COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill - Department of Education Officials
22 April 2009
Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Witnesses:
Mr Chris Stewart Department of Education
The Chairperson of the Committee for Education (Mr Storey):
We turn to the response from the Department. I see that Chris is on his own; his colleagues have forsaken him.
Mr Chris Stewart (Department of Education):
It takes a brave man.
The Chairperson:
Chris, I reiterate our disappointment that we received the Department’s paper only yesterday afternoon. Some members may have seen it only when they arrived in their offices this morning. We convey, again, in the strongest possible terms, that we are not happy with the timing.
Mr Stewart:
I appreciate that. It is not good enough for the Committee to receive the papers late on the afternoon prior to the meeting. On this occasion — and it is not an excuse that I can offer for previous occasions — the delay was caused in getting the paper cleared over the holiday period. That added to our difficulties. Your point is a fair one, and we will endeavour to do better than we have done in the past in getting papers to the Committee.
Mr B McCrea:
Chris, you always make apologies to the Committee, but does anyone beyond you actually listen or care about this?
Mr Stewart:
Yes; my apologies are on behalf of the Department. We recognise that our performance has not been good enough on the matter, and that we need to improve it.
I am conscious of pressures on the Committee’s time and the fullness of its agenda. If it meets with the approval of the Chairperson, I will make a short presentation to cover both sets of issues that my TRC colleagues raised. I will begin with some specific matters relating to the Bill, and move onto comments on policy paper 20, about which most of the previous session was focused.
I have four particular points regarding the Bill, the first of which concerns the ESA membership. I stress that this is about membership of the ESA, not the similar issue of membership of the ownership body, which is a point that I will come to shortly. We note the TRC’s strongly held view that it ought to have guaranteed membership of the ESA. However, as I explained in the submission, that is not feasible for three reasons.
First, the policy is that employment arrangements for the ESA membership will reflect the merit principle, and no organisation will be given automatic membership rights. Secondly, the TRC suggestion is based on a perception that the ESA will succeed education and library boards as the owner and managing authority of controlled schools. As members are aware, the intention is that the second Education Bill will remove both those functions from the ESA; therefore, it is difficult to see a rationale for giving the TRC ongoing membership rights for the ESA on the basis of two functions that are temporary and short term.
Thirdly — and this is the main issue that has been discussed a number of times — the provisions that would give the TRC membership rights are likely to be outside the legislative competence of the Assembly, as defined by section 6 of the Northern Ireland Act 1998.
The second issue about the Bill is that of committees and local structure. TRC colleagues touched on the matter at the end of their presentation. Like other stakeholders and members of this Committee, they would like to see more information and more detail about what the committee and local structures of the ESA will be. We owe the Committee a paper on that, and that is being prepared.
The Minister wants to take the Committee’s views on the detail of what the committee and local structure of the ESA will be. She does not see the need to specify those matters on the face of the Bill, but will be very interested in the Committee’s views as to what the detailed arrangements would be.
We fully agree with what the TRC has said on the need for training, advice and support for governors. That is we propose to make it a statutory duty in the Bill that the ESA should provide, or should secure the provision of, such training, advice and support. That is clearly vital for the role of governors.
Finally, we agree entirely with what our TRC colleagues said about the issue of the religious education curriculum in the Bill. It is extremely important that schools receive the advice and support that they need on every subject on the curriculum, including religious education. We will expect the ESA to address that matter seriously.
We also welcome the positive comments from the TRC on the inspection process. We understand its reservations about how that process is operated in practice, but we welcome those comments on the nature of education, which has been rightly described as a very important means of contributing towards raising standards. Again, we want to give serious consideration to the concerns that have been raised about how inspection operates on the ground. I will certainly pass those comments to inspectorate colleagues.
I will now address the issues that were raised about policy paper 20. The key issue that was raised by TRC colleagues is the ownership of controlled schools, and related matters. The TRC has argued strongly that it ought to have guaranteed membership of the ownership body. It has based its arguments on the historical agreements, its views on equality, and on the fact that the population served by controlled schools is predominantly Protestant.
We understand all the arguments, which the TRC has put to us cogently and consistently throughout the process. We appreciate the very obvious strength of feeling and sincerity with which those arguments have been made. However, those arguments does not change the fundamental legal position, which is that although TRC membership of the ownership body is possible, and would indeed be welcomed, it cannot be guaranteed in legislation. That is because the Assembly simply cannot legislate in the way that the TRC has suggested. It would amount to discrimination.
The Department is acutely aware of the legal position, the constraints that it places upon us, and the very real concerns that arise as a result of that on the part of stakeholders and Committee members. That is why our efforts have focused on underpinning the role of the TRC, not on the ownership body, but on the representative body, where, because it will not be a legislative body, there will be fewer constraints and a much greater potential for us to ensure that the TRC has a significant role.
