COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
25 March 2009
Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill
Mr Edwin Poots
Witnesses:
Mr Chris Stewart )
Ms Eve Stewart ) Department of Education
Mr John McGrath )
The Chairperson:
We now move on to the departmental representatives’ presentation. I ask John, Chris and Eve to base their presentation on their response to the issues that the union representatives have raised. We will then move to the issues that were raised by the NICCE and the CCMS at last week’s meeting. As members will recall, we were unable to get to that “rebuttal” due to time constraints. John, you are welcome once again; I hope that you did not have withdrawal symptoms having not been able to participate in last week’s session.
Mr John McGrath (Department of Education):
We were deeply disappointed about that.
The Chairperson:
I am sure that you were.
Mr McGrath:
We were drowning our sorrows all of last Wednesday. [Laughter.]
The Chairperson:
Was that not St Patrick’s Day? [Laughter.]
Mr McGrath:
Wednesday mornings would not be the same if we were not here.
I propose to make some opening remarks about the evidence given by our trade union colleagues. Chris Stewart will follow that with detailed comments on the paper that we have submitted. We will adopt the same approach in the second session.
I wish to provide clarification on some of the points that came up in this morning’s session and, particularly, in relation to Dominic’s questions. We have made it clear in recent months that the ESA’s primary, if not exclusive, objective is to raise standards. There is also an agenda to produce efficiencies through the centralisation of functions and the reduction of needless bureaucracy.
The Minister has made the objective to raise overall standards and close the gap in standards very explicit, and she has cited particular problems in particular sectors. The main vehicle for achieving that objective will be built around the school improvement policy. That will come in the final version of ‘Every School a Good School’, which is expected to be published shortly. The literacy and numeracy strategy is also linked to the achievement of that objective.
We see the ESA’s role as one of providing help, support and, where necessary, a challenge function. That challenge function will be relevant when there is evidence in the ETI reports that schools are underperforming or could do better. In conjunction with the Inspectorate, the ESA will be responsible for providing that challenge function. We see some of that role as being the same as the role played by the CCMS in the maintained sector in past years. The CCMS had a role in driving up standards in the Catholic-maintained sector, and the statistics for that period provide evidence of that.
As I have said, there is an agenda to produce greater efficiencies. Through recent Assembly Questions, and in comments to the Committee, we have made it clear that there can be no guarantee that savings will automatically go to front line services, because we may well have to meet savings targets. However, if we may have savings targets of between 3% and 4% in the education budget and the ESA is a better vehicle by which to identify and secure those savings, that is still protecting front line services because, if the ESA does not make savings in back-office services, they will have to come out of front line services.
An environment in which we have greater efficiency targets heightens the importance of that objective of the ESA; it does not reduce it, which was the implication of Dominic’s interpretation. It is still a major objective of the ESA to drive out savings. It may well be that a starker environment will be created, and that savings may have to be returned to the centre if some of the prognosis around the overall state of the Northern Ireland block comes to pass in the coming years. It is important to make that point.
The need to drive out savings — particularly from support services — is of no lesser importance. If savings are not made in that area, and a levy of 3% to 3∙5% is applied in the future, there will be no areas left from which to make those savings, except from front line services. Therefore, the issue is still about investing in front line services or, as far as possible, protecting front line services. I wanted to make remarks on savings and on standards before Chris deals with the specific details of our trade union colleagues’ evidence.
Mr Chris Stewart (Department of Education):
Thank you. First, we very much welcome the opportunity to respond to the points that our trade union colleagues have made. We also welcome the very detailed and thoughtful submissions that they have brought to the Committee: they have clearly invested a great deal of time and effort in closely studying the proposals.
For once, I do not believe that there will be much rebuttal. It is clear from the papers and from the oral evidence given by the trade unions that there is a great deal that we agree on. I will not attempt to deal with all of the issues raised in the trade unions’ papers, but I will concentrate on the main ones. We will be happy to answer any questions, or expand on any of the issues raised.
On the issue of the employment arrangements, the Department welcomes the support offered by trade union colleagues on the proposed role of the ESA as the employing authority for all staff in grant-aided schools. Clearly, there are some aspects of the proposed employment arrangements that we do not agree upon, and I will come to those later. However, we do welcome the overall support for the core arrangements.
In relation to the membership of the ESA, the Minister has noted the views expressed by trade unions on the number and composition of the proposed membership, and the involvement of district councillors. Indeed, similar points have been expressed by Members in recent weeks, and the Minister wants to carefully consider all of those views. However, at present, the Minister remains of the view that a membership of 12 is sufficient for effective leadership and governance. The Minister also feels that the proposal for a majority of members to be district councillors is important to ensure local democratic accountability.
Trade union colleagues have suggested that a proportion of the ESA membership should be reserved for trade union representatives. The present legislation and policy make it clear that membership of the ESA and appointment to that body will primarily be on the principle of merit. Trade union representatives can of course apply for appointment, but I draw the Committee’s attention to the provision in schedule 1, paragraph 5(5), of the Bill, which prevents a member of the ESA from also being an employee of the ESA. However that, in itself, does not prevent trade union representatives from applying for membership. All members will be appointed on the basis of their competence and experience rather than on the basis of any formal representative capacity.
The Minister also notes that formally reserving a proportion of the membership for trade union representatives could give rise to a conflict of interest for those members in management and trade union matters.
On the issue of employment schemes and the role of the submitting authority, a number of points were made in the written and oral presentations about the need for schemes and the administrative burden that those might represent for schools. Also addressed was whether there ought to be scope for schools to tailor those schemes, or whether a single scheme should be imposed on all schools.
The Minister does not agree with the view of trade union colleagues that the requirement for schools to produce schemes is a bureaucratic burden. In fact, the Department views those schemes as an essential element of the employment arrangements in the Bill. The schemes will be in place to ensure that there is clarity on the respective roles and responsibilities of the ESA and boards of governors. In that, it is important to have those schemes in place, and they are in the best interest of education staff. The ESA will produce model schemes, which schools will be free to adopt if they wish to do so. In doing so, those schools can minimise the administrative burden that will be placed upon them.
The responsibility for preparing and submitting schemes will be given to schools, which is in keeping with the policy aim of allowing schools to determine the degree of autonomy that they wish to have on employment matters. In recent weeks, members have heard the views of various stakeholders who have stressed the importance and value of an autonomous role for boards of governors. The Department’s agreement with that position is reflected in the employment arrangements contained in the Bill.
The Minister has told the Committee that she is minded to propose an amendment to the definition of the submitting authority, the effect of which would be to define it, in all cases, as the owners and trustees of the school, but with an option to delegate that function to boards of governors if the owners so wish.
The Minister agrees with the views of trade union colleagues that schools should be responsible for determining the professional development needs of their staff and the advice and support services required to support those needs. At the same time, however, it is important that the ESA has a clear statutory responsibility to ensure that those services are available to schools. That is addressed in clause 13 of the Bill. However, that clause is intentionally flexible in the way in which it has been drafted. It requires the ESA to “provide or secure the provision of” such services. The word “secure” provides for budgets to be delegated to schools, or groups of schools, to provide or procure professional development services themselves. Contrary to a suggestion from one union, the Minister sees little purpose in introducing a charging regime for instances in which the ESA provides such services directly to schools. The Department considers that the administration of a charging system would be a waste of resources.
The Minister does not fully agree with the comments made by trade union colleagues on raising standards, particularly those on clause 34 of the Bill, which outlines the duty of the boards of governors. The Department considers it essential that there are clear responsibilities for raising standards throughout the education system, and the absence of such clarity is recognised as a significant weakness in the current arrangements. It is equally important to ensure that schools co-operate with the ESA in the discharge of its functions. The word “co-operate” was deliberately chosen for the legislation. It is a good description of the sort of relationship that we want, which is one that involves no aggressive challenge, but co-operation, support and challenge where necessary.
The UTU expressed concern that the Bill does not cover early-years learning, nursery schools or special education. That concern illustrates the challenge for any reader in studying such a complex Bill. The Bill must be read alongside the existing legislation, and particular attention must be paid to the amending provisions in the schedules. I am happy to reassure UTU colleagues that their fears are unfounded. The Bill does, in fact, include provisions on early-years services in clause 2(2)(a), although they are not described as such; they are referred to as educational services, which is departmental shorthand.
