COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
27 May 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
Mr John O’Dowd
Mrs Michelle O’Neill
Witnesses:
Mr Chris Stewart (Department of Education)
The Chairperson (Mr Storey):
The Committee agreed at last week’s meeting to look in some detail at clauses 1 and 2 of the Education Bill, which deal with the creation of the education and skills authority (ESA), its functions, and the general duty of schedule 1, which deals with the ESA membership committee arrangements. We had also intended to consider clauses 3 to 12; however, after speaking to the Committee Clerk this morning I felt that we were trying to cram too much into too short a time. Unfortunately, the members of one of the parties are not present, which puts us in a slightly difficult position. Nevertheless, we should consider clauses 1 and 2 and schedule 1.
At last week’s meeting we amended and approved a letter to the Minister regarding the Committee’s concerns and outstanding requests for information. In that letter the Committee made it clear that its preferred course of action is to reach agreement with the Minister and her officials on any amendments to the Education Bill. The letter also stressed the Committee’s urgent need to receive some of the information that is still outstanding, and we will await any papers in that regard.
In fairness to the Minister and the Department, it would be worthwhile for the Committee to know whether the Department is to propose any amendments on which we can agree and work together. We still have no indication whether those will be made available to us by next week, but we are working towards that.
Members and education stakeholders have expressed their concerns during our evidence sessions, and we have also had the benefit of a response by departmental officials to those concerns. However, I remind members that there is no guarantee that the Minister will propose amendments that address members’ concerns.
The Committee should urgently consider the Bill and arrive at decisions on amendments. Given that the Committee has only five scheduled meetings before the summer recess, it is imperative that we commence our scrutiny; members should consider the provisions of each clause and express their views on what amendments, if any, they support. Members may want to suggest amendments as proposed changes in principle, rewording or additional wording. Moreover, members should consider what further information and clarification are required from the Department or stakeholders to satisfy our concerns.
The Committee’s objective in today’s session and in further clause-by-clause sessions is to arrive at as clear a position as possible; that will allow the Committee to communicate its clear view to the Department and the Minister on appropriate amendments. If the Department and the Minister do not agree with the Committee, we will have to decide whether to pursue our own amendments. Having a clear view on those issues will allow us to draw up our own amendments for consideration.
I am sure that all members have brought a copy of the Bill; if not, they will be marked down. Furthermore, I draw members’ attention to the spreadsheet that John, Alyn and their staff have prepared for us. Given the raft of information from oral sessions during the past weeks, I want to place on record the Committee’s appreciation of their work in creating a coherent document that we can follow logically.
Members should mark clause 1, “The Education and Skills Authority”, into their books — this is like a classroom — and return to schedule 1. I refer members to paragraphs 2(1)(b), 2(2)(a) and 2(2)(b) of schedule 1. The concerns about the membership of the ESA are outlined on page 1 of the table that is attached to the Committee’s letter to the Minister of the 20 May. Are members content to continue in this format?
Members indicated assent.
The Chairperson:
Clause 1(1) states:
“There shall be a body corporate known as the Education and Skills Authority (referred to in this Act as “ESA”).”
It would be useful to go through each line of schedule 1. I suspect that paragraphs 5 and 10 are standard inclusions in any schedule.
Schedule 1(2)(1) states that membership of the ESA shall consist of:
“(a) a Chair, and
(b) not fewer than 7 or more than 11 other members appointed by the Department.”
The Association of Northern Ireland Education and Library Boards (ANIELB) and the Association for Quality Education (AQE) raised issues to which the Department responded thus:
“The Department notes the Association’s comments on the membership of the ESA. This matter has been raised by a number of stakeholders, and the Committee is familiar with the Minister’s position.”
The Department’s response continued:
“The AQE has expressed concern that the ESA will be a highly centralised organisation, and that this will impair its effectiveness in delivering key services. The Department emphasises that the ESA will be a single organisation, but with a strong and significant local presence. Back office functions will be centralised in the interests of efficiency and effectiveness. However, the main role of the ESA will be to provide front-line support services to schools and other education providers. These services will continue to be provided locally, and this will be the major factor in determining the structure of the organisation at local level.”