It is in that context that we responded to the TRC’s request for guaranteed membership of the ownership body. It is not just that that is not feasible; it is not important and it is not necessary. Ownership is not the real prize; a role on the representative body is the real prize. To a number of sectors, ownership of physical assets is regarded as very important. However, it will not convey any advantage or disadvantage to any school or sector. By contrast, the roles and functions that the TRC considers important — and described this morning as being important — and those that it wishes to exercise and be involved in, will be assigned to the representative body. Therefore, the provision of a voice for the sector; the defining and the fostering of the ethos of the sector; the contributing to the development of education policy and; perhaps most significantly of all, taking part in area planning, are roles that we see falling to the representative body and not to the ownership body.
Having considered the responses to the consultation on policy paper 20, the Minister feels more strongly than ever that, where possible, sectoral functions need to be very closely linked to sectoral ethos. As a consequence, we feel that the role of the representative body should be given priority, and that the role of the ownership body should be narrow and technical — more narrow than we suggested in policy paper 20 — and limited to the stewardship of publicly-owned assets and only that. The important role — what the TRC described to me as the power and the influence — ought to be with the representative body, on which the TRC will be present.
In today’s submission, I acknowledge that one particular function — the role of the submitting authority — presents us with a challenge in relation to the controlled sector. Creativity is called for if that role is to fit within the logic that I have just described. The reason for the establishment of the submitting authority role is to ensure that sectoral ethos is reflected in governance and employment arrangements. That is something that all sectors have told us is very important to them. For most sectors, there is a relatively straightforward technical solution. The submitting authority role can be assigned to the owners or trustees of the schools, because they happen to be the custodians of the sectoral ethos. However, for the controlled sector, things are not that straightforward, and that arrangement may not work or prove to be satisfactory. That is because the representative body, not the ownership body, will develop and foster the ethos.
We have outlined two options that might help overcome that. The first is to place the submitting authority role directly with the boards of governors, most of which will, of course, include TRC governors. The second is to place a requirement on the ownership body — if it has a submitting authority role — to consult and involve the representative body. In either case, the aim is for the representative body to be placed in a position to provide leadership and direction over the submitting authority role. The intention behind all the arrangements, and behind both options, is to place the controlled sector in the same position as other sectors, with governance and employment arrangements that reflect the ethos of the sector as developed by a genuinely representative body.
The constraints of the current law mean that the route to be followed in order to achieve that is clearly not the route that the TRC, and perhaps many Committee members, would wish to follow. Nevertheless, it is our contention that the end result will be the same, and will give the controlled sector something that it does not have today — a clear ethos that is recognised, celebrated and reflected in administrative arrangements.
I will pause at that point, because I am sure that members want to ask one or two questions.
The Chairperson:
I am somewhat perturbed by the comment that the ownership arrangements do not give the maintained sector some degree of preference over and above any other sector. The representatives of the TRC have a contrary view.
On the issue of ownership and representation, in the briefing paper, you state that:
“it is not feasible to continue with or replicate the current ownership arrangements.”
On the one hand, you are saying that is not really a big issue. Yet, on the other hand, you are saying that the arrangements cannot be replicated. Therefore, we have a mess that clearly needs to be resolved in order for other sectors not to feel like they have been left out in the cold.
In your submission, you talk about the general functions and duties of the ESA and the fact that the Minister does not want to be prescriptive by putting a lot of structures on the face of the Bill. You also stated that a load of those organisations will be in existence within the footprint of the existing organisations. In addition, you said that that will change significantly in the following years. Therefore, there will be further change as the ESA evolves.
We are being told that the reason we are starting from here is because it has to be right. You also state that it is important that the legislation is not unduly prescriptive and that it provides the flexibility for the ESA to transform services in a way that is sensitive and responsive to local needs. However, the Department, in bringing this process to where it is to date, has not been sensitive or responsive to the needs that have been expressed. Therefore, how can people have any confidence in the ESA, if it is not sensitive and responsive to local needs? A prime example of that unresponsiveness is that, six months into the process, the controlled sector has not had one issue addressed.
No sectoral body has been set up, no subgroup of the six to eight people has been established, and no business case for the controlled sector has been made. Pen has not been put to paper to prepare a business case. Yet, the other sectors — the maintained sector, the Irish-medium sector, and the integrated sector — all have business cases. What about the controlled sector? It has not even got a look in.
When is the Department going to take seriously this issue and start to put something of substance in place? We do not want to hear phrases such as “we appreciate”, “we understand”, “we have a concern”, “we know”, and then to be told that we cannot have something put in legislation.
We do not accept that you cannot put something in legislation. Other things have been put in legislation, because people have said that, politically, it must be done. Politically, this will be done; it will be in legislation. Our concern is that there seems to be more and more problems. There is no equality.
Mr Stewart:
You made a number of significant points. I will deal with your last point about legislation first. Of course it is not for me, as an official, to say to any politician what is politically possible; rather, my role is, merely, to explain the legislative framework within which we currently operate. If politicians decide to change that framework, of course, that is what will happen; however, until that happens, the legislation is what it is. That is defined by section 6 of the Northern Ireland Act 1998, which is an extremely blunt instrument. Quite simply, it says that the Assembly cannot legislate in any way that would be discriminatory. That is that reality of the situation that we face, and that is why we cannot give the TRC guaranteed membership rights on any public authority.