Equally, nursery schools fall within the definition of primary schools that already exists in the Education and Libraries (Northern Ireland) Order 1986, and that carries forward to the Education Bill. Schedule 7 to the Education Bill contains extensive amendments to the special educational needs and to the Special Educational Needs and Disability (Northern Ireland) Order 2005. The effect of those amendments is to transfer to the ESA all the functions and duties of education and library boards in relation to special education.
The Minister recognises and agrees with the importance of consultation with, and participation by, trade unions on a range of matters. She will wish to consider further whether there is a need for specific legislation to underpin that.
I turn now to faith-based education and to the specific definition of a Catholic-maintained school. In its submission, the UTU questioned the need for that definition in the legislation. The Department previously stated that the Minister views the definition as a temporary measure that will be removed from legislation, either in the first Bill, by amendment, or, failing that, in the second Bill.
However, the Department does not fully agree with the comments of union colleagues on faith-based schools or the diversity of school types in the system. Parents and children have the right to choose to attend a Catholic school, or a school of another type, if they so wish. The Department’s aim, through the RPA, is to have a single system of administration to support a diversity of school types. It is not, and has never been, our aim to reduce the diversity of school types within the system.
Finally, I shall address a point made by an important organisation that was not present today. The forum of nursery school teachers expressed concern about the lack of support and training for nursery school principals and staff. I am happy to reassure trade union colleagues that the duties in clause 13 relate to all grant-aided schools, including nursery schools. I shall pause at this point, and we are happy to take questions.
The Chairperson:
Thank you. I wish to follow up on a couple of matters. Given that the Minister is minded to propose an amendment whereby the submitting authority for schools would become the owners, or trustees, of those schools, and given the current arrangements for the controlled sector, in which no body has been established that might own schools within it, is there not a risk that maximised, accountable autonomy will be lost?
Furthermore, when we were discussing the establishment of such a body, concerns were raised that it might be subject to paying VAT. At that time, we were told that we were within days or weeks of receiving a response on that matter from the Treasury. Since then, we have not heard tell of the response, so we do not know the current thinking on the subject. We are concerned that the matter seems to be in abeyance.
Mr C Stewart:
I am not aware of whether we have had a formal response from the Treasury, but I will certainly take the matter up with Department of Finance colleagues. Our view on the matter is clear. We wish to ensure that there will be a VAT exemption for any statutory authority involved in education, and we will forcibly convey that point to our Treasury colleagues.
With regard to the first part of your question, it is certainly true that the principle of accountable autonomy would be seriously weakened, or damaged, if we were unable to apply it consistently, and on the basis of equality, to all school types. That is why it is important that we determine where the submitting authority responsibility should lie for controlled schools. In consultation paper 20, we suggested that that responsibility might be assigned to the controlled schools’ ownership body. Alternatively, due to that sector’s unique nature, it might be more appropriate to place the responsibility directly with boards of governors. We will wish to reflect on that idea and to carefully consider what has been said to us in response to the consultation, which is coming to an end.
The Chairperson:
In your written submission, you stated that the Minister does not accept that the preparation and operation of employment schemes and, presumably, their ease of management would be a bureaucratic burden. Public bodies that are subject to section 75 of the Northern Ireland Act 1998 are charged with preparing and submitting equality schemes, in light of model schemes of guidance. The guidance for section 75 duties runs to 153 pages. What assurances can you give boards of governors about the size of the bureaucratic task facing them?
Mr C Stewart:
The arrangements that we have proposed are sufficiently flexible for a board of governors to decide what priority, and how much effort and resource, it wishes to expend on developing a scheme. We will ensure that a range of model schemes are available for different types of schools, so that, wherever possible, a school will be able to lift a model scheme off the shelf and adopt it as it stands. If that is the case, the burden becomes vanishingly small.
On the other hand, we have heard from a number of stakeholders — and this point was emphasised in last week’s evidence session — that some schools and sectors do not regard section 75 obligations as a burden: they regard as absolutely essential to the maintenance of their ethos that they have the opportunity to invest time and resources in designing their employment arrangements.
The proposals in the Bill would allow for that. Therefore, no school will be compelled to expend effort and resources in developing an employment scheme if it does not want to, but the opportunity will be there for those schools that do.
The Chairperson:
You mentioned a number of models for the different school types. What differences would there be between the models for the different school sectors? As was said earlier, we are trying to get a more unified approach to the employment of staff in our 1,200 schools.
Mr C Stewart:
The differences may be less than some people fear, and there is strong agreement on that between us and our trade union colleagues. We have made it clear that every employment scheme must comply with education employment law. We will also expect every employment scheme to reflect best practice on employment matters. Best practice is best practice, so we would not expect to see a significant variation on that between schemes from different schools or different sectors.
There is perhaps scope to tailor schemes a little more precisely on issues of ethos. That remains to be seen, but I do not think that that will form the majority of a scheme’s content; it might be a small part of the scheme.
Mr D Bradley:
In regard to savings, Gavin Boyd told the Committee at a previous meeting that the £20 million in savings was over and above the education budget and that it was going directly to front-line services. The situation has changed. I accept the point that the money will now be used to protect front-line services, but it is not added icing on the cake as was suggested to us at the beginning.
Mr McGrath:
The savings in the current budget period have already been allocated to go back into front-line services. The conversations recently have been about future savings that the ESA will generate. We are simply making the point that we may not always be able to guarantee that those savings will go into front-line services instead of going against savings targets. In the current budget period, some of that £20 million has already been allocated to front-line services.
Mr D Bradley:
I take your point, but the scenario is different to the one with which we were first presented.
The Committee received a letter from school principals that I quoted from at a previous meeting. At that meeting, I asked you what empirical evidence there is to suggest that the ESA would be successful in raising standards. You answered that the ESA will be based on the model of the CCMS, which was successful, so it logically followed the ESA would be successful.
Mr McGrath:
I do not think that we made it sound like an automatic process. There is an issue about standards, and we have enough evidence to say that there are issues that we need to tackle. The current structure does not give an even focus across the different sectors.
To again reflect what trade union colleagues have said, the bulk of evidence shows that standards are improved by improving the quality of teaching. That is how the model that we are talking about facilitates an approach to professional development in which schools commission what they want instead of taking what they get. That is how standards will be improved.
The issue is not just about the ESA per se; it is also about the approach to accountable autonomy, a better approach to professional development and an element of challenge when institutions are seen not to be performing as well as they should be and when the opportunities for kids are not what they should be.
Mr D Bradley:
OK. You heard the evidence from the representatives of the teachers’ unions, and they are clearly not happy with the proposed approach. They think that it is too closely founded on the English approach of constant inspection and placing principals under pressure. Moreover, they believe that the versions of ‘Every School a Good School’ that have been introduced to date contain, in my words, too much stick and not enough carrot. The Department, the teachers’ unions and the inspectorate need to agree on the best possible approach, based — as the union representative said — on a collegiate model, rather than on a model that could cause confrontation.
Mr McGrath:
I have no difficulty with that suggestion. My colleagues, particularly Katrina Godfrey, will have briefed the Committee on the specifics of the issue of standards and how ‘Every School a Good School’ will progress. I know that Katrina and her colleagues had considerable discussions with trade unions during the development of ‘Every School a Good School’.
When we use words such as help, support and challenge, it is important that the concept of “challenge” is not automatically considered adversarial. If an inspectorate report shows that a school is at the bottom level of performance, no one will dispute that everyone in the system has a duty to address that issue. The challenge for the school and the wider system is how to improve performance. The approach does not necessarily have to be adversarial, but the ongoing level of performance must be challenged with a view to increasing it as much as possible.
The ESA model should help and support all schools and should challenge schools in which performance levels could be better. In the future, some schools might, given their circumstances and resources, be deemed to be performing satisfactorily but could do better. That situation does not necessarily have to be approached in an adversarial way. Challenge should not be interpreted in that way. The approach should determine how to improve children’s prospects.
Mr D Bradley:
I did not interpret it in that way. However, based on the evidence from the teachers’ unions, there is potential for disagreement on the approach to raising standards. I am asking you to ensure that there is no disagreement and that all relevant parties are singing from the same hymn sheet. Such an approach will avoid a confrontational situation between the employers and the unions.
Mr McGrath:
I fully believe that there is a consensus among everyone on the need to raise standards.
Mr D Bradley:
I agree.