The spreadsheet also outlines issues that were raised by the Belfast Education and Library Board (BELB), the Western Education and Library Board (WELB), head teachers and the Northern Ireland Commission for Catholic Education (NICCE).
Is there anything that the Committee feels should be amended or changed? I remind members that we are not taking a decision this morning; I just want to get a sense of members’ views on that element of the Bill.
Mr Lunn:
Although I have not studied the spreadsheet in great detail, it seems that all the witnesses had a problem with the proposed membership of the ESA, as a membership of between eight and 12, including the chairperson, did not seem sufficient to provide the necessary spread of expertise and experience. Some, although not so many, had a problem with the fact that a majority of members must be councillors. I have a problem with that aspect of the ESA’s membership, and I was beginning to think that perhaps I was not the only member to do so.
As you said, Chairman, we are not going to make a decision today. If you asked me what I want, I could not tell you today, but I certainly do not want councillors to comprise the majority of the membership of the ESA. I have no problem with councillors having significant representation on the ESA; someone suggested 40%, which is fine.
Mr D Bradley:
What is the Department’s position on the size of the ESA’s membership?
The Chairperson:
Can we bring Chris Stewart in at this stage?
The Committee Clerk:
That has not been organised. If members wish to bring Chris in —
The Chairperson:
Chris, are you happy to come to the table?
Mr Chris Stewart (Department of Education):
I knew that I would not get a week off, Chairman.
The Chairperson:
We would appreciate it.
Mr Lunn:
I meant to ask whether particular bodies should have representation on the ESA as of right. There is an active lobby to have the Transferor Representatives’ Council (TRC) involved in the membership of the ESA, and I support that.
Mr D Bradley:
What is the Department’s position on the number of members of the ESA?
Mr Stewart:
The Department’s position is that the number of members stipulated in the Bill should stand; however, we made the Minister aware of members’ views. Trevor summed it up neatly: most, if not all, stakeholders who have given evidence to the Committee raised concerns about the number of members of the ESA and whether councillors should comprise the majority of its membership. The Minister is considering her position on those issues but has not yet indicated whether she is minded to make any changes.
Mr D Bradley:
Could the ESA be described as an arm’s-length body of the Department, in the same way as Sport Northern Ireland is an arm’s-length body of the Department of Culture, Arts and Leisure?
Mr Stewart:
I am not familiar enough with the relationship between Sport Northern Ireland and the Department of Culture, Arts and Leisure to say whether that is a good analogy. It is fair to say that it is an arm’s-length body; however, that is not to say that there will not be a strong measure of accountability between the ESA and the Minister. Given the importance of the public service that the ESA will be responsible for and the size of its budget and workforce, it may be an arm’s-length body but it will not be stand-alone.
Mr O’Dowd:
It is our view that there is a democratic imperative that elected members comprise the majority of the membership of the ESA. We remain to be convinced that the number of members of the ESA should be increased; we do not have a firm view about that as yet. Trevor asked whether representative bodies such as the TRC should have a place on the ESA as of right. We do not see the necessity for such a right; in any case, there are legal barriers to such a proposition.
Mr McCausland:
I am not hung up on numbers; I am open to persuasion on the issue. However, the notion that any particular group should have automatic representation on the ESA is an equality issue. If one group has automatic membership, others, such as the Catholic bishops, would say that they were entitled to a place as of right. That would lead to the entire membership being appointed, and there would be no open recruitment because no places would be left.
Mr Lunn:
That would depend on how many places there were.
Mr McCausland:
Five or six sectors will seek representation on the ESA, including the Irish-medium lobby, the integrated schools’ movement, the Catholic bishops and the TRC. We would get to a point at which there were only two or three places available to be filled by open recruitment. The role of the TRC and the Protestant Churches is a fundamental issue, but this is not the most appropriate way to address that.
How will the Department ensure that political representation on the ESA, assuming that people are competent to serve on the body, reflects the political reality of Northern Ireland?
