COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
10 June 2009
Members present for all or part of the proceedings:
Mr Trevor Lunn (Acting Chairperson)
Miss Michelle McIlveen (Acting Chairperson)
Mrs Mary Bradley
Mr John O’Dowd
Mrs Michelle O’Neill
Witnesses:
Mr Chris Stewart ) Department of Education
Mr Jeff Brown ) Department of Education
The Acting Chairperson (Miss McIlveen):
The Committee now moves to the scrutiny of clauses 1 and 2, schedule 1 and clauses 3 to 12. Members are thin on the ground this morning, and the spokesmen — and “spokesmen” is the correct word — from the Ulster Unionist Party, the DUP and the SDLP are absent. Are members content to continue with the clause-by-clause scrutiny, even though it may be deemed inappropriate to make decisions in the absence of those members?
Members indicated assent.
The Acting Chairperson:
Several papers have yet to be forwarded to the Committee from the Department. Although Chris Stewart is not here in his capacity as a witness, are members happy for him to aid us in our deliberations?
Members indicated assent.
The Acting Chairperson:
Chris, you are more than welcome.
Mr Chris Stewart (Department of Education):
My colleague Jeff Brown is with me today.
The Acting Chairperson:
Members will recall that at its meeting on 27 May 2009 the Committee began its detailed scrutiny of clause 1, which creates the education and skills authority (ESA); and schedule 1, which deals with the ESA’s membership and committee arrangements, among other matters. The Committee considered clause 1 and discussed in some detail schedule 1(2), which deals with the membership of the ESA. Members had no comments on schedule 1(3) to schedule 1(6). The Chairperson reminded members to consider their position on the make-up and role of local committees before the next meeting.
I propose that the Committee continue its scrutiny of the remaining paragraphs of schedule 1 as well as clauses 2 and 3 to clarify our position on them.
I remind members that, having heard many stakeholders’ concerns and the Department’s response to them, the objective of the session is to obtain clarity on members’ views; in particular, whether they are content with the clauses or whether they would like them amended. Members may wish to express that as proposed changes in principle or suggested rewording or additional wording; they may request additional information or clarification as a matter of urgency from the Department or from stakeholders in response to their concerns.
Schedule 1(7)(1) states:
“ESA may establish committees”
There is no requirement in paragraph 7 or elsewhere in the Bill, as far as I am aware, for the ESA to establish either local or any other kind of committees, although the Minister and officials said that it is the intention to create local committees. The Department of Education’s response to the Northern Ireland Council for Integrated Education (NICIE) submission was that although the ESA’s committees and local units will be a key part of the organisation, it was not the Department’s intention to specify the detail of committee arrangements in the Bill. The Department is preparing a paper on local committees, which was to have been with the Committee three or four weeks after the Department’s letter of 5 May. However, it has not yet arrived. Is there any further information on it?
Mr Stewart:
We hope that the paper will be with the Committee next week.
The Acting Chairperson:
The Committee does not know the content of the paper. However, if the Department’s position continues to be that the committee arrangements should not appear in the Bill, are members content with such an approach? Would they wish the Bill to require the Department to create and fix the number of local committees or spell out their role and function and what regard the ESA and its local manager and delivery units should have to local committees? It depends on whether we want to go into such detail.
Another approach would be the inclusion of an enabling provision for the Department of Education to make regulation covering the composition, role and operation of local committees. The mechanism that the Department of Education proposes is similar to what it proposes for the education advisory forum. A component for that could include a timing requirement, possibly linking the commencement of the Bill to the making of the regulations. Members may also wish to consider whether such a regulation should be subject to positive or negative approval by the Assembly. Have members views on that paragraph?
Mr Lunn:
Four words seem scant preparation for committees and their duties. Is there a comparison with what happened with the Library Authority?
Mr Stewart:
Such wording is by no means unusual in review of public administration legislation. It would be unusual to specify in primary legislation the subregional or local organisation of a regional body, although that is not the case with the Housing Executive or the Police Service. I understand that the Police Service legislation requires a subregional structure, but does not specify what that structure might be. For example, it is regarded as an operational matter for the Police Service to determine the configuration of the various divisions in the service. Likewise, the Housing Executive’s local structure is based on regions, divisions and local offices, but that is not specified in legislation.