Mr McGrath:
We are talking about modalities, and I will relay members’ points — in particular, Dominic’s comments — to the officials who work more closely on the specifics of the standards agenda.
Mr C Stewart:
I may be able to offer more reassurance to trade union colleagues. In comparing the proposed approaches here with the approach in England and Wales, I draw the Committee’s attention — as we have done in the past couple of weeks — to the respective legislation. The School Standards and Framework Act 1998 outlines a range of significant intervention powers for local education authorities. Whether or not one thinks that the balance between carrots and sticks in the Education Bill is correct, it contains no new sticks. No new intervention powers are proposed for the ESA.
Mr McCausland:
Chris said earlier that — except for some references to ethos — schemes of employment will be more or less standard across all sectors. How will ethos feature in schemes of employment?
Mr C Stewart:
That is difficult to predict without hearing more about how the sectors want ethos to be reflected, but —
Mr McCausland:
Which sectors have raised that matter to date?
Mr C Stewart:
The Catholic education sector, the Irish-medium sector and, to a lesser extent, the integrated sector tend to raise that issue most often. The controlled sector’s interest is beginning to grow, and it is starting to recognise that it has the freedom to define an ethos for itself. Therefore, it needs to think about what its ethos might be, and how it might be reflected in everything from governance through to employment.
To return to your question, one might expect a scheme of employment — for example, in a Catholic school — to make it clear that, in recruiting and selecting members of staff, part of the appointment procedure would be to test candidates on their knowledge and understanding of the ethos of Catholic education.
Mr McCausland:
Could you have a situation in which — across all sectors — you delete the word “Catholic” and put in a generic term that would apply to the appropriate sector?
Mr C Stewart:
It is quite possible that all sectors could start off in different places and eventually find themselves in similar positions. We have made the point to several sectors that we recognise and value their ethos and understand its importance to them. When one considers the strength of ethos in various sectors, they have much in common.
Mr Lunn:
The Minister said that she was not prepared formally to reserve a proportion of places on the board for trade union representatives because it could give rise to a conflict of interest. How does she square that with the presence of such representatives on education and library boards?
Mr McGrath:
The Minister did not establish the education and library boards, so she has no ownership of those governance arrangements. They predate her appointment. They are very large bodies, and bodies with that size of membership are few and far between in governance terms. Whereas in the past, it was possible to accommodate a representative model with 30 members or more, it is now difficult to accommodate that within the numbers discussed for the ESA and other public bodies.
Mr C Stewart:
My understanding of the legislation is that positions are not reserved for trade union representatives. There is a difference between a system that is open and allows people to take part and a system or set of arrangements that reserves places for particular organisations or stakeholders. The issue of conflict of interest is important. If I were a teacher, I would look to the trade union to represent my interests and not to sit on the management side of the table.
Mr Lunn:
If the trade unions want input at the top layer of the ESA, surely the conflict of interest issue could be dealt with. Such representation is made on lots of boards and organisations, and sometimes members simply have to exclude themselves from certain discussions. Conflict of interest should not preclude the trade unions from having proper input for most of the ESA’s business. The issue is probably academic anyway, because if the Minister sticks to a 12-person maximum for the board, seven of the members will be councillors.
Mr C Stewart:
The conflict of interest issue in that case would be extremely difficult. I can think of few aspects of the ESA’s business or affairs that would not touch on employment matters. Your first point is important. It is vital that there is an ongoing, effective working relationship between the ESA and trade union colleagues. Their input to the ESA’s business is extremely important. We would expect the ESA to pursue a social-partnership approach. We expect a productive, mature relationship between the ESA and trade union colleagues, with challenge where it is appropriate without confrontation.
Mr Lunn:
Michelle has kindly lent me her copy of the Department’s response. I wish that I had it in front of me earlier. I have not seen it until now. That is another example of a last-minute production from the Department. I have not received that paper yet.
The Chairperson:
They were given out yesterday when they were received, is that right?
The Committee Clerk:
Yes, by email, and hard copies were distributed.
Mr Lunn:
Some of us get up and come straight here and do not see our emails. It certainly has not come to me as a hard copy. That is a normal complaint; everything arrives at the last minute.
The Chairperson:
That was a rebuttal for the Department, and I hope that you will take that on board again.
Mr McGrath:
Right on the chin, Chairperson.
Mrs O’Neill:
Can you assure the unions that, under clause 10 as it stands, the ESA can employ a panel of teachers?
Mr C Stewart:
Yes, it could. The clause is sufficiently flexible and broad for the ESA to employ a panel of teachers in exactly the way that trade union colleagues have described. Whether they ought to and whether that represents the best use of resources is an issue that the Department and the ESA might want to consider, but the legislation does allow for it.
Mr Poots:
The UTU raised issues about the absence of focus on special needs and early-years provision. Will you respond to that?
Mr C Stewart:
Early years is covered in the legislation. We do not use the phrase “early years”, because it is not a form of words that could easily be incorporated into legislation. The phrase we use is “educational services”. The definition in the Bill is somewhat dry and wordy, but it is there specifically because there was a need, for the first time, to put the delivery of early-years services on a proper legislative footing. It is something that we have been doing on an extra-statutory basis up until now. However, we identified the need to put it on a proper legislative basis, and it is there.
Mr Poots:
Are you satisfied that it deals with nursery provision and so forth?
Mr C Stewart:
Nursery schools fall within the definition of primary schools. The definition of primary schools is in previous legalisation, and will continue in the Education Bill.
Mr Poots:
What about the private playgroups?
Mr C Stewart:
Those would come within early years.
Mr Poots:
They do not fall within primary schools?
Mr C Stewart:
No.
The Chairperson:
Is there any other aspect that falls under the definition of educational services other than early years? Is it all-encompassing? That is always the problem; if it is not specific, those who read it may miss that. However, if there is then a challenge, the Department is able to say that it is covered because they know that that aspect is included, but you are the only guardians of that knowledge.
Mr C Stewart:
Perhaps I should explain the process of how we got there. The drafting of that particular clause was long and difficult. Members will be aware that responsibility for a range of early-years services was transferred from the Department of Health, Social Services and Public Safety (DHSSPS) to the Department of Education some years ago. There was a clear need to do that, and we moved quickly to do so. The agreement was that we would put that on a sound legislative basis at the earliest possible opportunity.
Perhaps naively, we thought that that would be a simple task, and that we would come up with a simple, clear definition of early-years services, which could be written into the Bill. When we looked more closely at what services are actually provided, they were extremely broad and diverse.
The strength of that definition lies in the fact that those primarily non-statutory providers are continually coming up with new and good ideas of the types of services that ought to be delivered in and around communities. In order to accommodate that, we needed a very broad, flexible and all-encompassing definition, and one that we hope is sufficiently open to allow for the future development of services that are not currently delivered or perhaps not even currently envisaged. That is why it is written in that very broad formulation. Had we not done so, the difficulty would be that every time someone comes up with a new and good idea in early-years services, we would have to go back to primary legislation and stretch the definition yet again in order to encompass those ideas. That is why we have taken that particular approach. I cannot tell you exactly what might fall within that definition at this stage, because we have deliberately left it very open.
Mr Poots:
I remain to be convinced on that point. I feel that private playgroups will probably get a raw deal. They do not receive the same funding or support as others, and their being put into a large silo with others may not be in their long-term interests.
I do not believe that the Minister’s notion of having 12 board members — a majority of which would be councillors — will work. That will result in there being a maximum of five educationalists on that board, and the ESA board requires a greater capacity. Furthermore, if the Department is going to go down the route of having subgroups and bringing in others from outside, it would be much better appointing a larger board and drawing the subgroups and the expertise from that board rather than externally.
Mr C Stewart:
That is a fair point. However, I emphasise that the Minister has not yet given her final answer on the size or composition of the board. She has not yet had an opportunity to come to a conclusion on the points that Committee members have raised, and she wants to do that before she indicates her formal position to the Committee.
The Chairperson:
Clause 13 has the heading:
“ESA to provide or secure provision of training and advisory and support services for schools”.
Clause 13(1) states that:
“It is the duty of ESA to provide or secure the provision of —
(a) such training, and
(b) such advisory and support services”.
A concern was raised by the unions that there is already a wealth of expertise within the education and library boards as they are currently constituted. Why is it that the ESA — in its interim and current forms — will be going outside the boards to secure and provide other services? Why is the ESA not seeking to use and utilise the excellent provision and services that already exist?