Previously, Mr McCausland asked what would be required to change that situation. There would have to be an amendment to section 6 of the Northern Ireland Act 1998. That is an excepted and cross-cutting matter, so it would require a decision by the Executive and the consent of the Secretary of State to do so. If that were to happen, section 6 could be changed.
The Chairperson:
Or, there could be an agreement to maintain a cohort of education and library boards, and therefore, the ownership issue would automatically be dealt with. That would not affect section 6 of the Northern Ireland Act 1998.
Mr Stewart:
That is right. Section 6 would have no bearing on such an arrangement, because it would not involve new legislation. That solution would be technically feasible.
I shall return to some of the other points that were raised. With respect to the lack of progress on a number of issues in the controlled sector to which you rightly pointed, I will not fall into the trap of offering you platitudinous answers. We recognise that the Department needs to put a bit more resource into that area than it has been able to do heretofore, and it will do so.
Alongside that, I ask to Committee to recognise the difficulty and complexity of taking forward such an exercise in a sector in which there is no tradition of operating in that way. It is a foreign concept to many in the controlled sector. In my discussions and conversations with folk in the sector to date, there has been an initial wariness and concern. However, that has usually been followed quickly by growing enthusiasm when they recognise the opportunity for the sector to achieve parity of esteem and to operate — perhaps more so than it was able to do in the past — in a way that is much closer to the way in which other sectors operate. However, for a sector of that size, complexity and diversity, it will take time.
I was struck by what colleagues from the Council for Catholic Maintained Schools (CCMS) said to the Committee — on a number of occasions, they have said the same thing to me — about the difficulties that the maintained sector faced in the early days when the CCMS was established as the sectoral body. It took a number of years before there was widespread acceptance of its role, until it had sufficiently matured and developed to the point at which it enjoyed the confidence of the maintained sector. It took a great deal of effort to get there.
Lest members fear, I am not offering that as an excuse for us taking years to do anything in the controlled sector. That would be unacceptable. We must get arrangements in place and up and running as quickly as possible, alongside those in the other sectors. However, it may take time before those arrangements mature and develop sufficiently enough to operate at the same capacity as those in other sectors.
I turn now to the matter of perceived advantages that stem from ownership. I entirely accept that that is something about which many sectors and stakeholders feel strongly. However, we contend that the arrangements that we put forward in the Education Bill do not allow for advantages stemming from ownership. Ownership is not associated with being an employer or with having a statutory authority. Ownership does not give any sector or school a position in area planning that any other sector or school would have. There are simply no practical, on-the-ground advantages associated with ownership. I recognise that the perception is to the contrary, but the reality is as I described it.
With respect to local structures of the ESA, we recognise the concerns and the desire for more detail. However, it remains our view that an attempt to specify those structures in the Bill would be counterproductive. A number of members have emphasised to us — many times — that what works in Belfast may not work in Fermanagh or Derry and that we need locally sensitive solutions to reflect the needs and realities of the communities and schools in those areas. Therefore, any attempt to specify that and all the variations that would be required on the face of a Bill would make it an extremely lengthy, difficult and, ultimately, counterproductive exercise. It would also take away the flexibility that is going to be required over the next few years. The ESA will begin with the footprint of the existing organisations, but no one believes that that is the footprint that the organisation should continue to have — changes will be required.
At present, the full detail of all those changes is not available to anyone. It must be planned, carefully thought through and consulted upon. That will take a period of years. We are simply not in a position to specify that on the face of primary legislation. If we were to attempt to do so, we would do education a disservice.
That was a long, rambling set of answers. Therefore, I will stop at that point. There may be points to which you want to return.
The Chairperson:
The question was long and rambling. I want to pick up on one point, because it contradicts what is stated in the paper. When I asked you about the possibility of a cohort from the education and library boards remaining, you said that that is feasible. However, that is not what it says in your paper. Paragraph 9 states that:
“The Department fully appreciates these concerns. However, it is not feasible to continue with or replicate the current ownership arrangements under the RPA.”
Which is it?
Mr Stewart:
It is technically possible to leave legislation in place as you described. However, it is not an option that the Minister would favour. That is what I meant by the reference in the paper to its not being feasible.
The Chairperson:
Therefore, “it is not feasible” means that the Minister does not agree.
Mr Stewart:
Yes. However, if your question is whether it is technically possible to leave a proportion of the existing organisations in place, then, yes, it would be possible.
The Chairperson:
Michelle will now ask a question, followed by Basil. Sometimes, I get criticised for the order that I take, although I do try. I have a piece of paper in front of me with a list of members who have indicated that they want speak.
Miss McIlveen:
Do not worry, Basil; I will be quick.
Your paper, under the title “Functions and general duty of the ESA”, stated that:
“The Department recognises that the majority of children who attend controlled schools have a Protestant community background. It is recognised that the ethos of most controlled schools, and the controlled sector generally, has a significant Christian Protestant dimension. Equally, the Department agrees with the TRC that the controlled sector ethos must be based on inclusivity, the recognition of diversity, and the promotion of equality.”
