COMMITTEE FOR EDUCATION

OFFICIAL REPORT

(Hansard)

Education Bill

01 April 2009

Members present for all or part of the proceedings:

Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr John McGrath )
Mr Chris Stewart ) Department of Education
Ms Eve Stewart )

The Chairperson (Mr Storey):

Mr McGrath, thank you for your patience. We have the paper, and I want to raise one specific point. Members will have questions, and we will try to get to them as quickly as possible rather than go through the whole paper.

Mr McGrath (Department of Education):

Yes, that will be fine. I will make a couple of remarks, and Mr Stewart will refer to some of the issues that have been highlighted this morning rather than track through the papers.

It was an interesting discussion. From the Department’s, and the Minister’s, point of view, we welcome the chief executives’ support, on behalf of the boards, for creating a single system — one that recognises diversity and creates a regional authority that gives appropriate recognition and importance to children’s services, youth services and early-years services. It gives regional policy with local flexibility.

The system is based on accountable autonomy for schools — autonomy for schools to decide how they will attain standards and how they will secure services and training, which will be matched by accountability for those outcomes. The ESA will support and challenge schools. Essentially, it will be a model where, in the case of many schools, they move from being in a command-and-control system to a role where they are at the centre of the commission.

Some of the chief executives said that they had issues that needed to be clarified or that amendments needed to be made to the Bill. Legislation is difficult. The Chairperson described it as an onion: it is complex; people do not always get the right interpretation first time, and, perhaps, some mist surrounds the Bill. We may have helped to diffuse some of the mists of people’s interpretations in earlier weeks, and I am reasonably sure that we can dispel most of the mists surrounding the issues that our chief executive colleagues have just raised. I hope that we will be able to do some of that now and, if not, we will deal with them at the next session.

Mr Chris Stewart (Department of Education):

I am conscious that the Committee is pressed for time, so I will keep my presentation quite short. There are three issues that I would like to cover; the others, as the Chairperson said, have been covered in the paper.

I hope that Members will forgive me for starting with two technical issues. Nevertheless, they are significant, and a clear explanation may help to avoid some of the misunderstandings that might otherwise be perpetuated.

In several of the boards’ submissions, and in the submissions from some of the other stakeholders, the view was expressed that the Bill does not cover pre-school education or nursery schools. In fact, it does. Clause 2(2)(a) includes pre-school education, but the references are to “educational services”.

That term is included specifically to cover pre-school education. As we discussed briefly last week, it is intentionally broad because that is necessary to reflect the diversity and the evolving nature of early-years services. It is simply incorrect to say that the Bill does not cover pre-school education.

Gordon Topping answered his own query about whether nursery schools are included. The definition of nursery schools falls within the definition of primary schools. The definition of primary schools is in the Education and Libraries ( Northern Ireland) Order 1986 rather than in the Education Bill. As we discussed previously, those pieces of legislation must be read and construed together, as outlined in clause 52 of the Education Bill.

I will now discuss an even more dry and technical issue. There has been considerable debate and comment about the construction of clause 2 and whether to combine youth services and early-years provision, which are currently separate. They are covered by separate provisions because it would be extremely difficult to convey those services in a single provision without damaging youth services and, specifically, without restricting the age range until which youth services can be provided.

Early-years educational services and schools focus on children and young people, and existing legal definitions set the age boundary at 18 — or 19 in secondary education. However, youth services are routinely provided for people up to the age of 25. Therefore, if we simply combined the provisions, we would have to limit the provision of youth services to people up to the age of 18. In order to retain the flexibility that colleagues and stakeholders in youth services have told us they need, we have created separate provisions.

I will now move to the more substantive policy issue. The employment arrangements in the Bill featured significantly in this morning’s discussions and in previous Committee meetings, and it is the issue that stakeholders raise most frequently. I will begin with a brief recap of the intention of the employment arrangements.

In essence, the arrangements are the CCMS model applied to all schools. Different models could have been chosen. The GBA and, more recently, the Northern Ireland Commission for Catholic Education argued that all 1,251 schools should be separate employers. The argument that the Committee heard this morning supported the concept of a single employer with a limited role for boards of governors — in effect, every school a controlled school. Those two options might have been chosen. However, the Minister chose to apply a third model — the CCMS model — to all schools.

In practice, all staff in all grant-aided schools will be employed by the ESA. The ESA is the employer in education law and in employment law, and contracts of employment will be between the ESA and members of staff. Boards of governors will have a strong autonomous role and will discharge employment functions on behalf of the ESA, which is the employer. In essence, it is a delegated model. Boards of governors will make decisions on employment matters and, in doing so, will discharge functions that are delegated to them by the ESA.

Schemes of employment will outline the delegation arrangements and the detailed role of boards of governors, as covered by clauses 3 to 12. The Department recognises that various stakeholders and the Committee have outlined — particularly in recent weeks — the need for greater clarity and certainty on the detail of the arrangements and the content of the employment schemes. The Department has heeded that message.

