be paid and there will be general expenses associated with them.
Mr Stewart:
We will be mindful of that, but we will have to strike a balance between doing that and ensuring that the organisation is fit for purpose, bearing in mind members’ concerns about the number of members on the ESA, the number of committees, the potential workload, its importance and complexity. We do not want to spend money on the administration of the ESA that would be better spent in classrooms or on early-years provision or youth groups.
However, the organisation must be fit for purpose; it must account to the Department and to the Committee for the £2 billion of taxpayers’ money that it will spend each year and for the education service’s standards of achievement. Its committee structure must be equipped to do that.
Miss McIlveen:
I am genuinely concerned that we may end up with even more bureaucracy because each time officials come to the Committee, there seem to be more and more people getting involved in the operation of the ESA.
Paragraph 11 of your submission says that the Department is considering an amendment to clause 2, which concerns youth services. Would that amendment deal with transferring those services to local councils?
Mr Stewart:
There are no proposals to transfer those services to district councils.
Mr Lunn:
John mentioned the disqualification of Assembly members from the ESA board. He said that if MLAs are as busy as they ought to be, there is no way that they would have time to apply themselves to something as rigorous as the ESA board, never mind a conflict of interest arising. Let us hope that, come June 2011, district councillors will have much more responsibility. Although, with the way things are going — the Minister is holding onto her fiefdoms — district councillors may not be as busy as might have been expected. However, they will be fewer in number and busier. Could that cause a problem? Even a busy district councillor could face a conflict of interest, given his duties as a member of the ESA and pressure from his constituents.
Mr Stewart:
There is always potential for a conflict of interest when anyone holds more than one public office. The ESA would need to ensure, through its standing orders or instruments of governance, that there are proper arrangements for addressing potential conflicts of interest. There is a significant difference between that and the systematic conflict of interest that could arise if MLAs were members of the ESA. That is where we draw the distinction. Councillors will have a considerable workload — being a councillor and a member of the ESA would be a significant challenge. There is no point in denying that.
Mr McCausland:
If an MLA is a member of an education and library board, we can see how stretched they are — even if they are a member of a board whose every meeting they can attend because it is comparatively near Belfast. How could an MLA discharge their duties as a member of such a big body with such huge responsibilities as well as do their work as an MLA? It is not feasible.
Mr B McCrea:
As a busy MLA, I sit on the Education Committee and the Policing Board. If I were given the opportunity to become a member of the ESA, I presume that I would not sit on the Policing Board. That is how you find the time.
I will say one thing in response to Mr O’Dowd: we oppose these provisions because they are not about education; they are about politics. That is our position. We have made our position on the way forward in education clear in the Assembly; if he wishes to talk to me about it, he may.
Mrs M Bradley:
For several years, I was a member of an education and library board. After being at the Assembly for a year or so, I realised that I could not do justice to the education and library board. For that reason, I felt that I had to resign.
The Deputy Chairperson:
Schedule 1(14) deals with finance. The Committee compared the Libraries Act ( Northern Ireland) 2008 and the Education Bill. Schedule 1(15)(3) of the Libraries Act ( Northern Ireland) 2008 states that:
“the Authority shall pay to the Department all sums received by it in the course of, or in connection with, carrying out of its functions.”
The Department in question is DFP. Why is a similar provision not in the Education Bill?
Mr Stewart:
Those are commonly known as “appropriations and aid”, by which a Department or public authority receives a significant income stream. That schedule of the Libraries Act ( Northern Ireland) 2008 reflects the standard arrangement for returning that money to the centre. We did not see a need for that in the Education Bill, simply because the ESA will not receive significant sums of money.
Mr Lunn:
Can the Library Authority borrow money?
Mr Stewart:
I am not sure, but we have specifically excluded that from the ESA.
The Deputy Chairperson:
The Council for the Curriculum, Examinations and Assessment brings in money.
Mr Stewart:
It does. Its arrangements will carry forward into the ESA. However, we did not see a need for an arrangement similar to that in the Libraries Act.
The Deputy Chairperson:
Why not?
Mr Stewart:
I am not sure what DCAL’s thinking was on the Library Authority. However, a similar need simply has not arisen in the Department of Education.
The Deputy Chairperson:
Perhaps you should look into the matter.
Mr Stewart:
I will. However, I am afraid that I cannot comment on DCAL’s thinking on the matter. I will look at it again with regard to the ESA.