Mr Lunn:
Should an enabling provision be inserted in the Bill to allow the Department to make regulations?
Mr Stewart:
If such a degree of control were considered necessary, that would be a possible approach. However, the Department will always have the power to direct the ESA if it felt that the ESA was falling short or taking a fundamentally wrong approach on local structure. An enabling provision for regulations would simply be a more specific means of doing the same thing.
I take the Acting Chairperson’s point about linking the regulations to the commencement arrangements overall. However, it would be necessary at least to commence the powers to make regulations so that those regulations were brought into operation when the ESA comes into existence. Making the commencement arrangements under such an approach could become complex and would have to be thought through carefully.
Mr Lunn:
Are you happy with the provision as it is? I do not have a firm view on it.
Mr Stewart:
The happiness, or otherwise, of departmental officials is not important. [Laughter.] It is the Minister’s view at present that the provisions should remain as drafted.
Mr O’Dowd:
Is there any legal impediment to changing schedule 1(7) from “ESA may establish committees” to “ESA will establish committees.”?
Mr Stewart:
No.
Mr O’Dowd:
Without going into the details of what the committees will be, would that be possible?
Mr Stewart:
Subject to legal advice, I do not see that being a problematic change.
Mr Lunn:
Can I take it that the ESA cannot operate a nationwide system without local committees?
Mr Stewart:
It would be extremely difficult for it to operate effectively without local committees. Without such committees there would not be the necessary local input from elected representatives and stakeholders to allow the organisation to be sufficiently in touch with what it needs to do.
Mr Lunn:
I agree with John’s suggestion that 1(1) should be changed from “ESA may establish committees” to “ESA will establish committees.”
Mr O’Dowd:
The Committee should check the legal advice on that change. Sometimes changing a small word in legislation can make a huge difference.
Mr Stewart:
It can indeed. I suspect that the draftsman might prefer “ESA shall establish committees” rather than “ESA will establish committees”. He will also advise the Department of any other changes that may be required to be made to the legislation.
Mr Lunn:
Here we go again.
The Acting Chairperson:
Will that information be included in the paper that the Committee will receive from the Department next week?
Mr Stewart:
If the Committee wishes, the Department can suggest that to the Minister.
The Acting Chairperson:
Are members content for that suggestion to go to the Minister?
Members indicated assent.
The Acting Chairperson:
Schedule 1(7)(2) makes the membership of any committee of the ESA subject to the approval of the Department. Are members content with that approach? It is linked to our previous discussion on committees.
Mr Lunn:
Am I reading schedule 1(7)(2) correctly? It states that:
“A person who is not a member of ESA shall not… be appointed to a committee of ESA.”
The Acting Chairperson:
In full it states that:
“A person who is not a member of ESA shall not, except with the approval of the Department, be appointed to a committee of ESA.”
Mr Stewart:
That is a fairly standard provision. It is intended to allow for the committees of the ESA not to be exclusively composed of full members of the ESA. Rather, the provision inserts a requirement, as Trevor correctly pointed out, for departmental approval if the ESA wishes to appoint someone who is not a full member of the ESA to a committee.
There will be what one might regard as wholly internal committees in the ESA. For example, every non-departmental public body of this nature would have an audit and risk committee, but that is an internal matter, and the ESA will decide which of its full members will be members of that committee. It would not be required to seek departmental approval for such appointments.
Mr Lunn:
Yes, but we are discussing local committees. Schedule 1(7)92) —
The Acting Chairperson:
It deals with committees that are much broader than the local committees.
Mr Lunn:
It would make more sense to me if it did not say “not”.
Mr Stewart:
That provision allows for the full range of the committees that the ESA may require, both those that one would expect at the headquarters of a regional organisation, as well as local committees.
Mr Lunn:
Does:
“A person who is not a member of ESA”
mean that a member of those seven to 11 people at the top of the tree cannot be appointed to a sub-committee?
Mr Stewart:
They can, but only with the approval of the Department.
Mr Lunn:
OK. “except with the approval of the Department”. Does that mean that the Department has to approve every member of the ESA’s sub-committees?
Mr Stewart:
Yes. That is not an unusual approach. Since the Department will be giving the ESA £2 billion of taxpayers’ money, it has a strong interest in who that body appoints to look after those funds.
