COMMITTEE FOR EDUCATION

OFFICIAL REPORT

(Hansard)

Education Bill

17 June 2009

Members present for all or part of the proceedings:

Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Edwin Poots
Mr Tom Elliot

Witnesses:

Mr Jeff Brown, Department of Education
Mr Chris Stewart, Department of Education

The Chairperson (Mr Storey):

A letter from the Minister covering several issues arrived at 9.10 am this morning. It comprises roughly 30 pages, and I doubt that members will have digested it all before today’s meeting. It contains issues that we need to address, and I ask members to bear that in mind. We will return to the letter next week.

The Committee Clerk:

Members could invite officials to clarify the letter at the meeting.

The Chairperson:

Chris Stewart is always willing to help. At last week’s meeting, the Committee continued its scrutiny of the Education Bill under the acting chairmanship of Michelle McIlveen and Trevor Lunn, and I appreciate their help in the absence of the Deputy Chairperson and myself. Chris Stewart and Jeff Brown are here and may want to answer members’ questions.

Last week, the Committee commenced its scrutiny at paragraph 7 of schedule 1 and considered the remainder of schedule 1 and clause 2. The Hansard report of last week’s meeting shows that the Committee agreed, because of the absence of the education spokesmen of two parties and because only five members were present, not to take any decisions on the Bill. That was entirely appropriate.

I hope that members have had the opportunity to consider my letter of 12 June about making the best use of the Committee’s time on the Education Bill in the run-up to the summer recess. I trust that members are content with the way forward outlined in my letter. In particular, we should try to make decisions on clauses based on the information that is available at the time in order to give the Clerk and his team clear instructions to prepare the draft report, which the Committee will revise in light of its final deliberations in September. That is important.

The Committee will produce a report, and members who sit on other Committees will know that the report will return to the Committee, whereupon we will study it line by line to establish an agreed position. Members should not worry that they may have agreed to matters that cannot be changed at some stage; the Committee will examine the report before it is submitted to the Assembly on 30 September 2009.

Stakeholders’ concerns and the Department’s response to them are set out in detail by individual clause in the spreadsheet. The objective of this meeting is to obtain maximum clarity on members’ views on several issues and to determine whether they are content with the clauses or whether they propose amendments. Members may wish to express that support as proposed changes in principle, suggested rewording or additional wording to clauses.

Moreover, we want to consider what further information or clarification, if any, we wish to have as a matter of urgency from the Department or the stakeholders that may satisfy our concerns. The departmental officials are here today to clarify any points that members want to make.

I note from the draft minutes and the Hansard report of last week’s meeting that Chris Stewart expected a lengthy and detailed response this week from the Minister on the concerns that the Committee raised in its letter of 20 May. The Committee received that response this morning, and members should have a copy of it in front of them.

I propose that the Committee re-examine certain key provisions in the Bill. Schedule 1(2)(1)(b), which we have already considered, deals with the number of members of the education and skills authority (ESA). Are members content that the ESA should have seven to 11 members and a chairman? If not, what numbers do members suggest? Does anyone want to comment on that issue? I ask members to turn to the Minister’s letter. Chris, do you want to comment?

Mr Chris Stewart (Department of Education):

I begin by apologising for the late arrival of the letter; that is not what you or we would have wished.

The Minister addresses ESA membership in the letter. There are two important considerations to draw to members’ attention. She considered carefully the point that was raised by Mr Lunn and by some stakeholders about whether the majority of ESA members should be local councillors. The Minister has given careful thought to that issue and remains of the view that, in the interests of ensuring local democratic accountability, the majority of members of the ESA should be local councillors.

The Minister also considered carefully the representations that were made about the total number of members of the ESA. Although, at this stage, she is not minded to bring forward an amendment to the Bill, she has indicated that she wants to give more consideration to the total number of members of the ESA.

Mr Lunn:

I heard what Chris said, but I do not see it in the letter. The Minister says that some members consider that local councillors ought not to form a majority of the membership of the ESA, but that is as far as the letter goes. I am reading the letter for the first time now. I cannot see where she rules that out.