That last sentence concerns me, because it gives the Department the opportunity, perhaps, to dilute the Protestant/Christian ethos in an attempt to achieve diversity, equality, and so on. Given that that is expected of the controlled sector, I want to know whether the Department will give guidance to the Catholic sector that it must also achieve those aims.
Mr Stewart:
Of course we would. Requirements of law and policy would apply equally to any grant-aided school. Let me reassure you that there will be no attempt by the Department or the ESA to artificially engineer the ethos of individually controlled schools or the controlled sector. The paper recognises that the ethos of the controlled sector reflects the choices that parents have made for generations to send their children to particular schools or schools that have a particular ethos.
Therefore, as we said previously, neither ethos, nor its definition, are in the Department’s gift. Ethos is chosen by schools, sectors or communities, and the Department recognises that. We suggest that the controlled sector — much more so than has been the case in the past — needs to feel empowered and to have its ethos recognised and celebrated in a way that has not, perhaps, been the case in the past. It may have felt that it was required to behave in a way that was almost in denial of its ethos; as though it were a secular sector without a strong Protestant/Christian tradition. We are saying that that is not the case. Its ethos exists and ought to be recognised and celebrated.
Miss McIlveen:
I am concerned that that response allows the opportunity to skew a school’s ethos in order to meet the demands of a minority in that school, whereas that is not necessarily the case in the Catholic sector.
Mr Stewart:
We hope that any grant-aided school would attempt, both in its ethos and daily operation, to meet the needs of all children in the school from the background or ethos to which they subscribe.
Miss McIlveen:
My point is made, thanks.
Mr B McCrea:
Perhaps, I will make it again. There seems to be an issue about how equality legislation is brought forward. Certainly, you will have heard, when we talked to other colleagues, that they believe that equality legislation or aims and ethos are, in some way, being used against them. What applies to one sector does not necessarily apply to another. It seems that, once again, we have got ourselves in mess.
On the issue of equality, the question is about whether we are going to have a series of representative structures, each of which is internally consistent in the whole, or whether there will be some overarching approach to equality. It appears to me that there is a mismatch ― we use the overarching role sometimes, and the sectoral role at other times. We need clarity on that.
I understand the argument, Chris, because you made it to me months ago, about not getting concerned about the ownership because all the powers lie elsewhere. However, I am really surprised that you have been unable to convince colleagues in the TRC or others that that is the case. There is a fundamental concern and perception about the issue of ownership. I suspect that part of the problem, if you heard the submission from the representatives of the TRC, is that when schools were originally transferred, there were certain expectations. However, over time, and for all sorts of good reasons ― for example, changes of funding arrangements or whatever; we all know the history ― we have ended up in a situation whereby what was intended is now almost the opposite of what has been achieved.
I do not know how we address those concerns without putting it down in very detailed legislation. I understand that there would then be the difficultly that that legislation would have to be amended if it did not work out. However, there is a genuine concern, and it comes down to what you said in your paper that:
“This will change significantly in the following years as the organisation transforms its functions and services.”
It is fundamental to our overall concern ― and I have expressed this to you before ― that there is an idea that we will simply get to a point in time when that is acceptable, and then it can be left open to regulation, ministerial direction, and so on for the next stage of development. That is unacceptable. If that were the case, people will have decisions imposed on them that are, frankly, not what they want. In a democratic society, that is a failing.
I know that it will require a lot of drafting, and I know that it is difficult, but what we want to achieve must be put down in black and white. We need help from you on that issue.
Mr Stewart:
I would not worry about the drafting — officials love drafting in detail; that is our daily bread. It is not for me to determine the appropriate approach to legislation; that is up to the legislators ― yourselves and the Assembly. If the Assembly decides that more details and more prescription in legislation are required, that is what will follow. We, as officials, will respond to what Ministers, the Executive and the Assembly tell us we must do.
The issue of equality legislation is, perhaps, narrower and more acutely focused than is sometimes perceived. As was mentioned earlier, a great deal of equality legislation does not apply in the field of education. The issue here is purely section 6 of the Northern Ireland Act 1998 and the Assembly’s legislative competence.
The TRC argued clearly and cogently about the role that it wishes to play in education, the historical reasons for it and what it is trying to achieve. They suggested what, to them, is the most straightforward route to achieve that, which is a continuation of the current arrangements, whereby they have membership of the relevant statutory authorities. The difficulty that we face ― and it is a purely technical difficultly ― is that it is simply not possible to do that in Assembly legislation. Therefore, we have a template to find alternative solutions to achieve the same outcome.
I fully accept that those proposed solutions are complex, inelegant and much less straightforward than what the TRC is seeking. Nevertheless, they are a genuine attempt to achieve the same outcome by a different route, because the route that the TRC would prefer is simply not open to me.
Mr B McCrea:
I understand your constraints. However, we are in a political environment, and if, heaven forbid, you should find yourself on ‘The Stephen Nolan Show’ having to try to explain to the people out there that this is what the Catholic Church gets, and this is what the Protestant Churches gets, and the Protestant Churches say that they are unhappy, and we are trying to move on with a shared future and equality and all the rest, it is just not sellable.