Mr Stewart:
Following advice from the Commissioner for Public Appointments, we understand that it is possible for the arrangements to be centralised under the merit principle but to allow for a degree of leeway. It is not a strict requirement to appoint members on nothing but merit; that is to allow a balance to be struck on gender, geographical and political representation. However, we cannot have an overt mechanism such as d’Hondt in the arrangements, with the explicit intention of achieving a political balance. That, ironically, would be unlawful.
Mr McCausland:
I have some concerns because that would depend on the goodwill of the person making the appointments — the Minister.
Mr Stewart:
Yes; it would be the Minister.
Mr McCausland:
After all, a Minister might not have the full confidence of the entire Assembly.
Mr Stewart:
I do not think it appropriate for an official to comment on that in relation to any Minister. With respect, I will decline to do so.
Mr McCausland:
I am only speculating that such a situation could exist. I am concerned that there is an understanding that that will be taken into account. The difficulty is that such an appointment process would depend on a trust and goodwill that may not exist.
Mr Stewart:
The Minister is aware that if the arrangements were based solely on the merit principle, the ESA could have an unusual gender, geographical or political membership. The informal advice that we have had, which we will follow up with formal advice from the Commissioner for Public Appointments, is that it is possible to construct appointment arrangements that allow sufficient leeway to manage the process so that we do not have a perverse outcome. There is a difference between that and including overt mechanisms to achieve a particular political or gender balance.
Mr McCausland:
You talk about perverse outcomes and outcomes that are not perverse. Would that cover party-political as well as broad political opinion? For example, all the unionist representatives could be drawn from one political party to the exclusion of another.
Mr Stewart:
I will answer that generally. The Minister is aware of the difficulty that would be caused if any particular composition of the education and skills authority did not lead to the broadest possible trust and confidence in the organisation in doing its job. However, it is possible, within the arrangements, to mitigate that risk, which is, as I understand it, the Minister’s intention.
Mc McCausland:
What would be required to enable appointments to be made under the d’Hondt mechanism?
Mr Stewart:
At the risk of giving you an answer that you have heard before, it would take a change to section 6 of the Northern Ireland Act 1998. The difficulty is that applying d’Hondt would amount to discrimination on the grounds of political opinion, whereas reserving a number of places for councillors does not; that would be discrimination on political status, which is not unlawful. Discrimination on political opinion is.
You might ask how it is possible to use the d’Hondt mechanism as we do. The answer is that the d’Hondt mechanism is in Westminster legislation, which is not bound by section 6 as the Assembly is.
Mr McCausland:
I would like that issue to be explored further. An understanding is all very well, but if it is not written down in black and white it can be forgotten about. The issue of education, as the Committee is only too well aware, is controversial and contentious in many ways. It is of fundamental importance to our society; therefore we should consider a legislative way of ensuring that the membership of the ESA reflects political reality.
Mr D Bradley:
An education and library board has 35 members and covers a fifth of the area that the ESA will cover, why does the Department think that a third of the number that makes up an education and library board will be sufficient for the board of the ESA?
Mr Stewart:
A key factor that drove the size of the membership of education and library boards was that those bodies were intended to be representative from the outset. Therefore, in order to get sufficient spread it was necessary to have membership of that size to include local council, TRC and trustee membership; that is in the legislation. Since the ESA is not intended to be a representative body, its board or membership was intended to be small and of a size effective for the discharge of its business, as opposed to securing a broad representation of interested parties.
Mr D Bradley:
Since the ESA will have responsibility for education in all of Northern Ireland, it strikes me that 11 members will not be sufficient. It might be restrictive because it might be difficult to ensure that councillors have the required range of expertise. A bigger board would be desirable to allow for a greater range of independent expertise.
Mr Stewart:
That is a valid view that we have put to the Minister and which she is considering. We have included in the Bill a provision to enlarge the membership by means of an Order if it proves necessary to do so. Therefore, the choice is whether the Committee is satisfied with that fallback mechanism, which would allow us to enlarge the membership later if it was thought necessary, or whether the Committee wishes the Bill to be amended so that we can enlarge the membership from the outset. Either way, the Committee would be confident that the ESA would not be left with a membership that is too small to do the job, even under the legislation as it stands. Therefore, if the membership were too small, there would be a mechanism in place to make a rapid change and to appoint more members.