Mr McGrath:
I do not believe that the Bill is implying that. Chris’s point was that the legislation is framed so that the ESA does not necessarily have to be the direct provider, thus allowing flexibility in the future.
There is considerable resource in the curriculum work that is carried out by the Regional Training Unit (RTU), the CCEA and CASS which needs to be brought together, thus harnessing those skills and expertise. The thinking behind that provision was to create a model that was much more responsive to what schools want or need. If that model is not in the form or shape of what schools want, the Department is rightly trying to make provision for the ESA to have the duty and the flexibility to create what schools, school principals and boards of governors need for professional development.
There is a sense among many of the schools at the moment that a table d’hôte rather than an á la carte approach is being taken in relation to what is available for professional development. We said earlier that we see much more scope for schools telling us what they need and how they need it, and the ESA will then have the flexibility to respond to those requests. It will, undoubtedly, use much of the existing expertise and skills.
The delivery model will be a much more of a responsive commissioning model by schools than a delivery model that emanates from the system. That is the theme, and it reflects many of the messages that the Department has picked up from schools. Those messages have also been reflected through some of the evidence that was given by our trade union colleagues.
Mr C Stewart:
That is exactly right. The point that the Department hears most frequently from stakeholders about CASS is that there are excellent people in that organisation who provide very good services, but that it is too inflexible and not sufficiently tailored to what the schools and staff within those schools determine their needs to be. Indeed, we heard those sentiments expressed again from trade union colleagues today.
That is the reason for trying to introduce the flexibility; it is not that we see wholesale privatisation of provision. We see change through moving away from the ESA providing services and towards schools or groups of schools providing the services themselves. There are already seen some very good examples of groups of schools — particularly within learning communities — coming together, assessing their own professional development needs, carving out some resources and procuring or delivering those services in, and for, the schools. We believe that that model has a great deal of potential. We will tell the ESA that we expect it to look sympathetically and favourably on proposals from schools or groups of schools to develop professional-development approaches for themselves.
Mr Lunn:
The UTU made the point about the ESA’s duty to have regard to the requirements of industry, commerce and the professions. The union also believes that ESA should also have regard to its requirements. I assume that what the union means by that is that it is a necessary and important part of industry, commerce and the professions, and it wants its views to be considered as well. I am not sure whether it is the Minister’s response when the Department says that it is not clear about what the union means. I believe that what it means is reasonably clear. Is that simply Minister-speak for “no way”?
Mr C Stewart:
No, I do not believe so. Your explanation of it is helpful. Exactly what the union meant was not clear in its paper. It said that we need to amend the legislation to reflect unions’ needs. I was not quite sure what that meant. If it means that the clause ought to be interpreted as meaning that the teaching profession is an important one, and that its needs ought to be fairly central to the application of that clause, we fully support that. However, it was not clear from the wording in the paper exactly what it meant by having regard for trade unions’ needs.
Mr Lunn:
Is it becoming clearer now?
Mr C Stewart:
If trade-union colleagues agree with your helpful explanation, then I believe that it is.
Mr Lunn:
If trade-union colleagues were to write to you again to clarify that point, you could take it further.
Mr C Stewart:
That would be extremely helpful.
Mr Lunn:
In the meantime, however, it is not ruled out. You have said simply that it is not clear what the union meant.
Mr C Stewart:
That is correct.
The Chairperson:
On that point, I want to say, particularly to the trade-union delegation, that it will have a right to reply and respond to the Department’s paper, a copy of which we have given them. Therefore, if there are issues on which it still has concerns, we want to ensure — as we have done with others — that we try to address them. I am sure, Chris, that you are quite happy with that.
Mr C Stewart:
Absolutely, Chairman. Our door is never closed.
The Chairperson:
It takes a long time to open, but it is never closed. [Laughter.]
The Minister has now indicated that she is minded to propose an amendment to the definition of a submitting authority. An issue surrounds the submitting authority’s being the trustees — people who own schools. Following from comments that were made last week, for example, by Bishop Walsh, given the fact that trustees currently appoint four members of a school’s board of governors, is it not, therefore, sufficient for the people who are on a school’s board of governors to be able to safeguard and guarantee the ethos of that school?
Mr C Stewart:
The Minister’s policy is that it is not sufficient and that arrangements ought to allow the owners or trustees of schools, not only to make appointments to boards of governors, but to set the governance and employment arrangements within which those governors will operate, or, at least, to ensure that ethos is properly reflected in those arrangements.
The Chairperson:
OK. We will now move on to your response to the issues that were raised by the CCMS and the Northern Ireland Commission for Catholic Education. Have you provided a paper for that?
Mr McGrath:
We provided a response last week that we did not get a chance to discuss.
The Chairperson:
Of course, you did provide that paper. I apologise.
Mr McGrath:
Chris will elaborate on some of the detail of the paper that we provided. Having listened to the comments that were made by the commission and the CCMS, we were struck by the similarity between a number of their key points and the Minister’s proposals.
Strong emphasis was put on the need for a single education system, albeit one that reflects and recognises diversity. The Cardinal made specific points about the need for equality in education policy and provision. Support was expressed for shrinkage of administration and a focus on front line delivery. Bishop McKeown talked of the need to emphasise delegation to schools and the need for accountable autonomy.
Discussion took place around establishing the appropriate balance between the role of the school and the wider role of the ESA as the single employing authority. As was evidenced earlier today, the role of the CCMS as the employing authority for teachers in Catholic-maintained schools has worked, and it is difficult to see how, with goodwill, the broader model proposed cannot or will not work in the future.
The need for a flexible approach was recognised. Bishop Walsh cited the example that such an approach could deal with the problems of small schools that might well want to have a lot provided from the centre.
As the NICCE, in particular, recognised, the Department has been engaged in a continuous process of dialogue with the Church, the trustees, the commission and all stakeholders in the legislation.
The written and oral evidence shows that there is a perceived lack of clarity around some aspects of the single employing authority, and that has given rise to specific concerns on behalf of the NICCE, in particular. We would say that based on the single employing authority model that has been operating to date, namely the CCMS, those concerns can be laid to rest. The Minister is committed to continuing dialogue with the NICCE with a view to providing as much clarity as possible and, through that, to allay the concerns expressed by the commission and the CCMS last week.
Mr C Stewart:
Before I move on to the detail, I shall pick up on couple of the general points that John made. It is worth reminding ourselves that the RPA is the biggest reform of education in a generation. Therefore, it is not surprising that, from time to time, concerns and fears have arisen among a number of stakeholders. The Committee heard a number of those last week, and some more again today from trade union colleagues. As John said, throughout that process, we have and will continue to seek to address those concerns and to accommodate the views of stakeholders wherever we can. That is part of an open and transparent process.
We recognise and value the diversity of the education system and of the various sectors and school types, each of which has a distinctive character and ethos. We recognise that every sector contributes to the success of our education system and that every sector faces the same challenges of raising standards.
Every sector has a part to play in meeting the needs of children and young people. The RPA is based on that recognition. Our aim is for a modern, fit-for-purpose, value-for-money system of administration. We aim for a single system, but one supports a diversity of school types and offers the same opportunities to all on the basis of equality. We believe that the provisions in the Bill meet that aim. They threaten no school and no sector, but they offer an opportunity and a challenge to all to work in partnership for continued and greater success.
The paper that we provided to the Committee seeks to comprehensively address all of the issues raised by the NICCE and the CCMS. I will not attempt to cover all of those now, but I will concentrate on the key themes of the commission’s evidence. We will, of course, be happy to pick up any other points during questions.
The commission’s evidence posed three key questions or tests about the Education Bill. It asked about the rights of parents, the provision of the trustees to exercise their rights and duties, and the structures of support for each education sector.
On the first of those, the commission emphasised the importance that it places on the rights of parents to have their children educated in a manner that is consistent with their religious and philosophical convictions. The Minister acknowledges that right and the need to ensure that it continues to be reflected in legislation. Again, the existing legislation must be looked at, as well as the Education Bill. Article 44 of the 1986 Order includes a provision on having regard to the principle that:
“pupils shall be educated in accordance with the wishes of their parents.”
The duty in that provision will apply both to the ESA and to the Department, and it will cover the exercising by the ESA of all of the powers and duties conferred, or imposed, on it by education legislation. Therefore, the Minister’s view is that the Education Bill does preserve the rights of parents, and fully addresses the Commission’s concerns.