The Deputy Chairperson:
Page 186 of the same document relates to schedule 1(7)(5) to the Health and Social Care (Reform) Act 2009, which states that:
“ Every member of a committee who, at the time of appointment, was a member of the Regional Board shall, on ceasing to be a member of the Regional Board, also cease to be a member of the committee .”
Is that not the case with ESA?
Mr Stewart:
I am not entirely familiar with that provision of health legislation. In the Education Bill we have not insisted that every member of a committee must also be a full member of the ESA. That being the case, it would not be logical to have an equivalent provision to require someone to stand down from a committee if that person also stood down from ESA.
Mr O’Dowd:
Sub-paragraph (3) states that:
“A person who is not a member of the Regional Board shall not, except with the approval of the Department, be appointed to a committee .”
Does that not give the Health Department leeway to alleviate any discrepancy?
The Deputy Chairperson:
That allows a person to be appointed.
Mr O’Dowd:
Aye. However, if I have picked up your point correctly, my understanding is that if someone leaves the board, he or she must also automatically leave the committee and — I know that we are talking about the Health Department — the Department cannot, in those circumstances, reappoint someone to the committee.
Mr Lunn:
I think that it says the same thing in schedule 1(7)(2) to the Education Bill, which is also on page 186.
Mr Stewart:
There is a similar requirement for departmental approval of committee members when they are not members of the ESA. That is correct.
The Deputy Chairperson:
OK. We will move to the next presentation, which is on the transfer of staff. The matter is dealt with in clause 9 and schedule 2 to the Bill. The lion’s share of the work has fallen on your shoulders, Mr Stewart.
Mr Stewart:
It always does. It is well deserved.
The Deputy Chairperson:
Your colleagues have an easy time.
Mr Stewart:
Thank you, Deputy Chairperson. As you say, clause 9 and schedule 2 deal with the transfer of staff from the employment of boards of governors to the employment of the ESA by means of staff-transfer schemes. That transfer is intended to take place on 1 January 2010, subject, of course, to the will of the Assembly. However, as we have discussed over the past couple of weeks, it would need to be commenced earlier than that; indeed, at Royal Assent. That is to allow the Department to draw up the necessary transfer schemes in time for them to be implemented on 1 January 2010.
Schedule 2 sets out the detailed provisions that will govern the transfer. Those are consistent with similar provisions in other review of public administration legislation and with the guiding principles that have been issued by the Public Service Commission. I want to draw three points to the Committee’s attention.
First, at paragraph 2(4), there is reference to the Transfer of Undertakings (Protection of Employment) Regulations 2006, which are more commonly referred to as TUPE. The effect of the provision is that TUPE regulations will apply, which means that staff will transfer on their existing salaries and terms and conditions of employment.
Schedule 2(6) and 2(8) extend that a little further and deal with pensions; they provide that staff will be afforded pension protection.
Staff rights to acquire pension benefits, when taken as a whole, will be the same as, or no less favourable than, those that they enjoyed before their transfer.
Paragraph 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 deals with continuity of action. That provision ensures that actions that former employers have taken in respect of employment will remain valid and that actions that former employers take at the time of transfer can be carried on by the education and skills authority as if it had initiated those actions in the first place.
The Deputy Chairperson:
You said that the Transfer of Undertakings (Protection of Employment) Regulations 2006 will apply. Will that not mean that the education and skills authority will have to deal with a plethora of staff who had different terms and conditions of service with their previous employers? Could that not raise equality and job evaluation issues and cause the education and skills authority a huge headache?
Mr Stewart:
It certainly means that there will be groups of staff in the organisation, at least initially, who have significantly different terms and conditions. The regulations will provide some scope for equal opportunities and equal pay claims; there is no doubt of that. The education and skills authority will have to manage that significant challenge. However, I have no doubt that the aim of the organisation will be to harmonise and equalise terms and conditions for all staff over time.
However, that needs to be done in the normal way, through negotiation and engagement with staff and trades union representatives. Bearing in mind the provisions in contracts of employment, the education and skills authority cannot simply ride roughshod over terms and conditions. That harmonisation will have to be negotiated and worked through over time.
The Deputy Chairperson:
Has the chief executive designate begun any negotiations with trades unions, teachers or others, in the interim before the Bill is enacted?