Mr Lunn:
Why is that decision left with the Department rather than the ESA?
Mr Stewart:
The ESA will decide whom to appoint to committees. However, the appointment of people who are not members of the ESA will be subject to departmental approval. That is not unusual, and, indeed, I am not aware of any organisation that does not have a similar requirement.
The Acting Chairperson:
Are members content with schedule 1(7)(2)?
Members indicated assent.
The Acting Chairperson:
Schedule 1(7)(3) provides that the ESA may pay to members of its committees who are neither members nor employees of ESA such remuneration and allowances as ESA may, with the approval of the Department, determine. Are members content with that provision?
Members indicated assent.
The Acting Chairperson:
Schedule 1(8)(1) permits the ESA to delegate any of its functions to any committee or employee of the ESA; 1(8)(2) permits a committee of the ESA to delegate any functions to any employee of the ESA; and 1(8)(3) makes such a delegation of functions subject to law and to any regulations that the Department may make under schedule 1(8)(4).
Such regulations would enable the Department to require prescribed functions of the ESA to be exercised on its behalf by a prescribed employee of the ESA, and it would allow the Department to regulate the ESA’s appointment of an employee for the purposes of exercising such functions.
Are members content with that approach or is further clarification required? Would members prefer the functions to be specified in schedule 1(8) or are they content to let the Department deal with them in regulations?
Mrs M Bradley:
We should go with your suggestion.
Mr Stewart:
Such detailed specification would be most unusual in either primary or subordinate legislation. Schedule 1(8) is a standard paragraph with a standard approach to the internal governance of a non-departmental public body. We do not envisage the power to make regulations being used very often, but I will give an example of a situation in which it might be used.
The ESA will have a director with responsibility for children’s services. I am not saying that we would, but, in certain circumstances, the Department might want to ensure that that member of staff took the lead role in child protection issues, perhaps in liaison with other public authorities. We might also wish to ensure that the holder of that post is suitably qualified and experienced in child-protection matters. If necessary, we could prescribe that in regulations under schedule 1(8)(4)(a) or schedule 1(8)(4)(b).
It would require a great deal of additional detail to try to specify precisely the role of a local committee in either primary or subordinate legislation. That would be a very unusual approach, and not one that I recommend.
The Acting Chairperson:
Will you provide a breakdown of the nature of the regulations?
Mr Stewart:
I imagine that the regulations will be very short; they would simply identify the posts for which we want to prescribe duties and the qualifications that the post holder should have.
The Acting Chairperson:
Is there any information about the powers?
Mr Stewart:
I am sorry; I do not quite follow the question.
The Acting Chairperson:
Will you explain what you said in advance of that?
Mr Stewart:
If we felt it necessary, the regulations could apportion functions and duties to the ESA’s senior staff or specify that a post should be responsible for child protection, for example, rather than leave it all to the ESA.
If we wished to be particularly directive, we could specify all the posts and functions and all the qualifications that all post holders must have. I do not envisage the Department having to do that.
Mrs M Bradley:
The Department again uses the word “may” rather than “can”. I do not believe that that shows that the Department is disposed towards taking action. The word “may” is not strong enough.
Mr Stewart:
I will convey the Committee’s views to the Minister. It is not for me to encourage the Committee one way or another, other than to say that that would be a most unusual approach.
The Acting Chairperson:
Will the regulations go through the Department or the Assembly?
Mr Stewart:
I would have to check the Bill, but I imagine that the regulations will be subject to the normal Assembly control, almost certainly by negative resolution.
Mr O’Dowd:
Mary questioned the use of the word “may”; however, schedule 1(8) allows the Department to decide whether it may or may not act in a particular way, whereas “shall” would be more prescriptive.
Am I correct in assuming that the authority to delegate powers to an employee exists in many agencies and Departments and in local councils, the officers of which can be delegated powers by their council?
Mr Stewart:
Yes, absolutely; all RPA legislation has similar provisions.
The Acting Chairperson:
Are members content with schedule 1(8)?
Members indicated assent.