Until now, the intention has been that the ESA would provide guidance on the required detail. However, given the concerns that have been expressed, the Minister is prepared to consider the need for subordinate legislation rather than guidance to govern the content of employment schemes. Therefore the Bill could be amended to include a provision for the Department to make regulations on schemes of employment. Such regulations could be made subject to Assembly control and most certainly would be subject to scrutiny by the Committee.

The enabling provision that could be introduced to the Bill could state that the regulations might, among other things, specify the matters that must be included in schemes of employment and the form in which such schemes must be drawn up. Moreover, it might specify the functions that must be carried out by boards of governors, other functions that must be carried out by the ESA, or functions that could be carried out by one or the other depending on what is decided by the schools and written into the schemes.

I would not put it quite like that. You have heard contrasting views from stakeholders in recent weeks. The GBA would certainly say — and the Northern Ireland Commission for Catholic Education is coming closer to the same view — that the ESA will have too much power and control, and because the ESA will be the employer, boards of governors will have no autonomous role. There is a sense today from the education and library boards that they hold the opposite view — that we have gone too far and have allowed too much autonomy and leeway for boards of governors to do their own thing, and that there is insufficient control for the poor unfortunate employing authority, which has to pick up the tab if something goes wrong.

It is interesting that there are two such contrasting views and interpretations of the same provisions. Our response is that neither is correct. Colleagues from the education and library boards describe the Bill as a fudge; we describe it as a balance. There is a single employing authority and there is a single employer. There is one organisation that will hold the contracts of staff, but in a delegated model decisions will be made by boards of governors in the name of and on behalf of the ESA.

In our view, notwithstanding the concerns that we acknowledge about the need for more detail and clarity, the crux of those arrangements is a balanced model, in which there is a single employer, but which involves the delegation of a very strong autonomous role to boards of governors. It is, in essence, the CCMS model, which, in recent weeks, members have heard described as working very effectively in the maintained sector, and as involving a light-touch intervention where necessary. Those are positive features that we wish to see as part of the new model.

The Department does not want any more than the GBA would want; it does not want a heavy-handed interventionist approach from the ESA. Equally, it does not want a laissez-faire approach, which would leave boards of governors, in particular, feeling unsupported and unassisted in discharging the significant responsibilities that they are given. We are looking for balance, and the closest current model to that is most definitely the CCMS approach.

Mr B McCrea:

You said that it was interesting that different folk could draw different conclusions from the same piece of legislation; I drew a different conclusion from what the boards’ representatives were saying. I thought that they were saying that there was a lack of clarity; that there was a statement in support of maximum devolved autonomy, but that they were actually getting a more centralised response.

I took them to be calling for a decision one way or the other, so that the appropriate arrangements could then be made. I think that the nub of the issue is that people hear the Department stating that, rest assured, it is not its intention to do this, that or the other, but when they read what is written down, the legal interpretation from some quarters is something different. I reiterate that I think that is the nub of the problem. Obviously, one can extend the employment issue to all the other issues, including educational psychologists etc, as Gordon Topping did. However, is the Department aiming for a deregulated oversight model, or is its view that that is too much of a burden for many people to carry and that it must be done centrally?

Mr C Stewart:

The aim is very much to establish a deregulated oversight model, but there is a more general point to be made in that it is possible to put a great deal of detail in primary legislation — much more than the Department has done. That, in fact, has been the approach in education over the last 35 years, which is why there is approximately three times the volume of primary legislation on education than there is on health. If you add up the 11 Orders, there are 674 articles and 60 schedules. If those regulations were to sit on one’s desk, they would make a pile about six inches high. One may regard that as a good thing or a bad thing; there are different ways in which it can be done.

One of the consequences of that is that every time something needs to be changed, you go back to the primary legislation. In taking forward the RPA, the Department’s policy was to put as little detail as possible in the primary legislation. We recognise that the particular issue under discussion has given rise to very significant concerns on the part of stakeholders and the Committee, and that there may be a need to shift the balance and put more detail into primary and subordinate legislation.

Mr McGrath:

The detail would explain the model; it would not change it. Chris made the point that, a couple of weeks ago, the CCMS representatives pointed us to the model that they use — an employing authority with a light touch. That demonstrates that a balance can be struck, and that it can work. That is the issue that people have to understand; once all the detail is determined, it will explain the model. People have to recognise that it can — and does — work.

It is a sensitive issue, and there is a spectrum, but we are trying to strike a balance by setting up a single system. We see a single employing authority at a strategic level as being the cement around that system, as opposed to having five different systems. There will be maximum delegation to schools, and, on the other side, schools will do their best to meet and drive up standards and will be held to account for that. That is analogical with the way in which the CCMS has worked, and with the improvements in the Catholic maintained sector over the past number of years.

Mr Lunn:

We had a discussion about the inspectorate not being independent. Are you aware of any particular reason for that being the case in the first place?

Mr McGrath:

Chris, John and Even, thank you very much. Do not eat too many Easter eggs over the break.