Mr D Bradley:
I agree that a huge membership could become cumbersome and might not help the smooth running of the organisation; however, too small a membership could create its own problems.
Mr Stewart:
That is correct, given the importance of the committee work that will be done in the ESA.
Mr D Bradley:
There is a balance to be struck between a huge membership and one that is too small, and I am not sure whether the membership proposed in the Bill strikes that balance.
Mr Lunn:
We are constantly told that we are creating the biggest ever organisation in Northern Ireland with the smallest ever board. I assume that the composition of the education and library boards has a statutory basis; it is set up in legislation. That is what we are trying to achieve here. How can legislation give organisations such as the TRC membership of boards as of right but we cannot construct a Bill to do the same thing? We are constantly told that the Bill refers to education Orders going back to the 1950s. It would be much easier if the slate were wiped clean and a brand new Bill introduced, because we could all understand it better. That said, the Bill could refer to the legislation that formed the education and library boards; in fact, it probably does.
Mr Stewart:
You raise several points. The watershed is the Northern Ireland Act 1998, which defines the legislative competence of the Assembly; therefore any legislation made after that date must comply with its provisions. Education and library board members are appointed in accordance with the Education and Libraries ( Northern Ireland) Order 1986, which predates the Northern Ireland Act 1998. Therefore, there are provisions in legislation that were lawful and proper at the time but for which the Assembly could not legislate in a similar way today.
It is possible to cleave existing provisions on the statute book, and they continue to have effect. That is the solution that we are following as regards maintaining the TRC guaranteed membership of school boards of governors. That is possible only by leaving the existing legislation intact.
There would be many advantages if we were to wipe the slate clean, as you say, and start with a clean piece of legislation. However, one of the downsides would be that we might wish to retain some provisions in current legislation but be unable to do so because we could not re-enact them.
Mr Lunn:
I am not saying that there is any suggestion of obstruction here, but we seem to be using previous legislation to prove that we cannot do what appears to be clearly right.
Mr Stewart:
Whether an issue is clearly right or not is a matter for —
Mr Lunn:
Clearly desirable, then.
Mr Stewart:
Whether something is clearly desirable is a matter for the Committee to comment on; it is not for me to comment on. I can merely advise you on what is legally possible and what is not. Some things that were possible in 1986 are not possible today.
Mr Lunn:
We are drafting legislation here. Anything is possible if we put it into the Bill.
Mr Stewart:
With respect, that is not quite correct. This is one area where that is simply not possible. The Northern Ireland Act 1998 and the Westminster Parliament remain sovereign in that respect, and that has placed quite significant restrictions on the legislative competence of the Assembly and the administrative competence of Departments in what we are permitted to do.
That issue was explored in detail by colleagues in the Department of Culture, Arts and Leisure in relation to membership of the library authority. They received very clear advice from senior counsel that it simply was not possible to employ a d’Hondt-type mechanism when deciding the membership of the library authority. Exactly the same situation applies here.
Mr Lunn:
I am not suggesting d’Hondt. This is getting even more complicated. It is Westminster’s fault that we cannot do what appears to be clearly desirable and wanted by the population and the Committee.
Mr Stewart:
That is a fair point. As I told the Committee before, section 6 of the Northern Ireland Act 1998 is an extremely blunt instrument. I am not certain that those who drafted section 6 had this particular situation in mind. Nevertheless, the effect of the section is quite clear.
Mr McCausland:
The difficulty is that schools are very different from libraries. When one has discussions about libraries, one does not get quite the passion and range of representations that we are getting here. One does not have integrated libraries, Catholic libraries, Irish-medium libraries or whatever. There are just libraries. Therefore, this is a totally different and special situation.
We should not rule out, or allow others to rule out, the possibility of legislative change at Westminster. If that is what it takes to get education in the right shape in Northern Ireland, and if it is in order to advance the principle of equality, then how could they possibly stand it the way of that? It would seem the most natural thing for us and for all parties to ask for, and for Westminster to deliver, because it would advance the cause of equity across the education system.