The Acting Chairperson:
Schedule 1(9), 1(10), 1(11) and 1(12) provide for the ESA to make standing orders to regulate its procedures and committees. They deal with the validity of its proceedings, those of its committees in certain eventualities, the application of the ESA seal in the execution of documents and the service of documents on the ESA. Members will note from the information that was collated by the Committee Clerk that the Ulster Teachers’ Union was the only organisation to comment on those provisions. Do members have any views?
Mr Lunn:
They appear standard; however, does section 19(1)(a)(v) of the Interpretation Act ( Northern Ireland) 1954 restrict the ability of the ESA to make its own rules?
Mr Stewart:
No. That is a standard and well-worn piece of legislation that sets the governance rules for every public body.
The Acting Chairperson:
Are members content with schedule 1(9), 1(10), 1(11) and 1(12)?
Members indicated assent.
The Acting Chairperson:
Schedule 1(14), 1(15) and 1(16) provide for the funding of the ESA by the Department of Education and the Department for Employment and Learning. They prevent the ESA from borrowing money, require it to keep proper accounts and to provide those accounts to the abovementioned Departments and to the Comptroller and Auditor General. Are members content?
Members indicated assent.
The Acting Chairperson:
Schedule 1(17) and 1(18) provide for the sending of an annual report to the Department of Education and the Department for Employment and Learning, for the laying of it before the Assembly and for other such reports and returns that the Department of Education and the Department for Employment and Learning may reasonably require. Are members content with those provisions?
Members indicated assent.
The Acting Chairperson:
Schedule 1(19) would add the ESA to a list of organisations whose members are disqualified from serving as MLAs. Members will recall that the Committee sought legal advice on this, which it considered at its meeting on 27 May 2009. The legal advice was that without 1(19) there would be no legal impediment and that, in respect of a conflict of interests, an MLA could serve on the ESA provided that they declared their membership in the way that they declare membership of an education and library board.
Do members consider a declaration of interest sufficient, or would it be preferable to rule out the possibility of such conflicts, as paragraph 19 would? I know that some absent members have an opinion on the matter. Should we continue the discussion or should we wait until those members return?
Mr O’Dowd:
I am happy to wait. I think that there is more to the legal advice than has been outlined today. I am happy to return to the issue, but members should study the legal advice.
The Acting Chairperson:
Since the issue could cause problems, are members content to return to it at a later date?
Mr Stewart:
For members’ benefit, the paragraph is a standard one. There is a similar requirement on all the new public bodies established by other Departments under the RPA. The Minister will, of course, consider any view expressed by the Committee, but if the Committee wishes to suggest a change, the Minister will no doubt wish to know why the Committee sees a need for MLAs to be members of the ESA when they are disqualified from membership of similar public bodies established by other Departments.
The Acting Chairperson:
Are members happy to return to the issue?
Members indicated assent.
The Acting Chairperson:
Paragraphs 20 to 22 of schedule 1 make the ESA subject to the ombudsman and the Freedom of Information Act 2000, and set the financial year end as 31 March. Are members content with those provisions?
Members indicated assent.
The Acting Chairperson:
We move on to clause 2. I refer members to the spreadsheet of stakeholder comments and concerns, the Department’s responses, and the wording of the clause covering the functions and general duty of the ESA.
Members will recall concerns that the ESA’s duty regarding youth services is referenced in clause 2(2)(b); 2(2)(a) covers the ESA’s duty in respect of primary and secondary education and educational services. Members will recall that the Committee heard from officials that the reason for a separate subsection is that youth-services provision extends to the age of 25, which is beyond the age limit of 18 for children and young people to which the duty in clause 2(2)(a) refers. Do members have views on clause 2 or are they happy with the Department’s approach? Officials explained that educational services encompass pre-school education, but several witnesses, primarily those from the Southern and Belfast boards, expressed doubt.
Mr Stewart:
The definitions are extremely complex, and some overlap. Educational services include pre-school provision other than that in schools, which would be part of the definition of primary education. By means of a combination of the various definitions, clause 2 provides complete coverage of all the various services and stages of education. However, it is not an easy read because of the complexity of the definitions involved.
The Acting Chairperson:
Do members have any comments?