Mr Stewart:

Please bear with me for a second, Chairperson.

The Chairperson:

It is at the third paragraph on page 2.

Mr Lunn:

I still cannot see it.

The Chairperson:

It says:

“I wish to reflect further on the number of Board members.”

Mr Lunn:

That is fair enough; we are talking about the number of members of the ESA. I can find no reference to the majority of ESA members being councillors except for the first paragraph on page 2 of the letter.

Mr Stewart:

It is there because the Minister has indicated that she is not minded to change the relevant provisions; therefore, she feels that the requirement that a majority of ESA members should be councillors ought to remain.

The Chairperson:

Trevor has expressed a concern about the intention that a majority of ESA members ought to be councillors. Is that correct, Trevor?

Mr Lunn:

Yes. I am curious to know whether I am the only one who has that concern.

The Chairperson:

Have members other comments on that issue?

Mr Lunn:

We can change our minds, I suppose.

The Chairperson:

We will move to the provisions of the Bill to which the merit principle applies. Can the merit principle, which the Department has indicated will apply to all appointments to the ESA, be reconciled with ensuring that ESA members, as a group, are representative of the community in Northern Ireland?

Appointments on merit, particularly if the number of members is small, might result in a membership that was not representative of geography, sex or community background, which might affect public confidence in the ESA.

Do members have views on the merit principle? If members are not content, what amendments do they propose?

Mr McCausland:

I am disappointed by the response on the issue of a membership being broadly representative of the community. The argument is made that that is appropriate for the Equality Commission and the Human Rights Commission.

We are told that this case is different because a representative membership is appropriate for commissions that are operationally independent of Ministers in the Assembly. That is true, but that does not preclude it also being appropriate for an issue as sensitive as education. There is no logic to the Minister’s argument.

In the next paragraph of the letter, the Minister states:

“As I have indicated, the appointment arrangements would be based on the principles … I recognise that it would be important for the ESA membership to have the trust and confidence of the broader community. With this in mind, the appointment arrangements will reflect the need to ensure balance.”

Does balanced mean the same as representative?

Mr Stewart:

In answer to the last question, balanced and representative are two different concepts. The Minister’s letter states that she has considered the suggestion of some members for a board that would be broadly representative but that she does not consider that to be appropriate. Nevertheless, the Minister recognises that, in view of the sensitivity surrounding education as a public service and the importance of the ESA’s enjoying a broad measure of trust and confidence, the membership must not be unbalanced or perceived as such. That is why the Department sought clarification on the extent to which it is possible to combine the merit principle with steps to deal with that issue. The Department considers it possible to retain the merit principle’s centrality to the arrangements to ensure that there is not an imbalance in gender or geography.

Mr McCausland:

My point is that there are two separate issues. Some members asked for a body that would be broadly representative, but the Minister says that the body will reflect the need to ensure balance. What is the difference between a body that is broadly representative and one that is broadly balanced?

Mr Stewart:

The difference is between proactivity and reactivity. If certain provisions required a representative membership, the approach to the appointment arrangements would have to reflect that, and we would have to seek membership of a certain composition proactively and overtly. The proposal that will be reflected in the appointment arrangements is a safety mechanism so that if the application of the merit principle would, without alteration, provide an unbalanced membership, something could be done to address that.

Mr McCausland:

I find that answer confusing. In one case, the end result is a body whose membership is based on merit and that is also representative of the community; in the other, the body’s membership reflects the balance of the community. What is the difference? There may not be that much difference, but experience tells me to get the issue nailed down properly and clearly, but I find it confusing.

Mr Stewart:

The approach that we propose means that it is not possible to predict the outcome, whereas that would be possible were the requirement proactively to seek a representative membership.

Mr McCausland:

Could you end up with a body that was not balanced?

Mr Stewart:

It is impossible to predict exactly how balanced the body would be, because we do not yet know who will apply and who will satisfy the merit principle.