The Chairperson:
The way that the Bill is numbered is an absolute minefield. The simplest approach is to turn to page 31 of the Bill and the heading “Membership”. Paragraph 2(2)(b) states the Department will secure:
“that each member has experience in a field of activity relevant to the discharge of the functions of ESA.”
How do we determine whether a person has experience in a field of activity relevant to the discharge of the functions of the ESA? Is it simply enough that they were a teacher, worked for an education and library board, or were a school caretaker? What would be the definition of experience?
Mr Stewart:
There would not be a formal definition that would go any further than that. However, the three examples that you gave would be very weighty examples and would count as very significant experience. Likewise, so would, for example, experience of running a large organisation, delivering a public service, managing a large budget, managing a large workforce and managing or delivering youth services. Therefore, it is a very broad provision.
We must attempt to ensure that we address one of the issues that Trevor raised. Although the ESA will have a small membership, it should have the skills, experience and competence that are necessary to manage the delivery of a key public service. There are many different routes by which the necessary experience can be gained. We do not want the Bill to be too prescriptive in tying that down.
Mr Lunn:
Chris has just mentioned six areas of expertise. However, there are only 12 places on the ESA, and seven of those will be filled by councillors.
The Chairperson:
Let us set aside the seven councillors for a moment. What will govern the appointments of the other four members? Will it be experience of education, of finance, of running a —
Mr Stewart:
The same experience requirement applies to all members, both councillors and non-councillors.
The Chairperson:
Therefore, in that respect, each individual is a member of the overall 11, rather than of the groups of seven or four members.
Mr D Bradley:
I sit on the Committee for Culture, Arts and Leisure, and in the aftermath of the difficulties experienced by the Northern Ireland Events Company, we did a lot of work on arm’s-length bodies. A protocol is now in place whereby members of the boards of arm’s-length bodies — and the ESA is a type of arm’s-length body — must undergo rigorous training to ensure that they are fit for purpose. They must have the proper expertise to perform the required functions and to operate an organisation efficiently and effectively.
You said that you will initially identify people who have the relevant and appropriate experience. Does the Department view compulsory training as an important element of membership of the ESA board?
Mr Stewart:
Yes, absolutely. It is essential that the ESA board is fully trained and competent and that it takes account of the issues that you have raised. For example, it is essential that one of the members is in a position to chair the audit and risk committee, which I am sure the organisation will have. That person must be experienced and competent and have an understanding of audit and financial management and the very issues that you considered in respect of the Northern Ireland Events Company.
The Chairperson:
Chris, I appreciate your giving evidence today, because you were not briefed that that would happen.
Mr Stewart:
I had an inkling. [Laughter.]
The Chairperson:
It never crossed my mind to ask you until I saw you this morning.
In the table of stakeholder comments, the South Eastern Education and Library Board (SEELB) said that:
“Until the standing rules and orders (SROs) for the new ESA are available it is extremely difficult to make meaningful comments. In the interests of operational efficiency the Board believes the size of ESA should not exceed 12 members, and also welcomes the provision for delegation of functions in 8 (1).”
Will the standing rules and orders be agreed by the ESA itself, or will they be separate from what we are considering in the schedule?
Mr Stewart:
They are separate in that they are not part of the schedule. However, the standing orders of the ESA will be subject to the Department’s approval.
Mr Lunn:
On the issue of membership, paragraph 2(1)(b) of schedule 1 states that the ESA should have:
“not fewer than 7 or more than 11 other members, appointed by the Department.”
Will the Commissioner for Public Appointments have some input? Does “appointed by the Department” actually mean appointed by the Minister?
Mr Stewart:
We are indivisible. The Minister is the Department, and the Department is the Minister.
Mr Lunn:
A lot of the comments refer to the Minister, but the Bill refers to the Department. Could the Bill refer to the Department in conjunction with the Commissioner for Public Appointments?
Mr Stewart:
That would be an unusual approach. Those particular appointments will fall within the commissioner’s formal regulatory framework. The Minister has already made clear that the appointment arrangements will take full account of the principles in the commissioner’s guidance. The approach that we adopt will be whatever the Commissioner for Public Appointments deems to be best practice.