We have to go on and do that. I understand your argument, and I appreciate your clarification. However, if the Executive make a decision with the support of the Secretary of State — and I am sure that he will not withhold his support — and we get that fixed, we will not have a technical problem. Everyone should be much happier.
I note the Chairperson’s remarks about an alternative method. He was quite eloquent, and I note where he is going in relation to that. That is a solution, and a solution must be found. It would not do this place a disservice if the Executive agreed to amend the Northern Ireland Act 1998 to get the situation changed. Then we could move this process on.
Mr Stewart:
I shall await the outcome of any political engagements and hope that the invitation to the ‘Nolan Show’ does not appear in the meantime. [Laughter.]
Mr B McCrea:
I have his number.
Mr D Bradley:
You seem to be giving comfort to the TRC through the representative body, and, as it were, steering it in that direction. I know that it is not your role as an official to set the steer for anyone. In any case, that was the flavour of what you were saying. For example, you said that they could have more input into area planning, more sectoral functions and more influence over ethos. Nevertheless, such a representative body would have no statutory basis. Therefore the TRC, although it may have the opportunity to discuss such matters, has no guarantee that its advice or its proposals would be taken on board by the ESA or the Department.
Mr Stewart:
That is correct; the same would be true of any sectoral body in any sector. One of the things that the Committee impressed upon us very strongly was its feeling that none of the sectoral bodies should be statutory or have any statutory functions.
Mr D Bradley:
That is true, but you admitted in your paper that the arrangements for other sectors cannot be replicated in the controlled sector. To some extent, therefore, we are trying to redress the balance. One of your suggestions seemed to be that the representative body would go some way to doing that; however, if it has no power, there is no guarantee that it will redress the balance.
Mr Stewart:
It cannot offer the guarantee that legislation would offer; that is correct, but that is the same for any sectoral body in any sector. Our TRC colleagues were asked what they needed or would like to see in the legislation about the links between an ownership body and a representative body — something beyond consultation, because there is no confidence that consultation would be sufficiently robust. I cannot offer a solution to that today, but it strikes me as an interesting question and one that I would want to pursue with the lawyers. Can we go beyond consultation in legislation but stop short of creating a statutory body with statutory functions? I do not know the answer and I do not whether we would find anything productive in it, but it is worth exploring.
Mr D Bradley:
One of your possible solutions was to place a statutory obligation on the ownership body to consult. Is there more room for development there?
Mr Stewart:
I would want to explore that to see whether there is. It would be reasonably straightforward to have a statutory duty to consult, but, as our TRC colleagues said, they did not place much confidence or faith in mere consultations. We would want to see whether we could strengthen that a little bit. I do not know whether we can, but it is definitely worth looking at.
Mr D Bradley:
If section 6 of the Northern Ireland Act 1998 were to be amended, would it be possible to do so in such a way as it applied to this particular situation only?
Mr Stewart:
I would have to consult the lawyers on that, but I see no reason why not.
Mr D Bradley:
The Chairperson mentioned another solution, which was to leave a cohort of education and library boards in place. If that were to be the solution, what shape would it take?
Mr Stewart:
In order to avoid the difficulty of section 6 of the Northern Ireland Act 1998, it would have to be based on leaving the existing legislative provisions intact, or as many of them as necessary, to leave the boards in existence, but with only the functions of owning the physical assets of the controlled sector. All the remaining functions would transfer to the ESA.
As I said, the Minister is not convinced that that is an appropriate approach as it runs contrary to the thrust of the policy and what the Department is trying to achieve through the ESA. Of course, on a more practical level, it does mean leaving five organisations in place, albeit with much reduced responsibilities. However, even organisations with reduced responsibilities require chief executives and directors of finance and all the administrative paraphernalia that goes along with that. In the short term, it would make it extremely difficult to achieve the administrative savings and reprioritisation of resources that the Department wants to achieve in the RPA.
Mr D Bradley:
Therefore it would be a messy solution.
Mr Stewart:
It would be messy, difficult and contrary to policy; however, it would avoid the difficultly of section 6.
The Chairperson:
Has the Minister given any consideration to that in light of section 75?
Mr Stewart:
I am sorry, but I am not quite with you on the link between that and section 75.
The Chairperson:
Has the Minister made a judgement or assessed the possibility of doing so against other equality legislation?
Mr Stewart:
Not specifically. Off the top of my head I do not see a particular conflict with section 75. Boards are public authorities; they are subject to section 75 and will continue to be so. The legislation that establishes boards and governs their membership would remain intact and would not be affected by section 75.
Mr O’Dowd:
If it is appropriate, I would like to ask the Chairperson a question. I am trying to ensure that I am not listening to a debate based on the principle of “they have it; therefore we want it”. We must avoid the common mistake of not considering what it is they have and why we want it.
The Chairperson said in his questioning of Chris Stewart that the Catholic Church has an advantage because it has an ownership body. What is that advantage or perceived advantage? What advantage does the Catholic Church receive from having an ownership body?
The Chairperson:
The advantage is that the trustees become one and the same thing with respect to representation. The trustees are the body that represents Catholic schools, as we saw in St Comgall’s and other schools. It is they who make the decisions, and that gives them power and authority.