Mr McCausland:

In other words, the phrase:

“the appointment arrangements will reflect the need to ensure balance”

could be removed as it is meaningless: ultimately, appointments will be made on the merit principle and on nothing else.

Mr Stewart:

That is not what we are saying. Let me give a hypothetical example: if all the applicants to the ESA board who satisfied the merit principle were of the same gender, there would be nothing that we could do to achieve a balance. On the other hand, if the top 12 candidates were of the same gender but there were candidates of the other gender who, although not in the top 12, were nevertheless above the line so to speak, it would be possible to depart from strict adherence to the merit principle to ensure a better balanced membership.

Mr McCausland:

If, in extreme circumstances, there were to be no applications from one gender, would the position be advertised again?

Mr Stewart:

That would be likely.

Mr McCausland:

Therefore you could achieve a body with a representative membership.

Mr Stewart:

We will strive to achieve a balanced membership, but it is not the Minister’s policy that we seek a representative membership.

Mr McCausland:

If the attitude is that we cannot even achieve equality in a body that should be representative of Northern Ireland society, we are not getting off to a good start.

Mr Lunn:

I agree with Nelson. We must balance education interests, the needs of the broader community and gender-equality requirements. It looks as if we will have a 12-person body, seven of whom must be councillors, so there will be room for only another five members with whom to balance other interests. It is plain to see that, no matter what we say, that is how it will be. I will watch with interest the Department and the Minister attempt to square the circle, because doing so appears to be impossible.

Mr O’Dowd:

There are several layers to the structure of the ESA. The layer that we are discussing comprises the management body, which will implement departmental and Assembly policy, and this Committee will scrutinise those policies. The management body’s sole function will be to carry out that role; it has a mechanical function. The underlying layers include the sectoral support bodies, which must reflect the sectors that they represent. Below that layer are the local area teams, which will also have a mechanical role, and, below them, will be the committees, which will be able to be representative and balanced in the way that some members wish.

As the Minister’s letter says, many organisations, including health bodies, the Housing Executive and the PSNI, have management structures that are based on the same merit principle on which this body will be based. Therefore, this type of body is not an invention of the Minister, my party or a Marxist guerrilla in the Department of Education; it is fundamental.

Mr Stewart:

How do we spell “guerrilla”? [Laughter.]

Mr O’Dowd:

It is a fundamental structure that might be found in any administration.

The Chairperson:

I accept that such functions would be preformed mechanically, but it is the power that the ESA will have that is the issue. We are not talking about a distant mechanical structure; the ESA will be a very powerful organisation that will be able to say no to schools, despite article 101 of the Education and Libraries ( Northern Ireland) Order 1986. It is an oversimplification to say that the body that we are constructing is merely mechanical.

Mr O’Dowd:

The Minister, whoever that may be, will hold all the power. Therefore, if we want to achieve the balance that you talk about, we will need four Ministers of Education. As things stand, the Minister will hold those powers.

The Chairperson:

We have enough trouble with one Minister, never mind four or five.

Mr B McCrea:

I am with the others on this issue. We are trying to cover a great deal of policy with one body. I did not get a chance to talk about councillors, but my position on that is on the record.

The Chairperson:

Do you want to clarify your position, because our discussions are being recorded by Hansard?

Mr B McCrea:

I am not absolutely convinced that democratic oversight should lie with councillors; that would be asking a great deal. Therefore I record my reservations about that once again.

There seems to be a clash between the merit principle and the equality principle; it seems that we cannot have both. I understand that the original supposition was that appointments would be made entirely on merit, but we are now trying to do too much. It all comes back to the fact that we have not yet resolved what we are trying to do. It is a triumph of process over principle, and we have not settled on how much power should be given to the ESA.

I accept Mr O’Dowd’s point that the Minister already has the power, but, frankly, that is my concern. If that power does not command cross-community or sectoral support, many people will be dissatisfied with the democratic process. I do not wish to be negative about everything; however, the Ulster Unionist Party is concerned about the amount of power that will be given to the ESA, and we are reluctant to support it in its current form.