Mr Lunn:
As with any other senior public appointment, when the Department produces a list of potential appointees, that must be scrutinised by the Commissioner for Public Appointments. If the commissioner did not agree with that list or felt that there had been some sort of political bias, to what extent would the Minister have to take note of that advice?
Mr Stewart:
The commissioner will scrutinise the arrangements and the process that we follow. The Minister may wish to have an observer from the commissioner’s office involved in the arrangements, although she has not decided on that yet. That is done from time to time, and it is a positive step. It is helpful for Departments to have someone from the commissioner’s office present to keep officials right as they operate the procedures. There will be scrutiny, and if the commissioner feels that something that has been proposed or carried out is sub-par or suboptimal, she will quickly make the Department aware of it.
Mr Lunn:
The Commissioner for Public Appointments recently gave evidence to the Public Accounts Committee in relation to the NI Events Company and similar conflicts of interest. She gave the impression that she was quite frustrated by her lack of independence. I detected that she thought that her advice was not always followed and did not have to be followed. That is why I am asking the question.
Mr Stewart:
It is difficult for me to comment on the legislation governing the powers of the Commissioner for Public Appointments. That is for my colleagues in the Office of the First Minister and deputy First Minister to comment on. However, the Minister has emphasised that she regards it as extremely important that the arrangements that are put in place follow best practice, and are clearly seen to do so. I have no doubt that the Minister will take seriously any advice that the commissioner offers on how to go about that.
Mr D Bradley:
Did you say that the councillors who would be members of the ESA would reflect the political make-up of Northern Ireland?
Mr Stewart:
I cannot go so far as to say that. The merit principle will be central to the arrangements. The arrangements will be based on establishing criteria against which candidates will be assessed. If I can oversimplify it, there will be a pass mark, and a pool of potential candidates who have exceeded that pass mark or met the criteria will be determined. It is not necessary for the Minister to follow strict merit order in appointing candidates if that would produce a result that might be perceived as being inequitable in some way. Although the merit principle must always be uppermost in the Minister’s mind, she can select people for appointment from that pool in order to try to achieve a balance, or better balance, of political viewpoints. However, the Minister is not trying to achieve one particular outcome or a membership of a certain shape.
Mr D Bradley:
Under the current draft of the Bill, it is not inconceivable that the majority of councillors on the board could be from the same political party as the Minister. The challenge role of the board members would be severely lessened under those conditions. Surely that would be a cause for concern for everyone. Is there no mechanism in place for ensuring that that does not happen?
Mr Stewart:
It would be the Minister’s intention to ensure that that does not happen. Theoretically, the arrangements could mean that the board could comprise 12 men or 12 women from one town, or 12 people from one political persuasion. However, the Minister is on record as saying that it is important to have local democratic accountability in the membership. She is also on record as stressing the importance of equality. I am sure that the Minister will take those factors into account when she is selecting people for appointment to the board.
Mr D Bradley:
The legislation will not apply to the current mandate, but it will apply to future mandates. Therefore, surely we need to have a guarantee in the legislation that a situation will not arise whereby the challenge function and role of the board is in any way compromised.
Mr Stewart:
I am not exactly sure what you mean by the challenge role of the board. It will not be the board members’ function to challenge the Minister; it will be the other way around. There will be an accountability relationship between the ESA members and the Minister. I do not see it as a challenge role.
Mr D Bradley:
Surely the board will have the role of challenging the senior officials in the ESA.
Mr Stewart:
Yes, very much so.
Mr D Bradley:
If the situation arose where the majority of members were from the same party as the Minister, that challenge role might be lessened.
Mr Stewart:
I am not certain that that would be the case. One of the things that we have attempted to do in the legislation is to make clear the relationship between the Minister of the day, the Department and the ESA. There have been times in the past when our colleagues in the education and library boards have seen that relationship differently to how we see it. They do not necessarily agree that there is a clear line of accountability between education and library boards and the Minister. What view one might take on that is a matter for oneself, but we have sought to put the matter beyond doubt in the legislation. The relationship between the ESA and the Minister will be one of accountability.