In their submission to the Committee the Catholic bishops said that ownership was secondary to ethos. The bishops were very concerned about the single employing authority, as they believe that it will affect ethos. By and large, it is the trustees who take the decisions in the day-to-day running of schools.
Mr O’Dowd:
I am not sure that I agree with that analysis; however, I want to think it through.
The day-to-day operational procedures of any school are carried out by its board of governors. Therefore, as the transferors — quite rightly from their point of view — want to protect the Christian Protestant ethos of their schools, the key place for them to be is on the boards of governors, where that right has been protected. The Department is also trying to ensure the transferors’ representation on the representative body, thus ensuring that the Protestant Christian ethos flows from that body into those schools.
The Committee may be getting itself into a tangle over the ownership body, and that may not be the right argument from anyone’s point of view. It is ethos that should be protected in schools, whether in the Catholic or Protestant sectors or in the Governing Bodies Association (GBA). Boards of governors protect ethos, and we must ensure that it is protected on a statutory basis through the representative body.
I am sorry, Chris, I have no questions for you — [Laughter.]
Although the Committee criticises the Department for not working on the representative bodies for the controlled sector, it is worth noting that we spend only two hours a week considering the Bill, which is the most fundamental change to the education system in the past 35 years. We are lagging behind, too.
Mr Stewart:
I try to do a couple of hours myself, John. I agree that we must ensure that we understand the importance of ownership. Colleagues from the Catholic education sector regard ownership of physical assets as important; however, they regard ownership and influence over the enterprise that takes place in the physical assets as much more important. That is about ethos and the day-to-day operation and management of schools; it is also about ensuring that schools can operate collectively and coherently in the family of Catholic education.
We have listened carefully to that argument, and we have listened to similar arguments from the TRC and others in the controlled sector. We feel that, as you rightly said, we should do that through the representative body and its role, particularly around ethos. It should not be a window-dressing role in any sense; it must be real and practical and must give all those in the controlled sector a clear sense that it adds value and makes a difference. The Department feels that that can be achieved, but not necessarily through ownership. I was intrigued to hear TRC colleagues describe the controlled sector as weak; however, that body has a hand on ownership arrangements. Therefore ownership has not provided a solution to difficulties and problems in the controlled sector.
Mr McCausland:
There is a big difference between having a hand on ownership and having it in your hands. The trustees have it in their hands and hold it; those in the controlled sector have a hand on it but do not have total influence. Ultimately, the transferors are a small element on the boards, and the direction that we intend to take could reduce that influence. John O’Dowd mentioned ownership. The trustees and the bishops made the point that several controlled schools have become integrated schools and ceased to be ordinary controlled schools: not a single maintained school has made such a move, and the Committee has been told that that will not happen. Therefore, the situations are different.
Ownership has an effect in several ways. Some years ago, a proposal was submitted to the education and library boards to enter a joint declaration of protection with the trades unions, and the boards were asked to sign up to it for all the people that we employed. At the time, I made the point that that we were signing up to this for the people that we employ as ancillary staff in maintained schools, yet we have no control over the building because it is owned by the trustees. Ownership is much more significant than one might imagine.
Chris will be glad to know that I have several questions for him. You said that section 6 of the Northern Ireland Act 1998 is purely a technical difficulty and that there are perhaps more complex, less clear-cut ways of achieving the same end. However, even though the alternatives may go some way towards the same end, they do not achieve it. A complex and complicated change that does not deliver the necessary end is pointless; a simple amendment to section 6 would be much better. As was mentioned earlier, the Equality Commission is meant to be reflective of the community of Northern Ireland. Is there anything to prevent the membership of the ESA being required to be reflective of the community of Northern Ireland?
Mr Stewart:
Not that I am aware of. I thought that you were referring to the Human Rights Commission rather than the Equality Commission. They might be similar.
Mr McCausland:
It applies to both, but certainly to the Equality Commission.
Mr Stewart:
That is, of course, Westminster rather than Assembly legislation. On the face of it — again with a caveat that I will consult the lawyers — such a requirement should not cause difficulties with section 6. However, it would not provide what the TRC wants.
Mr McCausland:
I agree, but it is an important principle. Is there anything to prevent a statutory body from being set up whose membership reflects the community that it serves?
Mr Stewart:
No; I do not think that there is.
Mr McCausland:
Therefore you can have a body that is the ownership of the controlled schools that reflects the community that attends controlled schools.
Mr Stewart:
I am sorry; I may have misunderstood the first part of your question. It would have to be representative of the community — the whole community in Northern Ireland.
Mr McCausland:
Must any body that we set up reflect the whole community in Northern Ireland, even though it is for a special interest?
Mr Stewart:
A requirement to be reflective of the entire community would not call into operation section 6. A requirement to reflect any particular section or sections —
Mr McCausland:
We are not saying a particular section. We are saying that the composition of the community of children who attend controlled schools should be reflected in the body that owns those schools.
Mr Stewart:
That suggestion would have to be considered by the lawyers. However, such an approach does not offer what the Transferor Representatives’ Council is looking for.