Mr McCausland:

The powers of the ESA are another matter; we are dealing with its membership. I would like the Committee to be given a short paper on how membership works in the Equality Commission and the Human Rights Commission. Chris talked about being proactive and reactive, but I would like to know how it is done in practice. The Minister is at the top of the pyramid, but it is important that every sector of the community have confidence in the structures at every level. The only way to build confidence is to have representativeness across the board.

There is representativeness on crucial issues such as equality and human rights, and there is no more crucial issue than education. Various sectors have expressed passionate and earnest views to the Committee about the importance of education. Education is especially important; it is at the heart of every home and every family; it is different from libraries, the Sports Council and other bodies. We need to get the system right, and there needs to be representativeness in the membership of the ESA.

Mr Poots:

I approach the matter from a slightly different angle. The Minister proposes that the ESA board should have 12 members and says, in effect, that a larger board would be ineffective. We have five education boards, each of which has 35 members, so it seems that larger boards work to a greater or lesser degree. An ESA board of 12 members is not sufficient to reflect adequately the diverse range of views in education across Northern Ireland; we need to move away from such a small figure.

I have a problem with the Minister’s proposal to establish subgroups to feed into the main board of the ESA, whereas a larger board could accommodate the necessary subgroups. However, the Minister proposes to bring in far more than 17 or 19 people, which would have been an appropriate board size.

Therefore, the Minister needs to reflect seriously on whether to opt for a small board. Education is far too diverse, as Mr McCausland said. We are not talking about the Housing Executive; the plethora of issues that exists in the education sector does not exist in the housing sector. Having an education and skills authority with a small, unrepresentative board would be hugely damaging to education.

The Chairperson:

With regard to the merit principle, how would you defend against complaints from very highly qualified applicants who cannot be appointed because of the need to achieve balance? Would you have to re-advertise, as has been suggested?

Mr Stewart:

If an insufficient number of candidates applied or an insufficient number of candidates satisfied the requirements of the merit principle, then, yes, we would have to re-advertise.

The Chairperson:

Nevertheless, if a raft of highly qualified people applied but you did not achieve balance, what would you do?

Mr Stewart:

It is important to remember that we cannot depart from the merit principle to the extent that we would appoint someone who is not above the line. Anyone who is appointed to the membership of the ESA will satisfy the merit principle. Yes, some will satisfy it more than others, and it may be necessary to depart from strict merit order, but that is in keeping with the Commissioner for Public Appointment’s guidance and code of practice.

Mr D Bradley:

I made my views on this subject known previously. Having a bigger board with somewhere in the region of 20 members would make it easier to achieve the necessary range of expertise and balance, and the board could still have a majority of councillors.

Mr O’Dowd:

Mr McCausland has requested a paper, which I think would be useful, but it might also be useful for members to get a copy of the commissioner’s code of practice on appointments. There has been an overemphasis on the word “balance”, and it would be useful to look at the matter in the context of the commissioner’s code of practice.

The Chairperson:

We are looking at paragraph 2 of schedule 1, which deals with membership. Obviously, there is no consensus on the number of members of the ESA being between seven and 11. There is a view that there should be more members than that. There is also the question of whether the Committee needs to suggest that an additional sub-paragraph be added. Paragraphs 2(2)(b) states:

“that each member has experience in a field of activity relevant to the discharge of the functions of ESA.”

Is there a requirement for an additional sub-paragraph? The difficulty is that the letter that we received this morning from the Minister tells us that she will reflect on the number of board members, so we still do not know what the definitive position will be.

Mr Lunn:

We could coalesce around a particular number. Edwin said 17 or 19 and Dominic said 20. There should be a figure in that range that we can agree on and that would allow for the various interests to be more easily represented.

The Chairperson:

Is the Committee agreed that the figure should be larger than what is outlined in the Bill?