The Chairperson:
The Committee is now inquorate, but we are not taking any decisions, so we can continue.
Mr Stewart:
I am happy to be co-opted.
The Chairperson:
We thought that you were already an honorary member.
Irrespective of who the current Minister is or who the future Minister will be, surely a mechanism must be put in place to give people confidence that the board members will not simply be appointed on the whim of the Minister of the day. The Minister continually tells us about equality, so, if this is about equality, why is there a fear of putting equality legislation in place to deliver that intention? I have heard many times in this Committee and in other places that it does not matter how well intentioned people are, if something is not written into the Bill, it cannot be guaranteed.
We go back to the core issue, which is section 6 of the Northern Ireland Act 1998. If we want to get to a place where everyone believes that we are operating in a fair and equitable manner, surely the legislation should be changed to remove that legal impediment. That was a sticking point in the Culture, Arts and Leisure Committee, and you were right to refer to that, Chris. They kept saying that they could not do a particular thing because of legislation in Westminster, but no one ever went to Westminster and asked for it to be changed. Nelson made the point that we do not have maintained libraries, Irish-medium libraries or independent libraries; we just have libraries. However, different sectors deliver education here; it is a completely different ball game. There are concerns about that.
I am interested in members’ comments, because I want to draw a line under the matter at this point. We have had a good discussion, but I want to ask members some questions. Although we cannot take a decision on the matter, is there a view that we should consider an amendment to section 6 of the Northern Ireland Act 1998 in order to reach a position in which proper mechanisms and controls are in place that assure everybody that the system is fair? I ask that question in light of comments about how appointments would be made. Another issue is the overall number of ESA members; should there be 12 or another number? Of course, the first part influences the second, because if section 6 is changed, the d’Hondt principle could be used to appoint the elected representatives.
Mr Stewart:
I could assist members in responding to your point. The need to amend section 6 would arise most sharply if there was a desire to use a mechanism such as d’Hondt or a desire to meet the TRC request for it to be guaranteed membership of the board.
It may not be necessary to amend section 6 if one adopts the approach that Nelson suggested, which reflects a broader requirement for the membership to be representative of the community in the way that the membership of the Equality Commission and the Human Rights Commission is required to be. I add the caveat that I would need to talk to the lawyers about that matter. However, it does not strike me that that idea would cause as many problems with section 6 as some other approaches would.
That crystallises the issue, which is: does the Committee want the membership of the ESA to be representative, or should membership be driven by competence or the need to ensure that it is able to manage the services for which it is responsible? The Bill’s approach has placed an emphasis on ensuring that the ESA has the skills and competence to run the service while recognising the importance of equality, trust and confidence. The alternative approach would shift the emphasis: if the desire is to, first and foremost, create a body that is representative and that, as a secondary requirement, has skills and competence, the legislation would be framed very differently. The Minister’s approach is very much to place competence at the top of the list and to ensure that the board is fit for purpose.
The Chairperson:
Are you saying that we could change the emphasis and avoid amending section 6?
Mr Stewart:
I think that it may be possible, but not quite in the way that was suggested by some stakeholders. The TRC made the point that it is seeking —
The Chairperson:
It is seeking representation.
Mr Stewart:
That is simply not possible.
The Chairperson:
The Committee recognises the problems that that would create.
Mr Stewart:
There are more than three Protestant Churches; we cannot simply pick out three.
The Chairperson:
Moreover, there is a raft of other organisations that could say that if one body has a right, they also should have a right. That could start a legal debate that would also touch on their place on education and library boards.
Mr Stewart:
It is possible, and Nelson summed it up neatly earlier. It is probably possible — if that is not an oxymoron — to draft a provision that would allow for a broadly based representative body. Whether that is a wise idea is another question.
Mrs O’Neill:
There must be some balance. The body needs skills and competency, but it must also be representative. The challenge is to incorporate those elements. Experience in the field is relevant, but the body needs to be representative, too. That is not easy.