Mr Stewart:
The Minister may wish to suggest an amendment to clause 2(2)(b). We have given the technical explanation of why youth services have to be mentioned separately, but we recognise, as was pointed out by various stakeholders, that the language in clause 2(2)(a) is different from that in clause 2(2)(b). Clause 2(2)(b) looks rather bald by comparison. The Department may seek to make the language in clause 2(2)(b) more similar to that in clause 2(2)(a) to make it clear that youth services are seen as an important and intrinsic part of the education system, and that, just like primary and secondary education, it is their purpose to contribute to the spiritual, moral, cultural, social, intellectual and physical development of those who receive youth services.
The Acting Chairperson:
Have Members anything further to add?
As there no further comments, I will move on. Members will note that in response to C na G’s concerns and suggestions, the Minister has agreed that the ESA should have a statutory duty to encourage and facilitate Irish-medium education. The Department is considering how that might be reflected in the legislation. The Committee was provided with a copy of a letter sent to Dominic Bradley and the proposed wording of the Minister’s amendment. The Committee has not seen the detail of the amendment, and my party colleagues and I may have a view on it. Do members have any views on the clause and the Minister’s proposal, or do we want to wait until we see the detail of it? Are members happy to wait for the detail?
Members indicated assent.
Mr Stewart:
I suspect that the duty would look very similar in construction to the existing duty on the Department, which, if memory serves me correctly, is contained in article 89 of the Education ( Northern Ireland) Order 1998.
The Acting Chairperson:
Do you have an idea of when the Committee might be given a copy of that wording? There is obviously some urgency with this.
Mr Stewart:
We hope that the Minister’s reply to the Committee’s letter of 20 May will include that wording and most, if not all, of the other information that the Committee seeks.
The Acting Chairperson:
Clause 2(3) contemplates a situation whereby the ESA will temporarily be the owner of the schools currently vested in the education and library boards, pending the creation of a new statutory ownership body. Clause 22 and schedule 3 provide for the transfer of the property of the dissolved bodies, including education and library boards, to the ESA. Clause 2(3) specifically imposes a duty on the ESA that in exercising its duties it will:
“ensure that schools whose premises are not vested in ESA are treated on the same basis as schools whose premises are vested in ESA.”
The Council for Catholic Maintained Schools (CCMS) has flagged up its concerns regarding the fundamental contradiction inherent in the ESA having ownership of schools in one sector but not of schools in other sectors. My reading of that would be that CCMS sees that as positive discrimination, although I may take another view. I cannot speak on behalf of members who are not present, but a mechanism with which my party would be happier would need to be found in advance of the ESA being established. Do other members have a view on the nature and membership of the ownership body?
Mr Lunn:
CCMS has flagged up a concern, and that is fair enough, but clause 2(3) makes it abundantly clear that the ESA cannot discriminate in any way against schools whose premises are not vested in the ESA. It could not be simpler. For once, I agree with the thinking. I do not see what the problem is.
The Acting Chairperson:
So you are happy with that paragraph as it stands?
Mr Lunn:
Yes.
The Acting Chairperson:
Other bodies have made a number of comments. Members are extremely quiet this morning. [Laughter.] I do not know whether that is good or bad. Do members wish to discuss any other aspects of clause 2 at this stage?
Just before we move on to clauses 3 to 12, which fall under the heading of ‘ESA to be single employing authority for grant-aided schools’, I must make my apologies as I have to leave. I will now hand over to Mr Lunn. As I am leaving and only four members will remain, the Committee will not have enough members present to make decisions.
(The Acting Chairperson [Mr Lunn] in the Chair).
The Acting Chairperson (Mr Lunn):
Are members content that I take the Chair?
Members indicated assent.
Mr O’Dowd:
We will see how you behave yourself.
The Acting Chairperson:
Clauses 3 to 12 fall under the heading ‘ESA to be single employing authority for grant-aided schools.’ Although we do not have enough members present to make decisions, we can still discuss the clauses.
Before moving to the wording of each clause, I propose that the Committee consider the general issues that some stakeholders raised about the ESA employing all staff in grant-aided schools. A record of the issue and the position reached with the Department is set out on pages 2 to 4 of the table that is attached to the Committee’s letter to the Minister of 20 May 2009. I draw members’ attention to some points included in the departmental submission that was discussed at the Committee’s meeting on 1 April. I also draw members’ attention to some of the comments that were made by departmental officials at that meeting, which are reproduced on pages 3 and 4 of the table.