The second matter was the provision for trustees to exercise their rights and duties. A number of measures have been included in policy and legislation to ensure that the role of trustees to foster and develop the ethos of Catholic education is recognised, supported and, where appropriate, provided for in legislation. Specifically, there will be no change to the ownership of Catholic schools.
The role of trustees will be underpinned in the legislation, and the submitting authorities will control the schemes of management and employment for Catholic schools and have consultation rights on matters that affect those schools, ranging from planning to the appointment of governors.
Boards of governors will make key employment decisions, under the control and direction of the trustees and exercised through the schemes of employment. The ESA will be bound by the schemes of employment, and it will be under a legal duty to put into effect the lawful decisions of boards of governors. In addition, there will be no change to lawful criteria centred on ethos, such as the requirement for a certificate in religious education.
Nothing in the Bill impedes the desire for greater coherence within the Catholic sector and, indeed, some provisions will assist it, such as bringing the administration arrangements for Catholic-grammar and Catholic-maintained schools closer together. Trustees will continue to have modest public funding for professional support for the discharge of their roles.In its evidence, the Commission referred to two matters under the heading: the connection between employment and ethos and exemptions from equality legislation. With respect to employment, the Commission suggested that individual boards of governors, rather then the ESA, should be the formal employers of staff. As John McGrath said, we do not fully understand why the Commission feels that only individual school employers can safeguard the ethos of Catholic schools. That strikes us as somewhat strange for three reasons.
First, the fracturing of employment arrangements that that would involve seems to be at odds with the Commission’s declared aim of drawing Catholic schools closer together into a more coherent sector, particularly when, as at present, the vast majority of Catholic schools are already part of collective employment arrangements. Members will know that teachers in Catholic-maintained schools are employed by the CCMS and non-teaching staff are employed by the education and library boards. The RPA employment-model arrangements are, essentially, the CCMS model applied to all sectors, so we wonder why the commission is now arguing against those arrangements, which both it and the CCMS say are working well.
Reiterating what John McGrath said, the commission said in its evidence to the Committee that small schools might struggle to discharge employment functions without a supporting authority being in place. The commission and the CCMS also acknowledged that the CCMS has an intervention role, albeit with a light touch, but one that it exercises from time to time.
Secondly, irrespective of whether individual schools or the ESA employ staff, there would be no significant change to the responsibilities to be discharged by boards of governors, or to the requirement that all parties must act within education and employment law.
Thirdly, the proposal from the commission strikes us as unnecessary, because, under RPA arrangements, only boards of governors, and not the ESA, can decide who will be appointed to the staff of any Catholic school — a point that was reiterated by trade union colleagues. Boards of governors must comply with schemes of management and employment that will be set by the trustees.
The secondary issue raised under the heading was that of exemptions from equality legislation. In its written evidence, the commission suggested that religious schools should be exempt from the requirements of equality legislation. Members will be aware of the background to this matter, and they will know that, at the moment, the education system here is not covered by the full range of equality legislation. Schools are not public authorities for the purposes of section 75 of the Northern Ireland Act 1998, and the recruitment of teachers is outside the scope of the Fair Employment and Treatment (Northern Ireland) Order.
Against that background, we would wish to comment on two aspects. First, the commission’s paper does not make a clear case for change, and we do not know what problem or difficulty the commission was seeking to address or which aspects of anti-discrimination or fair-employment legislation it felt ought to have been set aside.
Secondly, with respect to the feasibility of the proposal, legal advice is required to determine whether the Assembly could take forward legislation such as that suggested by the commission. However, it is questionable whether such measures would be within the Assembly’s legislative competence as defined by section 6 of the Northern Ireland Act 1998.
We welcome the apparent change in the commission’s position, which it outlined in its oral evidence. The commission stated that no further exemptions were sought, and we welcome that because we believe that there is no case for such exemptions to be sought.
The Minister considers that the Education Bill recognises the rights and duties of trustees and makes effective provision for trustees to exercise those rights and duties. The Minister remains of the view that the employment arrangements contained in the Bill are the best option. Those arrangements will deliver significant benefits in relation to raising standards, professional development, workforce planning, consistency and equality and value for money. The arrangements also provide an autonomous role for boards of governors on an equitable basis across all sectors and effective ethos safeguards for owners and trustees.
The third point concerns the structures of support for each education sector. Members will know that the Department is considering a number of education sectors’ business cases for public funding for sectoral support. Each business case will be assessed for value for money and against the policy criteria that are set out in policy paper 21, which the Committee considered previously. The commission suggested that the Education Bill should include references to the role of various sectoral organisations. However, the approach in paper 21 makes it clear that sectoral organisations will be non-statutory bodies and will not have any statutory functions. Therefore, we find it difficult to see a clear or appropriate rationale for making reference to sectoral organisations in legislation.
The Minister also points out that legislation will contain sufficient duties, or other mechanisms, to ensure that there is effective consultation with education sectors. The education advisory forum will provide a formal statutory mechanism for the involvement of sectors and other stakeholders in policy formulation. That will be complemented by the existing specific duties to consult the trustees and others on a range of legislative matters and not just on development proposals for schools.
In respect of the operational functions of the ESA on matters such as raising standards, the Minister considers that any formal duties to consult should refer to boards of governors and/or the owners or trustees of schools, rather than to sectoral bodies. The trustees may, of course, request a sectoral body to provide them with advice and support in relation to such consultations.
The Minister considers that effective arrangements are being made for the support structures of each education sector. However, in keeping with the policy that is set out in paper 21, the Minister does not see a need for any new legislative provisions in relation to that matter. The commission set three key tests, or success criteria, for the Education Bill, and it is the Minister’s view that the Bill meets all three of those criteria for all sectors.
The Chairperson:
If that is the case, and the Minister feels that the Bill meets all three criteria and is sufficient for all sectors, is there not an anomaly or inequality? Perhaps you will explain the historical issue of why our schools are not all covered by the provisions of equality legislation. Nevertheless, if we go down this road, a non-departmental public body will be established for the controlled sector, to own its schools, and that body will be subject to section 75 of the Northern Ireland Act 1998. However, there will be another body, under the ownership of the trustees or the Catholic schools, which will not be a non-departmental public body and will not be subject to section 75. That is a glaring inequality, because you are not treating sectors equitably.
The two main words that came out of last week’s meeting with the CCMS and the commission were trust and clarity. There is a lack of trust on the part of both the CCMS and the commission, and there is a lack of clarity among most people. How do we reach the situation in which people have clarity and equity?
It will not be acceptable to have one sector that will be subject to all the equality scrutiny that is usually applied to a public body when other sectors are not.
Mr C Stewart:
There are a number of reasons why the existing range of equality legislation is not fully applied. A large part of the thinking concerning section 75 was the need to minimise or avoid additional bureaucratic burdens on schools. In the context of collective employment arrangements, the CCMS and the education and library boards would be subject to section 75. Therefore, there is no particular advantage in applying it a second time to individual schools.
The issue around the Fair Employment and Treatment (Northern Ireland) Order 1998 is one of ethos. At the time of the Order’s inception, the Churches felt that there was a need to exclude teachers from its provisions to ensure that measures to protect an ethos could continue to be legitimately applied. The strongest views on that were expressed by the Protestant Churches, who felt that if the exemption were not granted, there was a danger of de facto inequality for Protestant teachers who would not enjoy the same range of employment opportunities as their Catholic counterparts.
I understand your point about equity or equality between the ownership arrangements for Catholic schools and controlled schools. However, finding an answer that you would regard as satisfactory is difficult. Catholic schools are owned by the Catholic Church; an attempt to apply legislation that governs public authorities to a Church would be difficult. However, controlled schools will remain in the public sector and will be owned by some form of public authority — it would be an unusual and difficult approach not to apply the normal panoply of legislation to any public authority. Essentially, the difference is between public ownership and private ownership — between a public authority and a Church. Any attempt to subject both to exactly the same approach in legislation would be fraught with difficulty.
Committee members and a number of stakeholders have emphasised the issue of clarity on a number of occasions, and we accept that. Our approach has been based on seeking to avoid excessive detail or excessive bureaucracy in legislation. We accept that that has given rise to concern about a lack of clarity. A potential approach is to move into legislation — probably subordinate legislation — a lot of the detail that we proposed to place in guidance, and that is something that the Minister will want to consider.