Mr McCausland:
I appreciate that, but it is important in itself. Would you look into that?
Mr Stewart:
Yes. However, rather than speculate unhelpfully, I will test it with the lawyers.
Mr McCausland:
I gather that the advertisement has been placed in the newspapers for a chairperson of the ESA. How can that be when we do not even know the composition of the board that he or she will chair? We do not know anything; we have no legislation. We do not even have agreement, yet we are advertising for a chairperson for a non-existent body, the composition of which is as yet undetermined — we debated that this morning. Why would that happen?
Mr Stewart:
It is necessary and important for the Department to take the preparatory steps to meet the deadline that the Executive has agreed for the establishment of the ESA,
Mr McCausland:
Which is?
Mr Stewart:
The first of January 2010. We have to operate within the framework of policy and legislation as agreed by the Executive. Things may change or be changed by the Assembly; if they do, we will respond, but at present officials are bound to accept the Executive’s decision.
Mr McCausland:
There has been a change; we have extended the period of consideration of the Committee Stage of the first Bill to the end of September, and, after that, we have to consider a second Bill. Is it not presumptuous to go ahead and ignore that?
Mr Stewart:
It may be a matter of opinion whether it is presumptuous. The normal convention in these matters is that one does not take a step such as appointing a chairperson or members of an organisation in advance of the Second Stage of a Bill. However, having reached the Second Stage successfully, it is the settled will of the Assembly that there will be an ESA and that there will be legislation. It is not presumptuous or inappropriate for us to prepare for implementation on the basis of the decision that the Assembly has taken.
Mr McCausland:
At what point will you start to advertise for members?
Mr Stewart:
That could follow fairly quickly.
Mr McCausland:
Even though there is still a great deal that we do not know about it?
The point that I am trying to make is that this sends out totally the wrong signal. It gives a sense of a Department that wants to ram everything through by force, come what may. As John O’Dowd said earlier, this is one of the biggest issues to face the Committee, the Assembly and our society for a very long time, because education is so fundamental. That is reflected in the strength of feeling and the passion of all the sectors that attend the Committee.
We used the word consensus and talked about trying to reach accommodation. Is rushing ahead pre-emptively the best way to go about it?
Mr Stewart:
We do not see it as rushing ahead or as being pre-emptive.
Mr McCausland:
Others might.
Mr Stewart:
I accept that. However, I am sure that you accept that there will be an organisation and it ought to have a chairperson; therefore, it seems a reasonable step for us to take. When it comes to appointing members, we will have to make a judgement. If there was an emerging consensus that the number of members ought not to be as specified in the Bill — if that is the way the political wind is blowing — that might affect the Department’s timing.
However, that is not the case at present. The Bill says what it says about the number of members, and until — or unless — the Assembly and the Executive tell us otherwise, we will proceed on that basis.
Mr Elliott:
I wish to refer to your paper on ownership and representation. Paragraph 10 states:
“In the case of Catholic education, the ownership and representative functions will both reside with the Catholic trustees. This cannot be replicated exactly for the controlled sector. However, the Department wishes the TRC to continue to be a leading voice in the controlled sector, and for the TRC’s role, where possible, to reflect that of the trustees.”
The problem is that it cannot do so under the provisions of the Bill. What is the difference between the Catholic role, as outlined in paragraph 10 and the second option in paragraph 19, where it states that the roles of submitting authority and the ownership body are basically the same? What is the difference between those roles? Why can you not find a way around putting the TRC onto that?
Mr Stewart:
The way around it would be the oft-discussed potential for change to section 6 of the Northern Ireland Act 1998. In response to your question, I will pick up on a point that Nelson made. I described it as merely a technical obstacle. That is all that it can be in respect of taking forward legislation or creating a mechanism. What I meant by that — and it is borne out by the parts of the paper that you quoted — is that there is no policy objection to the TRC’s playing a significant role in the controlled sector — far from it. We value the role that they play, and we want to find a way for them to continue to play that role.
Mr Elliott:
Do you accept that you cannot do that under the current proposals?
Mr Stewart:
I accept that there is a technical obstruction to their doing so in the way that you and they wish. In describing it as merely a technical obstruction, I should make the important point that changing section 6 is merely a technical matter for me; however, it is a more significant political matter for Committee members and the Executive. I will leave that thought with you.
In respect of the differences between the roles, it is our contention that there would be little difference in the practical operation. However, there would be some difference, because in one sector two sets of functions would reside in one place, and in another sector they would be split into two places. However, in respect of how they would operate, we can get close to the point where there is no practical or real difference between them. Crucially, we can ensure that the TRC plays a leading role in the functions that it tells us are the most important.
Mr Elliott:
How will they do that? They will not be on the body as of right.
Mr Stewart:
They can be on the representative body as of right, because it will not be enshrined in legislation. It does not attract the restrictions of section 6, so there is no reason why the TRC cannot be given guaranteed membership of the representative body.
Mr Elliott:
However, you cannot tie that up with the ownership body.
Mr Stewart:
No.
Mr Elliott:
According to paragraph 10, Catholics have the right to be given guaranteed membership.