Mr Poots:

We need to lay down a marker. If the Committee were to say that the membership should be more than 11, the Minister may come back with 12 or 13. I am easy with a figure of in and around 20, and whether it is 18, 19 or 21 is not a big issue for me. The education system is diverse; it includes the Catholic system, the state-run system, the integrated system and the Irish-medium system, so we will not get away with that smaller number, particularly given the number of public representatives that are to sit on the ESA. It is just not feasible.

Mr B McCrea:

My concern is about what we want that body to do. If it starts out as being purely managerial and mechanical, a different composition would be needed. If it becomes involved in bringing together community and sectoral issues, a much broader view would be required. My fear is that we are just getting layer upon layer of red tape, and that no one takes decisions.

I thought that the idea that we wanted to convey in the Bill is that we have to take decisions about the demographic downturn and all sorts of other issues. It seems to me that this Committee is trying to design a horse but will end up with a camel. There is no clear consensus around how we will tackle the diverse and challenging views on education, and we will not get a good structure until that consensus is reached.

Mr Poots:

We are talking about the composition of the board. We should stick to talking about that rather than going down some by-path meadow that is not really relevant at present.

The Chairperson:

We have to try to work our way through the schedule methodically, if we possibly can. I do not think that the Committee is going to come up with any suggestions for an additional sub-paragraph for inclusion in the paragraph on membership.

Mr O’Dowd:

Is the Committee minded to write to the Minister about its various views? There have been discussions about numbers. Some members feel that we should have 15, 17 or 19 board members. I note that the Minister said that she wants more time to reflect on that. However, the Committee could ask the Minister to come forward with a definite number.

The Chairperson:

I think that that was Edwin’s suggestion, rather than to set an arbitrary figure. We are certainly talking about more than seven or 11 board members.

Mr Poots:

The board of the ESA should have a skills base. It should have people with experience in corporate and financial matters and educational psychology. Fewer board members would not provide that range of experience, and it would then be necessary to get into the issue of additional support. I suggest that we try to get the entire range of experience on the one board.

The Chairperson:

That is, in a sense, reflected in paragraph 2(2)(b) of schedule 1, which states:

“that each member has experience in a field of activity relevant to the discharge of the functions of ESA.”

Mr Lunn:

I hear the suggestion, but I am a bit concerned. The Minister has said that she is prepared to reflect on the size of the board, and the Committee seems to have accepted the suggestion that we should ask her to reflect on it. We are getting close to the finishing line, so perhaps it is time that we started to make some firm suggestions to the Minister. The Committee should be writing to her to say that although we take on board her point that it is possible to increase the number of board members by Order, the board should comprise at least 18 members at the outset.

The Chairperson:

I am reluctant to get the Committee to agree a figure. Where does one draw the line — at 18 or 20?

Mr Elliott:

It is an issue that might resolve itself when the Minister comes back to the Committee.

The Chairperson:

That would probably be more productive. The letter states that the Minister wishes to reflect on the matter. The departmental officials here today and the Minister know that the Committee is not happy with the figures outlined in the Bill. Therefore, we have to find agreement between what is in the Bill and where we want to be. I believe that we can get that agreement. I am a bit reluctant simply to pull a figure out of the hat. The Committee agrees that the figure should not be as contained in the Bill, but we are not agreed on what it will ultimately be.

Mr Lunn:

It will come back as 13.

Mr Poots:

The information that Chris will take to her will show that that would not be acceptable.

Mr D Bradley:

Can the Committee write to the Minister asking for the outcome of her reflections on the issue?

The Chairperson:

Yes.

Mr McCausland:

We are requesting information on the Equality Commission and the Human Rights Commission. Will we do anything more today on the issue of the representativeness of the board of the ESA, or will we leave it until we receive that information?

The Chairperson:

There is a clear difference, whether it is on emphasis or in interpretation, between members’ views on that issue and the Department’s suggestion. We need to consider whether we want to do something that expands and clarifies the issue of the ESA’s representativeness.