Mr Poots:
What will be the situation for voluntary grammar schools, which are currently owned by trustees?
Mr C Stewart:
There are no plans to change the ownership of those schools.
The Chairperson:
If boards of governors of Catholic schools decline to employ candidates for vacancies on the grounds of ethos, where is the reassurance for Catholic trustees that the ESA will fight such cases with the same commitment as the CCMS? I am talking about cases where there is a good and arguable case that the board of governors’ decision was lawful.
Mr C Stewart:
If the decision of a board of governors has been lawful and it has applied the correct procedures, we would expect the ESA to provide exactly the same backing and support as the CCMS currently does. The issue is that the law applies equally to all employers, both current and future, in the education sector. The suggestion that is made from time to time that the CCMS, or an individual school employer, has more leeway or opportunity to act differently should be challenged, because it is not accurate. The issue from our perspective, and from the perspective of the ESA in due course, is whether the law has been correctly applied; the school will be supported if it has, but the decision made by the board of governors would not be taken forward if it has not.
The Chairperson:
You could argue that those boards are able to do that because of the exemptions that exist. Therefore, the situation is not equitable.
Mr C Stewart:
The effect of the exemption is there, whether or not one agrees with it. It applies equally to every employer, current and future. It does not and cannot apply differentially between CCMS and the ESA or, between an individual school as an employer or a collective employer.
Mr McCausland:
I am interested in the appointment of governors and boards of governors. It is a big issue with the Catholic Church.
I noticed in a newspaper recently that the Department was advertising for people to apply to register to serve on boards of governors. It was interesting that, on the form, the applicant could tick which box he or she wished to apply for: there was no provision for expression of preference. The categories were: “integrated”, “Irish-medium”, “Catholic management” and “other management”. I thought it interesting that some sectors were specifically titled, while others were not. That could be extremely confusing for some people. I will return to that point.
I am interested in the current composition of boards of governors and how, in practice, that works out. I understand the composition of boards of governors of controlled schools, but if you asked me about the composition of boards of governors in other sectors, I would have some difficulty describing it. Yesterday, I asked that question of officials at an education and library board: they had to go away and check the answer. Things tend to work in silos.
Does the Department appoint some of the governors to Catholic schools, and, if so, how many does it appoint?
Mr C Stewart:
I find myself in the same position as the hapless official at the education and library board: I will have to run away to check. The sums are extremely complicated. Some of my colleagues may be able to advise me.
Mr McCausland:
It would be useful if you were to make up a little grid: I am sure that you could do it when you return to the office this afternoon. I started to make one yesterday, but I could not get all the answers. Your grid should list all the school categories, separating, for example, controlled primary from controlled integrated primary. Presumably, there are transfers from a controlled primary but not from a controlled integrated primary.
Mr C Stewart:
I would need to check that detail. We could certainly provide that.
Mr McCausland:
In the grid, all the school categories should be listed on one side, and all the different sources from which school governors are drawn should be listed on the other. Then we would know the current situation. It seemed to me yesterday, and your evidence this morning shows, that a lot of this discussion takes place in a general atmosphere of confusion and lack of clarity. That would be a useful exercise.
How are the department-appointed governors for a Catholic school selected? Applicants fill in the form, asking that their names go forward. For example, I — or Mervyn, or someone else —decides to put his name forward to Michelle to be a governor of a school of a particular category.
Mr C Stewart:
We would be happy to take your application.
Mr McCausland:
I know that you would. [Laughter]. Suppose that the Church is reasonably satisfied with the arrangements and is content that the people coming forward are in full accord with the Catholic ethos. How does that work in the Department? How do you check that?
Mr C Stewart:
We check it through consultation. There is a legal requirement to consult.
Mr McCausland:
Who do you consult?
Mr C Stewart:
In the case of a Catholic grammar school, we consult the trustees or the existing board of governors. In the case of a Catholic-maintained school, the education and library board would carry out the consultation with the CCMS.
Mr McCausland:
Is the CCMS, or the particular order that owns the school, able to look down the list and determine who fits the criteria? How do they check that the candidate fits in with the Catholic ethos? How does it work? It is one of the mysteries of the universe.
Mr C Stewart:
It is: it is a mystery to me. You would have to ask them how they satisfy themselves about that.
In practice, I am unsure whether there is the same need to check that in detail. In proposing the appointments, our colleagues in the Department and in the education and library boards take careful note of the preferences expressed by applicants on their forms. We try to, where possible, match applicants with the type of school or, in many cases, the particular school to which they want to be appointed. Applicants tend to self-select. They apply for a particular school or type of school because they have an interest in and an understanding of the ethos of that type of school.
Mr McCausland:
However, the application form does not contain the word “controlled” even though you are appointing governors for the next four years.
Mr C Stewart:
That is a symptom of a situation that arises in several aspects of education. We tend to use management-type or administrative arrangements as a proxy for ethos. It is not a particularly exact or helpful proxy.
Mr McCausland:
My perception — which I think is widespread — is that certain sectors are looked after whereas the others must take what they get. That is how most people perceive the situation, given that names of particular sectors are not included on forms. What happens if I want to apply to controlled primary school but I do not want to apply to a controlled-integrated primary school? I suppose that I could select “integrated schools” on the form. The word “controlled” does not appear on the form — that is incredible.
Mr C Stewart:
Every applicant can indicate — in any degree of detail — for which sectors they want to be considered.
Mr McCausland:
With respect, Chris, you cannot argue this point away. Controlled schools seem to be an afterthought with the Department at a stage when it is appointing governors for four years and after much debate about the ESA and the sector. If the Department cannot even manage to include the word “controlled” on the advertisement, what confidence could anybody have in the impartiality and inclusiveness of the Department’s approach? That is the problem.
Mr C Stewart:
I find myself in complete agreement with you. The form could be improved considerably by including specific references to school types and the ethos of schools rather than to their management type.
Mr McCausland:
Therefore, I am sure that if I visit the website tomorrow the form will have been changed.
Mr McGrath:
Chris has recognised — as I do — the merit of your points, which we will consider after the meeting. As was mentioned earlier, we need to do a much better job on the business of recruiting governors by explaining the role and by offering induction and training. Some of our materials are, perhaps, past their sell-by date.
Mr McCausland:
I was told that the deadline for applications is 20 May 2009. There is also an issue about how education and library boards appoint governors. The newspaper contains an advert for departmental appointees. Will there be an advert for governors that are appointed by education and library boards? Are they required to advertise? I was told yesterday that the answer is probably not. How those governors emerge seems to be another mystery of the universe.
The Department will appoint those governors for four years, and, therefore, they will serve during three years of the ESA. They will, potentially, have a larger role in the future. It is clear that, in certain sectors, the ethos of governors fits in with the ethos of the school. However, once again, the controlled sector is at a serious disadvantage, even though it accommodates almost half of the children. Could we have the grid in the next day or so?
Mr McGrath:
I am reliably informed that such a grid exists in the Department. We can obtain that for the Committee as soon as possible.
Mr McCausland:
Will you email it to members?
Mr McGrath:
We should be able to.
Mr McCausland:
That is excellent. Will you also explain how the system works in the Catholic sector? That will enable us to see how it might potentially work for the controlled sector in the future.
Mr C Stewart:
Certainly; I can talk to colleagues who administer that process and elicit a detailed description.
Mr McGrath:
We can maybe bring a paper back to the Committee, because we are looking at how we are going to modernise our whole approach to that, so we need to set it in that context.
Mr C Stewart:
You rightly pointed out a number of deficiencies in the current arrangements. In doing so, you are making a good case for us to move as quickly as possible to establishing the ESA and to having new and revised arrangements to address the very issues that you raised.
Mr McCausland:
Your logic was going well and then it went slightly astray, but we will allow for that. I want you to move to a new system of equality. It is about getting that correction, and I welcome that. Getting that information will help us in that direction.
The Chairperson:
Would it not be preferable to move to the system in the Bill, rather than to the system with the ESA? Then you would have the trust that we spoke about earlier. It is clear that other sectors have issues. Nelson articulated the issues from the point of view of the controlled sector — there is no trust there.