Mr Stewart:
The chief executive designate has yet to hold any specific negotiations. At present, Gavin Boyd and his team are working on the draft transfer schemes and are engaging closely with trades union colleagues on that. I do not think that Mr Boyd needs to look at particular terms and conditions just yet to examine how they might evolve over time. Mr Boyd and his colleagues are also talking to existing employers about the Transfer of Undertakings (Protection of Employment) Regulations 2006, as they place certain responsibilities on existing employers to engage with staff to ensure that they are properly informed and consulted about the transfer.
The Deputy Chairperson:
In the interim between the education and skills authority’s being set up and the harmonisation of a plethora of various conditions of service, is there not the danger of gridlock if individuals decide to pursue cases?
Mr Stewart:
It is difficult to comment on possible gridlock without going over all the facts and figures on the degree of variation. However, we are aware of the possibility. I assure you that the education and skills authority implementation team (ESAIT) is aware of it and takes it very seriously. At present, I do not think that it is possible to predict exactly what will happen.
The Deputy Chairperson:
Is there a plan to bring about harmonisation?
Mr Stewart:
No; not at present.
Mr Lunn:
Is there anything in the regulations about the transfer of staff that is unique to this situation or are they fairly standard?
Mr Stewart:
To the best of knowledge, the regulations are standard and consistent across the RPA.
Mr Lunn:
That is how it looks. It is complicated, but well rehearsed.
Mr Stewart:
There are the usual complications.
The Deputy Chairperson:
Given the headache that could arise from the harmonisation of terms and conditions of service, would it not be sensible for the education and skills authority and the chief executive designate to attempt to scope any potential problems and to formulate a plan of harmonisation now rather than wait until the authority has been set up?
Mr Stewart:
That is a sensible suggestion. I expect a degree of consistency on the extent of that variation among the five education and library boards. I am hopeful that there will not be a major difference among the boards and the CCMS. There is, perhaps, greater scope for variation in schools, particularly those that are currently employers. There is consistency in employers’ terms and conditions, but not always in the application of those terms and conditions. Nevertheless, your suggestion is valid, and we recognise the risk. Like all risks, it should be managed and scoped early.
The Deputy Chairperson:
There is, presumably, some equivalence between the maintained and controlled sectors at the moment; however, the difficulties arise with voluntary grammar schools. Such problems have already arisen with classroom assistants, whose terms and conditions are still under consideration and whose jobs are still being evaluated even though that process is almost complete for board staff.
Mr O’Dowd:
The job evaluation process has been under way for many years and has brought many workforces’ terms and conditions into line. The advantage of a single employing body is that any future job evaluation will encapsulate all staff. Is that the type of process that Gavin Boyd, or whoever, must adhere to in future?
Mr Stewart:
He will have to do so where there is a need for job evaluation. The process to which Mr O’Dowd refers has been under way for many years, and the Public Accounts Committee has sharply criticised the Department’s stewardship of the matter. A clear message and key recommendation that arose was that the Department did not ensure sufficient consistency and commonality of process and practice across the education and library boards and the various organisations. We have learnt that lesson, and, as Mr O’Dowd rightly says, it is a key plank of the rationale for establishing a single employing authority for education. In future, it will protect the interests of staff and of the taxpayer, and the recent job evaluation difficulties should not arise again.
The Deputy Chairperson:
After the classroom assistants’ dispute, the Minister announced that she will initiate an education workforce review, as the matter is related to terms and conditions of service. Has there been any correlation between the Department’s review and the ESA’s work to ensure harmonisation of terms and conditions?
Mr Stewart:
I cannot comment on that matter, because I am not closely involved in the workforce review. If it is helpful, I will investigate the matter when I return to the Department.
The Deputy Chairperson:
It would be useful to ensure that there is dialogue on that front. We will move to the presentation on clause 22 and schedules 3, 4 and 5, which relate to the transfer of assets.
Mr Stewart:
Clause 22 outlines the scope of the three schedules. Schedule 3 deals with the transfer of the assets, liabilities and staff of the various dissolved bodies to the ESA on the appointed day; schedule 4 addresses the transfer of certain assets and liabilities from the Council for Catholic Maintained Schools before the appointed day; and schedule 5 outlines arrangements for the transfer of certain staff from the Department to the ESA on the appointed day.
We intend that the provisions will commence on Royal Assent so that the Department can draw up the necessary transfer schemes before the appointed day. However, with the exception of schedule 4, the schemes will not come into operation and the transfers will not take place until the appointed day. The slightly different approach in schedule 4 stems from the fact that some CCMS assets ought to be transferred to the Church rather than to the ESA, because they were funded by the Church in the past.