Mr Stewart:
It is not that they have a right to that in legislation; it is that they are de facto the owners of Catholic schools. Therefore, it is not that we have ever passed legislation that has put them in a particular position; they simply own the schools.
Mr Elliott:
Why is the representative body not in legislation? If the representative body was in legislation, they could not perform that role.
Mr Stewart:
We would run into the same problem. The Committee encouraged the Minister to take a policy decision that none of the representative bodies should be statutory.
Mr Elliott:
We need to resolve the issue. If it is not resolved, I will not put up my hand to support it.
Mr Lunn:
Nelson made the point that the appointment of the chairperson could be made fairly soon, which, as you said, could be quickly followed by the advertisement for members of the ESA, even though we do not yet know, frankly, whether there will be an ESA or how many members it might have. You said that it will depend on how the political wind is blowing.
We will not know how many board members are required until the Bill comes before the House; it is not a matter of political wind. You might pick up a vibe that some of us would like to see a bigger board with a different composition; others might be content with it as it is. I can see the rationale for appointing a chairperson quickly, but not for appointing anyone beyond that.
Mr Stewart:
It is an issue of risk management. You are right — I cannot predict what the Assembly might decide when the Bill receives its Consideration Stage. My reference to political wind meant that if there was a resolved Committee view to change the number of members, with which the Minister agreed, we would not ignore that; we would take it into account in our preparations to recruit members.
However, that is not the case. At present, we have to proceed with the timetable, policy and legislation that the Executive and Assembly have set for us. That means that we need to get certain things under way now.
Mr Lunn:
Looking for a resolved Committee view followed by the agreement of the Minister is reaching for the stars.
Mr Stewart:
You have to admire my faith. [Laughter.]
Mr Lunn:
I want to go back to section 6 of the Northern Ireland Act 1998, because I have never come across it before. Paragraph 5 of your submission states that:
“Provisions giving the TRC membership rights are likely to be outside the legislative competence of the Assembly, as defined by section 6 of the N.I. Act 1998.”
Why does it not say “are outside”? Why does it say “likely”? Is there some doubt about it?
Mr Stewart:
There is no doubt in my mind. It is typical Civil Service reticence and caution in using language. They are not formally outside the legislative competence of the Assembly until we attempt to introduce them, and the Speaker says no. At that point, they would be formally outside the legislative competence of the Assembly. I have no doubt that it would not be possible to take forward such a provision.
Mr Lunn:
How does section 6 exclude our right to give the TRC membership rights but allow us to give local councillors automatic membership rights?
Mr Stewart:
Section 6 does not permit legislation that discriminates on grounds of religious or political opinion. Specifying or reserving seats for local councillors might be described as discriminating on the grounds of political status, as opposed to political opinion. That is not unlawful.
Mr Lunn:
The word “technical” has been used a great deal, and it is technical stuff.
Mr Stewart:
It is. Section 6 is an extremely blunt instrument; it imposes a significant constraint on what one can do in legislation.
Mr Lunn:
I am encouraged by the notion that it is purely technical and not a sinister doctrinal reason for excluding a certain body of people.
Mr Stewart:
There is no policy intention to exclude the TRC. However, as a caveat, let me say that in describing it as a technical problem, I do not want to underestimate the political significance of any change to section 6, which could be profound.
Mr Lunn:
The first few lines of your paper show that you would encourage the TRC to nominate individuals to the ESA.
Mr Stewart:
That is correct. Everyone wants to see the TRC play a leading role, not only on the representative body but on the ownership body. The contribution that the TRC has made and continues to make, and its historical association and strong affinity with the controlled sector, makes its representatives ideal members of the ownership body.
Mr Lunn:
There seems to be so much common ground that it would be amazing if we could not find a way round it. Tom and Basil have put down strong markers, and I completely agree with them. We have to sort it out. Legislators and lawyers will know more about section 6 than I do, but it does not seem to be insuperable. We cannot blame section 6.
Mr Stewart:
You say “blame”; I say recognise. There is a great deal of common ground in wanting to accommodate the role that the TRC wishes to play; however, we face difficulties in doing that. We were challenged to be creative. The Civil Service in general and the Department of Education in particular have not always enjoyed a reputation with the Committee for creativity, but we will do our best to come up with solutions to this difficulty.
The Chairperson:
In conclusion, Chris, I thought that the Minister was considering the composition of the board; is that the case?
Mr Stewart:
I have put members’ points to her, but, as yet, she has not indicated any change.
The Chairperson:
During our exchanges you referred to the need for legal opinion. May I take it that the Department will come back to the Committee as soon as possible on those issues?
The Chairperson:
Yes; it will.
Miss McIlveen:
For members’ information, the appointment of the chair of the ESA is confirmed from September 09. No academic qualification is required for the three-days-a-week, £33,000 a year plus travel and subsistence allowances post; therefore, it is pretty well paid.
The Chairperson:
There will be resignations from the Education Committee and applications for that position.
Mr O’Dowd:
The salary is £7,000 less than the Health Minister gave the head of his board.
The Chairperson:
Thank you very much, Chris.