Mr C Stewart:
Many sectors have issues with governance, and the point that you made at the beginning was absolutely correct. The current arrangements are Byzantine. There are weird and wonderful arrangements of compositions of boards of governors, and separate administrative arrangements and different management types for schools have developed over the years. However, the central thrust of the RPA proposals is that that is unnecessary. It adds no value; in fact, it detracts value from the education system. Therefore, we need to move as quickly and as far as we can towards harmonising those arrangements.
You made a particular point, which is symptomatic of the situation — instead of responding to and addressing issues of ethos properly, we use management type as a very imperfect proxy. We need to move away from that. Ethos has a role to play, and it needs to be recognised and handled properly on an equitable and consistent basis across all sectors.
Mr D Bradley:
You answered the point that was made by the commission, which suggested that boards of governors should be the formal employers of staff rather than the ESA. However, it is not beyond the realms of possibility that that arrangement will change in the future. It may turn out that boards of governors, not only in Catholic maintained schools, but in other schools, will become the employers. If that were to happen, how would you protect teachers from the current situation, which the unions described earlier, that is, lack of clarity; pension difficulties; lack of transparency; lower standards; discrimination against women; and so on? If boards of governors were to become the employers, would the Department be in a position to ensure that that situation would not exist in the future?
Mr McGrath:
The Minister is supporting the model of a single employing authority to tackle, inter alia, the sort of issues that trade union colleagues flagged up and that you have repeated. If we were to conjecture that we lived in a world in which there was no single employing authority, the issue of how we would stop those matters arising would be down to political decisions and legislation, and to moving from the situation that we are trying to put in place to change it.
Mr D Bradley:
Yes, but it is not beyond the realms of possibility.
Mr McGrath:
That issue would be addressed when those changes were being made.
Mr D Bradley:
That is what I am asking. Would you be able to address those issues in the future?
Mr McGrath:
I do not know. On the basis of the direction that we were given on the issue, the single employing authority is rightly seen as a method of tackling and eradicating existing deficiencies. If someone wanted to replace the single employing authority, it would be a challenge to demonstrate that those deficiencies did not return to a greater or lesser extent.
Mr D Bradley:
It would be down to boards of governors then.
Mr McGrath:
No. It would be down to the person who might be sitting at this table at a future date articulating the case for a change in legislation that their Minister of the day wished to implement.
Mr C Stewart:
That is entirely right. It would be extremely difficult under those arrangements. The Department could not abandon its responsibilities, but it would be extremely difficult for the Department or the ESA to address the range of risks and difficulties that you listed.
One of the things that was said in an evidence session last week — and it was stated previously by the GBA — was that we ought to be in a position whereby individual boards of governors are the determinants of what is lawful and what is not.
If the Assembly decided to do that, the difficulty would be that 1,251 schools potentially represent 1,251 approaches as to what is correct, lawful and best practice in the publicly-funded education system. In those circumstances, it would be extremely difficult to ensure the sort of consistency or equality that I think lies behind your question.
Mr Lunn:
On the issue of the consultation on the appointment of community governors, and the commission’s request that “consult” should be changed to “in consultation with”, I see that the Department regards that wording as too imprecise. Is that based on legal advice?
Mr C Stewart:
Yes, it is.
Mr Lunn:
There is no onus on the Department to make a suggestion for a change to something that it agrees with, but how would the Department have responded if the commission had asked for a change to “having consulted with”, or to leave it as “in consultation with”, but with the caveat that the ESA has the ultimate decision? I believe that I am right in saying that that is in the Bill anyway — the phrase “community governors chosen by ESA” is repeated about 10 times, and “amendments to the scheme” is also mentioned. Therefore, that is pretty clear. What is the problem about using the phrase “in consultation with”?
Mr C Stewart:
The Department considers the proposal to be very clear. What is not clear is what the commission is telling us is broken. Before we try to fix it, we must know what is broken.
The commission said to the Department and stated in its evidence to the Committee last week that the current arrangements are working very satisfactorily from its point of view. Those current arrangements are clear. We know exactly — in legal terms — what “consult” and “appoint” mean. The difficulty is that the Legislative Counsel states that he does not know what “in consultation” might mean. It sounded to him, as it did to me, like joint appointment. The difficulty with joint appointment arises when the two participants fail to agree.
Mr Lunn:
I did not get that impression from the evidence last week, but I suppose that I can look at the wording again.
Mr McGrath:
In the evidence session last week, Bishop Walsh in particular made the point that they were happy with the existing arrangements. He seemed to have a view that the form of wording that the commission was offering would somehow imply a guarantee that there would be deeper and more meaningful consultation than the form of wording that the Department was suggesting. In a sense, it is neutral — the spirit of the consultation is separate from its precise legal nicety.
The Department is saying that the legislative draftsman sees a probable diminution — rather than added value — in using the words “in consultation with”. Ultimately, the appointments will be made by the ESA, and diluting that will cause confusion.
Mr C Stewart:
That formulation carries considerable risk. We must avoid making bad law, and law that is not clear is bad law. We know what “consult” means. There is a body of case law that sets the parameters very clearly.
We know what a “reasonable requirement” is for the ESA or any public authority — what it must do, and how it needs to conduct meaningful consultation. However the phrase “in consultation with” would be new territory. Its meaning would be unclear; therefore, carries a significant risk of making bad law — law that is not clear and that would have to be interpreted by the courts, probably after a dispute.
Mr Lunn:
If they come back to the Department with the suggestion of using the phrase “having consulted with”, would your legal expert consider that?
Mr C Stewart:
We would certainly seek advice on that. With my usual caveat that I am not a lawyer, I cannot see any difference between “having consulted with” and the form of words in the Bill.
Mr Lunn:
I am not a lawyer either, but I fancy that I can see a difference; “having consulted with” is much closer to “consult” than “in consultation with”.
Mr C Stewart:
Sorry, that is what I meant. I do not see any difference between “having consulted with” and “consult”.
Mr Lunn:
If there is no difference, why not placate them? I will have them put that to the Department to see what happens.
The Chairperson:
You made a comment that law that is not clear is bad law. The Committee has heard from a number of people who said that there was no clarity in the Bill; therefore, it must be bad law. Furthermore, you have also said that the Department is going to make changes and propose amendments.
Mr McGrath:
Sometimes law is changed to change the proposed content and purpose of it. On other occasions, it is changed — and rightly so — because it is not clear or because the provisions do not deal with the purpose behind the law, which can easily happen. However, as Chris said, if something on the statute book is confusing and misleading, it is bad law.
Mr C Stewart:
Certainly, law that is not clear is bad law. However, law that stakeholders disagree with is not necessarily bad law.
Miss McIlveen:
Did the Department carry out or commission any research into ethos and the protection of ethos in legislation? Furthermore, did the Department examine how that has been carried out in other jurisdictions of the UK and elsewhere?
Mr C Stewart:
The Department examined legislation in other jurisdictions. It has not carried out anything that I would describe as research.
Miss McIlveen:
Is it possible for research to be carried out in that area, perhaps by examining the Scottish or some European models?
Mr C Stewart:
Do you mean how ethos is dealt with?
Miss McIlveen:
Yes. I do not necessarily mean how it is dealt with in relation to the Catholic Church, although it does fit quite well into the discussion. The issue of ethos exists in and around the controlled sector also.
The Chairperson:
An issue was raised about what happened in Scotland in 1926 when Catholic schools went into public ownership. Was the ethos of those schools protected?Miss McIlveen:
The ethos of those schools was protected with legal provisions. I was wondering whether the Department carried out any comprehensive work in relation to that, which is obviously a key theme in all this.
Mr C Stewart:
No work has been carried out in relation to that. As I said, the Department has examined the legislation in various jurisdictions and the various suggestions that were made by stakeholders. The Department’s view is that the current and proposed legislation provides adequate and satisfactory protection within the body of Northern Ireland law for ethos to be properly reflected.
The case made by the commission, and the GBA before them, was that the Department simply should adopt the legislative provisions that apply in other jurisdictions. Beyond that, they did not actually make a case.
The Department has not been told what is broken that we need to fix, and I am not clear on what the commission or the GBA are arguing that needs to change. There is a risk of making bad law in attempting to legislate for something when it is not clear what it is that we are trying to legislate for.
Miss McIlveen:
I do not necessarily disagree with you, but I want to see what evidence has been used to backup the Department’s argument. I also want to see the evidence that has been used for and against the arguments of the commission and GBA.