The schedule would allow for those assets, and any associated liabilities, to be identified and transferred to the Church before the appointed day. Thereafter, all other assets and liabilities of the CCMS would transfer to the ESA on the appointed day by means of a scheme under schedule 3 rather than schedule 4.
Schedule 3 is similar in construction and effect to schedule 2, but there are a couple of points to emphasise. Paragraphs 1 and 2 contain exclusions for assets and liabilities that relate to libraries’ matters, which would transfer to the Library Authority rather than to the ESA. Likewise, where the continuity of action provisions relate to libraries’ matters, they point to the Library Authority rather than to the ESA.
Schedule 4 is similar, but, again, the continuity of action provisions relate to the Church rather than to ESA. Schedule 5 is similar in construction and effect.
The Committee will be aware of the Executive’s decision that Civil Service staff who transfer to the ESA and other RPA organisations will be offered a choice between permanent transfer and secondment. That does not require a change in legislation. Permanent transfers will be dealt with under the provisions in schedule 5, while secondments will be dealt with by provisions in schedule 1(5)(6) and 1(5)(7).
The Deputy Chairperson:
Will school buildings be included among the assets that are returned to the Church? Would all assets be covered by legal agreements that could be easily identified?
Mr Stewart:
The assets are office premises rather than schools; schools are already in the ownership of the Church and will remain there. They are office premises that are formally in the ownership of the CCMS but which have been gifted to the CCMS by the Church or funded by the Church in the past.
Where the Department has invested in improvements to premises that were funded or gifted by the Church, arrangements may have to be put in place so that the Department can clawback its share of the money. It is in recognition that although the CCMS is a public authority not all its assets are publicly funded. Natural justice suggests that they should be returned to the Church, whence they came. All publicly funded assets will transfer to the ESA on the appointed day.
The Deputy Chairperson:
What arrangement will the Department have to clawback its investment in premises?
Mr Stewart:
It will depend on the agreement that was put in place, but, essentially, we will get back what we put in.
The Deputy Chairperson:
Is that in the existing agreements?
Mr Stewart:
Where there are existing agreements in place, yes. I would need to study the detail.
The Deputy Chairperson:
What happens where there are no existing agreements?
Mr Stewart:
There may or may not be existing agreements, but there will be in every case clear detail of the ownership and level of investment that the Department has made in an asset; we will ensure that we get out what we put in. The legislation is drafted to allow for that. It is for the Department to make the necessary transfer schemes in either case. The Department will need to be satisfied of the need to transfer an asset to the Church. The default is that anything that is not transferred to the Church transfers to the ESA.
The Deputy Chairperson:
You say that there will be records of investment made by the Department in those premises, and to use your words:
“We will get back what we put in.”
Is there a formula for that?
Mr Stewart:
I would need to check on the detail and come back to the Committee.
Mr O’Dowd:
Will the process be governed under the Department of Finance and Personnel guidelines and procedures? There is already a set statutory process to which all Departments must adhere.
Mr Stewart:
It will; and DFP will look very closely at what we do to ensure that we adhere to that guidance.
The Deputy Chairperson:
Would there not be a massive legal task in the conveyancing of properties back to the Catholic Church or of assets back to the Department? Will that not create the kind of huge administrative burden that the ESA is being set up to avoid?
Mr Stewart:
There will be a significant administrative task in transferring all the assets, including those of the education and library boards. Those assets must be identified, listed and catalogued, and all the necessary legal documentation transferred and amended in order to make the change.
The transfer back to the Church of a relatively small number of properties will not be a major element of that huge challenge. The Deputy Chairperson is right that the task is big, but it is unavoidable. The asset base in the controlled sector alone is worth some £2·3 billion. The Department must ensure that the transfer is legally sound and watertight.
The Deputy Chairperson:
Finally, do the transfer-scheme provisions in schedule 5 take into account procedures that are required to address the rights of Civil Service staff?
Mr Stewart:
I am not sure that I understand the question.
The Deputy Chairperson:
Presumably some of the staff moved from the Department will be Northern Ireland Civil Service members. Will their rights be protected in schedule 5?
Mr Stewart:
Yes; there will be consistency. Anyone transferring to the ESA permanently will no longer be a civil servant; they will lose their Civil Service status. Nevertheless, the protection will be similar to that afforded to staff transferring from other organisations. TUPE — and the level of pension protection — will apply.
The Deputy Chairperson:
In the absence of any other questions, I thank the witnesses and have no doubt that we will meet again before very long.