Mr Stewart:
It is not an easy one. It is a political question as to whether or not the membership of public organisations ought to be representative in character or more executive in character. The Bill’s approach is to take the executive line.
Mr D Bradley:
I would be more concerned about the range of expertise in a body with just 11 members. That number would be restrictive.
The Chairperson:
My next comment in no way casts aspersions on my council colleagues — I should say our council colleagues, and then we will all be condemned. If membership of the ESA is limited to seven or 11, the spread of expertise will also be limited, particularly given the number of council representatives that will sit on it.
Mr Stewart:
There is no doubt that the larger the membership, the easier it will be to ensure that there is the necessary spread of competence. The Minister’s view is that it is possible to ensure that level of competence with a membership of 12.
Mr D Bradley:
I would have thought that a membership of about 20 would allow for a range of expertise.
The Chairperson:
Would you still favour a split whereby the majority of the members would be elected representatives?
Mr D Bradley:
Yes.
The Chairperson:
Do members have any other views? Trevor, you have rehearsed your point well, but I am not stopping you from repeating it.
Mr Lunn:
I am not going to repeat it. However, if section 6 of the Northern Ireland Act 1998 had to be tinkered with in some way and Westminster could see that we were being constructive and trying to make progress — after all, this is a major piece of legislation and we are talking about a big problem — I would have thought that Westminster would look benignly on our request as long as we were not trying to break the rules completely. The impression seems to be that asking Westminster to make a change to basic legislation is a terrible thing. Nowadays, legislation can be passed in a couple of days. Look at the how quickly the criminal justice legislation went through Westminster — if you blinked, you would have missed it.
The Chairperson:
Their minds are on other issues at the minute.
Mr Stewart:
I do not emphasise that point because I think that it presents any sort of insurmountable technical challenge; technical challenges can be overcome quite quickly, and, indeed, frequently are. The issue is the significance of section 6 of the Northern Ireland Act 1998. It stems directly from the Belfast/Good Friday Agreement and is rather central to it. Any change to it would be very significant. It is not for me to anticipate what might be said at Westminster, but in view of the seriousness and significance of that section, I am sure that the Secretary of State would want to consider any change to it very carefully. There may well be a particular purpose in mind here for the education sector and that may have a broad measure of support, but the Secretary of State would also have to consider what further ramifications or unexpected consequences there might be were any change to be made to section 6.
The Chairperson:
On a previous occasion, you mentioned two other pieces of legislation that dealt with the promotion of Irish-medium education and integrated education. I think that they flowed from the Belfast Agreement. Are they covered in section 6?
Mr Stewart:
No, they are not; that is a different matter. A provision in the Education ( Northern Ireland) Order 1998 places a duty on the Department to encourage and facilitate Irish-medium education, the origins of which can be traced back to the Belfast Agreement. The similar provision for integrated education pre-dates it.
The Chairperson:
It will take us some time to cover the next provision in schedule 1, and we must move on. However, I would like members to consider the connection between paragraphs 2, 7 and 8 of schedule 1.
It might be helpful to move to page 31, which is the start of schedule 1, and go through any issues of concern. There are no issues with paragraph 3, which deals with the tenure of office of the ESA. There is obviously an issue around remuneration and allowances for members. Everyone will be paying due regard to that, I hope.
I hope that it will be well scrutinised and open to public inspection.
After remuneration, allowances and pensions of employees, we come to committees, and there is an issue concerning the link between the ESA board and the establishment of committees; to date, we have not had a clear indication about the shape of the committees. Members will know that this matter was referred to in the letter that the Committee agreed to send to the Minister. The Minister’s view is that local committees will comprise elected representatives and that the relationship with the local ESA unit will not be specified in legislation. Members will recall that the reference to an ESA footprint and other such aspects must be flexible to allow the ESA to develop and transform itself.
We shall leave our considerations for the time being, and committees will be our starting point when we return to the Bill. Thank you, Chris, and I thank members for their indulgence. Once again, I thank the staff for their invaluable contributions in preparing the paperwork to enable us to do our work.
Are members happy to work on, even though we do not have a quorum? No decisions will be made; we will just be hearing presentations.
Members indicated assent.