The Chairperson:
Is there something that could be provided to the Committee to give it some indication about that issue?
Mr C Stewart:
Could you clarify that for me, please? I am not sure what the Committee requires.
The Chairperson:
It relates to what Michelle has set out. What happened in Scotland in 1926 is a specific example of how faith-based schools were placed into public ownership and certain provisions were made to protect the ethos of those schools. How is that different from the legislation that is before the Committee?
My understanding is — and reference was made to it in the submission by the commission —that in the Scottish model, specific provisions were made so that there was no dilution of ethos in Catholic schools that are governed by the state.
Mr Poots:
In Northern Ireland there is a Catholic ethos in the Catholic sector. In the controlled sector, there is a Christian/Protestant ethos, albeit not as evident as that in the Catholic sector. However, school assemblies and religious education classes do occur, which are more focused towards that Christian/Protestant ethos. The Committee wants to know how that ethos can be protected in the legislation.
The Chairperson:
How was the ethos of the transferors protected when they came into existence? Obviously, they transferred their ownership and became part and parcel of what was the then established institutions. How did they view the protection that was given?
Mr C Stewart:
The transferors have made it clear that they feel aggrieved about the changes. The protection that was given was the right to nominate school governors and the right to reserved membership on the education and library boards. We understand their position and their concerns about any changes to either of those protections.
Our difficulty is with those people who say that we can adopt a simple model that is used in Scotland or elsewhere. There are many problems with that, the first being that the legislation for the Scottish model was enacted in the 1920s. A lot has happened since then generally and in Northern Ireland specifically. We have a body of European legislation that now impacts on much of this. We have the Northern Ireland Act 1998, which determines the legislative capacity of the Assembly, and we have the European Commission of Human Rights, which not only affects statue law, but very significantly changes the body of case law and how it affects those sorts of matters. Therefore, it is difficult to say how exactly that 1920’s legislation applies in 2009, never mind what the rationale was for making that particular change all those years ago.
We are happy to look into that further and to offer what information we can to the Committee, if you feel that that will be helpful.
The Chairperson:
That will help to give us some idea of where this is taking us.Mr McGrath:
We will do our best. The issue is about what the legislation provided for, it is about cause and effect, and about the perception of whether ethos is being protected and fostered.
Mr C Stewart:
What John is saying, and what I hinted at, is that I am not convinced that there will be a great deal of value for the Committee in expending a lot of time and effort on that model. The points that Michelle and Edwin made are very significant. At present, no clear statement about the ethos of controlled schools or the controlled sector has been written down anywhere.
We will look to the controlled sector representative body to get that sector to agree on a set of principles and values in order to start forming a description of the ethos that pertains to that sector. I mentioned that point to school principals during helpful early discussions. Once we have a clearer view of what that ethos is, we can come to a view about how it might be protected in legislation.
The Chairperson:
What work is being done to try to get that definition? I know that this is probably a well-rehearsed point but, to date, we have not seen much progress on any work being done for the controlled sector. We have no business case, they are still behind and now you are putting another issue on the table — the definition of the controlled sector’s ethos. What work is being done to try to address that huge deficit?
Mr McGrath:
We are working on that, but are conscious of the fact that we had a lot on. As Chris said, we need someone to articulate and explain to us what the ethos is — it is not for us to commission an ethos. Edwin’s and Nelson’s interventions were helpful, because we are trying to promote conversations. Possibly, a question still exists over whether the controlled sector has a single ethos or whether there is a broader range, such as the examples that Edwin discussed.
Mr McCausland:
That gets to the heart of the matter. This is not going to go anywhere unless there is agreement and acceptance at the heart of the Department about the ethos of the controlled sector. As you said, that is not a matter for the Department to determine. However, legislative obligations and other obligations will help to shape that.
Clearly, the Transferor Representatives’ Council (TRC) has a role in this matter, but it is not the only player. Other organisations and interests should be involved, particularly with regard to the cultural as well as the religious ethos of those schools. The situation is not as complex as people make out. What percentage of children in the controlled sector is from the Protestant/unionist community?
Mr C Stewart:
I cannot answer that today; we can add it to the grid.
Mr McCausland:
It is probably about 95%. It would be useful if you could send on two things with the grid. One is the percentage of children from each background in each sector. Some 99% of children in Catholic schools are from the Catholic community. In controlled schools, 95% of children are from the Protestant community.
Mr C Stewart:
It would not surprise me if those figures were correct, though within individual schools there will be variations.
Mr McCausland:
Vere Foster Primary School in west Belfast is an example of a school with a varied intake. That is the only such school that I am familiar with in Belfast, though there may be others. In due course that school will close. I have spoken to folk who have connections with the school, and I believe that its closure is likely as part of a reorganisation in that area. Those children will, presumably, go to Catholic maintained schools or to Irish-medium schools.
In addition, we need to know what percentage of children in the Catholic maintained and controlled sectors come from ethnic minorities. This was a point that I made earlier to the representatives of the unions. It may be 1% or 1∙5%.
Mr C Stewart:
Again, that would be subject to considerable geographical variations. It would be much higher than that in some areas.
Mr McCausland:
It will be helpful to have that information — for the Catholic maintained and the controlled sectors — as it will remove the myth that has grown up about the huge diversity of the controlled sector. That sector is much more homogenous than people suggest.
Mr C Stewart:
I do not disagree. Neither do I disagree with the list of the features of controlled sector ethos described by Edwin. Most, if not all, schools in the controlled sector recognise those as elements of their ethos. However, it has never been written down or clearly expressed in the past. Perhaps, many in that sector have never felt that they have a right to have such an ethos or to give clear expression to it. That is something that we need to move beyond quickly.
Mr Poots:
It is an unspoken ethos.
Mr C Stewart:
Yes, it is.
Mr D Bradley:
I have a question about the role of sectoral bodies in relation to raising standards. You said that the sectoral bodies would take an interest in the performance of the schools and have a role in promoting high standards generally. How will that role interlink with that of the ESA in raising standards?
Mr McGrath:
The ESA will have an executive role in helping to raise standards in schools. Sectoral support bodies will clearly have an interest in promoting high standards and contributing to the appointments to boards of governors. However, their role is pastoral, rather than executive.
There were different articulations this morning and last week as to the role of sectoral support bodies. They will help to support the sector without, necessarily, intervening in individual schools. The executive role is for the ESA. As Frank said earlier, we should fund the sectoral bodies sufficiently for what they need to do and no more. It is important that there is no confusion: promotion of and raising standards is the ESA’s responsibility.
Mr D Bradley:
The role of sectoral bodies in raising standards is, then, ill defined.
Mr McGrath:
We expect them to have an interest. The business cases indicate that. However, they will not have a statutory duty to do so. The duty to promote standards in the public sector, and the resources to do so, belongs to the ESA in conjunction with the ETI.
Mr D Bradley:
Is it possible for the Committee to see the businesses cases that have been submitted?
Mr C Stewart:
We intended to bring them to the Committee when they were concluded. It would be unfortunate to put the business cases into the public domain in that way while we are still in negotiation with the organisations. The sectors might find that unhelpful.
Mr D Bradley:
Will we be able to see them at some future date?
Mr McGrath:
Yes.
The Chairperson:
The Committee has written to the Department listing a whole range of concerns and information requests about clause 8, and it has tried to bring them all together. Chris said that the Minister would probably propose secondary legislation. Is any thinking emerging on independent appeals or regulation to address the concerns that we have about clause 8?
Mr C Stewart:
For clarification, what I said, or what I intended to say, was that the Minister would consider a suggestion from the Committee that we should have subordinate legislation, rather than relying merely on guidance.
As regards the appeal or challenge mechanism, the suggestion that we floated earlier, which can be developed if it would be helpful, would be a specific link between the Department’s power to direct in article 101 of the Education and Libraries (Northern Ireland) Order 1986 and a complaint by a board of governors that the ESA was somehow behaving improperly in relation to the discharge of its functions. That would not be a terribly difficult technical challenge, as there is a precedent for it in the legislation. It could be argued that existing legislation already allows for that. However, there would be value in bringing the respective provisions very closely together and associating them with the employment provisions in the Education Bill. The Minister would be willing to consider a suggestion from the Committee to that end.
The Chairperson:
The Committee has put those matters in the letter which has now gone, and will await a response.
Thank you very much. We will see you next week.