The first bullet point of paragraph 3 of the Committee’s letter to the Minister concludes that:
“the Committee had not expressed a formal view to the Minister on the suggestion”.
The suggestion is to amend the Bill to include a provision for the Department to make regulations on schemes of employment as set out in broad terms on 1 April. We can discuss the suggested amendment and regulation to give greater clarity and certainty about the detail of the arrangements and the content of employment schemes, but we cannot reach a view on them. Do members have any comments?
As members have no comments, I will move on. Members will recall that when the chief executives of the education and libraries board gave evidence to the Committee on 1 April 2009, Mr Cargo stated that:
“Certain consequences flow from being an employer that must be clearly identified in the Bill. There is potential for those to be included in the Bill, but the heading of the clauses relating to employment and the ESA refers to it as an “employing authority”. That has been part of the problem over the past 20 years in our dealings with boards of governors on employment issues. Boards of governors often claim that they are the employer and that the education and library board is only the employing authority; however, we have never been able to get legal clarity about the difference, and we were looking forward to that being provided by the Bill.”
That legal clarity has still not been provided.
Following that meeting, the Committee obtained legal advice on the employer/employing authority distinction, which highlighted that the Department, in relation to CCMS, had made regulations clarifying who the appropriate respondent was in the event of an employment dispute resulting in litigation and confirming the right of CCMS to be joined in any proceedings brought against the governors of a Catholic maintained school. Again, the Committee awaits a response from the Department on questions arising from that.
Clause 3(1) states:
“All teachers and other persons who are appointed to work under a contract of employment on the staff of a grant-aided school shall be employed by ESA.”
Clauses 4 to 8 provide for a system of employment schemes. An employment scheme is to be prepared by the submitting authority of every grant-aided school and submitted to the ESA for approval. Members will recall that a number of stakeholders, including the Governing Bodies Association (GBA) and the Northern Ireland Commission for Catholic Education (NICCE), raised serious concerns about those clauses and their consequences for the ethos of certain sectors and schools. Members will be able to recall that, so I will not read out the words that the representatives from NICCE used. Other stakeholders, such as C na G, the Northern Ireland Council for Integrated Education (NICIE), the North Eastern Education and Library Board, the Ulster Teachers’ Union (UTU), the Irish National Teachers’ Organisation (INTO) and other unions welcomed the concept of a single employer of all staff.
Do members have any thoughts on that, or will we keep moving?
Mr O’Dowd:
I am happy enough.
The Acting Chairperson:
Clause 3(2)(a) defines the submitting authority. For Catholic maintained schools, the submitting authority will be the trustees of a school, whereas in other grant-aided schools it will be the board of governors.
The views on the submitting authority are diverse. For example, on the one hand, the INTO said that all boards of governors — with no distinction for spurious ethos — should be submitting authorities. On the other hand, NICCE said that it welcomed the Bill’s recognition that the owner and trustees will have a key role in determining the scheme of employment and scheme of management of each Catholic grant-aided school. It believes that that is essential if owners/trustees are to fulfil their duty to ensure that the ethos and defining character of a school are sufficiently recognised and present. Members will recall that the Minister is minded to propose an amendment to the definition of submitting authority to ensure that the owners or trustees would be the submitting authority for all schools. The Department’s response to the unions is included in members’ packs.
At our meeting on 22 April, after the session with the Transferor Representatives’ Council (TRC), departmental officials advised the Committee that:
“one particular function — the role of the submitting authority — presents us with a challenge in relation to the controlled sector.”
Chris Stewart said:
“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.”
The Committee is still awaiting a paper from the Department on the general issues that were raised by several stakeholders to achieve clarity and certainty on the employer/employing authority issue through draft amendments to the Bill to make regulations and the terms of the draft regulations on schemes of employment as set out on 1 April. Do you have any thoughts on that, Chris?
Mr Stewart:
I will make a few points that could assist the Committee. The terms “employing authority” and “employer” have attracted a great deal of mystique. Members will notice that the term “employing authority” appears only once in the Bill, over the heading of the clauses. At times, perhaps too much is read into the phrase “employing authority”; it is simply the authority that employs. That is the Department’s fault, because that is the phraseology that it used at the beginning of the RPA.
I now tend to refer to the ESA as the single employer, which is what it will be. The ESA will employ all staff in all grant-aided schools. Boards of governors will have a range of employment functions that they will discharge on behalf of, and in the name of, the ESA. Any action of a board of governors will be on behalf of, and in the name of, the ESA. We recognise the point made by stakeholders about the need for clarity and certainty about what exactly boards of governors will be allowed to do. The Minister is considering the suggestion that that ought to be set out in regulations rather than in guidance only. She will, I hope, respond to the Committee on that matter next week.
At the same time, we can consider the issue on which your legal advice touched; whether the ESA, as the employer, will have the right to be joined to any action that is taken against a board of governors. I do not imagine that it would be difficult to include a provision that will make that the case. However, I do not think that there is as much uncertainty or lack of clarity on the matter as some stakeholders have suggested. The arrangements and the model that we have proposed are very similar to the arrangements that currently apply in Catholic maintained schools. Essentially, the CCMS model will be applied to all schools. That model has worked successfully since CCMS was established, and we propose to extend the arrangements on that basis.
The Acting Chairperson:
Do members wish to make any comments? I do not think that you will get any argument from the members who are currently present. We cannot do much about that presently; we will have to return to the issue.
Mr Stewart:
We appreciate the depth of concern that stakeholders have expressed to the Committee. At times, they tend to overlook a particular aspect of the policy. Many have sought to interpret the provisions as an attempt on our part to introduce some kind of command-and-control arrangements for employment. Nothing is further from our minds.
The intention is that the schemes of employment will be based on model schemes and that the stakeholders will have a very significant input — in fact, they may go as far as to write the model schemes for the ESA. For example, we would strongly encourage the Catholic commission to let us have its views and, if possible, suggestions for a model scheme that would apply to Catholic schools. Likewise, the GBA, if it chooses to resume contact with us, may wish to contribute to a model scheme for grammar schools.
The Acting Chairperson:
We will move on to look specifically at each clause. I will highlight some of the key issues and concerns around clauses 3 to 12 and schedule 1. Members may have other concerns, and I ask them to indicate whether they wish to raise them as we proceed. I will refer to the spreadsheet and some of the information in the letter and table that the Committee issued to the Minister on 20 May.
Clause 3(1) deals with the underlying principle of that part of the Bill. Do members have any proposed amendments in the light of what has been said, or will we have to leave the matter until the Committee has more of a representation?
Mrs O’Neill:
With respect, it may be safer to leave it. We can talk the issue through today, but we will have to come back to it if other members who are not present today have concerns to raise. That would mean that we would have to go over it again.
The Acting Chairperson:
If we had a quorum for decisions, I might even agree with you. Unless Edwin Poots walks through the door, we are goosed. If members wish to propose amendments, we can take note of them for future reference. The officials are present if members would like anything to be clarified.
Mrs O’Neill:
Is there any point in going over these clauses now, given that we will have to go over them all again when more members are present? Should we stop the scrutiny now and address other business?
The Acting Chairperson:
Do other members have any comments?
Mrs O’Neill:
We can talk about the Bill, but we cannot make any decisions or do anything. I know that we can get clarification from officials, but we will have to do it all again when more members are present.
The Committee Clerk:
The decision is up to members.
Mrs M Bradley:
We do not even know when the other two members will arrive.
The Acting Chairperson:
We have received an apology from Nelson McCausland, and Edwin Poots indicated that he would be here at around 11.00 am. Basil McCrea and Tom Elliott were supposed to be here. We can stop the scrutiny at this point, if that is the wish of members.
The Committee Clerk:
We could suspend the meeting for a period and see if other members will appear and recommence when we have a quorum to make decisions, if members are minded to take a short break.
The Acting Chairperson:
It is not question of being quorate; it is a question of having a representation from each party, which we do not have at the moment and which I am not sure we will have.
The Committee Clerk:
I suggest that we reconvene at 11.15 am, and I will make some phone calls to find out whether the UUP and DUP representatives will arrive at that time.
The Acting Chairperson:
OK, members, will we suspend the meeting and reconvene in 10 minutes’ time?
Members indicated assent.
Committee suspended at 11.05 am.
Committee adjourned at 11.17 am.