Miss McIlveen:

I am mindful that we wrote to the Minister on 20 May and received correspondence only today. We should, surely, make it known that we require urgent responses if we intend to deliberate and possibly make amendments.

The Chairperson:

That should be a given. Some of the information has been in the domain for six months.

The Committee Clerk:

I suggest that, procedurally, the final limit should be Friday 26 June. The Committee must bring recommendations on amendments to the House by 30 September. If the Committee is to engage in an iterative process with the Minister, she needs to respond to the Committee’s issues on a weekly basis.

The Chairperson:

Paragraph 2(3) of schedule 1 states:

“The Department may by order amend sub-paragraph (1)(b) by substituting for the numbers specified there such other numbers as may be specified in the order.”

Chris, will you explain the meaning of that?

Mr Stewart:

It is a safety-net mechanism. If we discover that the ESA’s board is not big enough, we can add to the membership.

The Chairperson:

Can it also reduce the membership?

Mr Stewart:

It could, technically, reduce it.

The Chairperson:

If it goes one way, it can also go the other.

Mr Stewart:

That is correct, the provision could be used to reduce the membership, but I have heard no argument anywhere that the proposed numbers are too large.

The Chairperson:

Are members happy with that provision? Personally, I have no issue with it.

Mr Poots:

Can the Minister change the membership without Assembly approval?

The Chairperson:

The legislation states:

“The Department may by order amend sub-paragraph (1)(b)”.

Will you clarify the procedural implications of the phrase “by order”?

Mr Stewart:

The Order would be subject to Assembly control by the negative resolution procedure. Therefore, it would come into effect unless the Assembly voted against it.

The Chairperson:

That is a difficulty for some members.

Mr D Bradley:

What happens if that situation arises during the summer?

The Chairperson:

That could cause a difficulty.

Mr Stewart:

I would need to check that, but I am sure that the Assembly will have considered that matter and that that would not be possible.

Mr B McCrea:

The issue is whether the Order would be subject to a cross-community vote.

The Chairperson:

What if it were subject to negative resolution?

Mr B McCrea:

It would pass unless it is defeated by a cross-community vote.

The Chairperson:

What if it were subject to affirmative resolution?

Mr B McCrea:

Making the Order subject to affirmative resolution would be a stronger safeguard.

Mr Stewart:

That is correct; a cross-community vote would happen only if a petition of concern triggered the cross-community vote mechanism.

Mr B McCrea:

It is possible that if the Minister amended the numbers by Order, a petition of concern would be submitted. Making the Order subject to affirmative resolution would create more confidence in the process.

Mr D Bradley:

What are the likely circumstances under which such an Order would be used?

Mr Stewart:

It would be used if we found that we had significantly underestimated the number of members required to discharge the responsibilities of the ESA. It is a safety net in the event that we get our homework wrong and find that the ESA’s effectiveness is impaired by having too few members.

The Chairperson:

But, equally, if it is a safety net to deal with concerns, the regulations could be subject to affirmative resolution rather than negative resolution.

Mr Stewart:

Yes.

Mr B McCrea:

I am happy to suggest that the provision would be OK if it were subject to affirmative resolution. That does not seem to be a problem.

Mr O’Dowd:

Before I agree to anything, I would like to see a written report that explains the difference between negative and affirmative resolution. We are getting information from various angles, but I would like to hear from the experts.

The Chairperson:

To return to an earlier example, my understanding of the difficulty that we face with the regulations on teacher redundancies is that the Department could lay the regulations over the summer recess. We could pray against them but they would come into effect because they were laid during recess under negative resolution procedure. However, if they were subject to affirmative resolution procedure, that scenario would not arise because cross-community support would be required. Is that correct?

The Committee Clerk:

As was pointed out, the requirement for cross-community support would be triggered only by a petition of concern, and the House would then affirm the regulations under affirmative resolution procedure. The Chairperson is right; if the particular regulations that were referred to earlier are laid over recess under negative resolution procedure, they could come into operation under the 21-day rule. However, under a 30-day rule that applies when the House is in operation, the House could pray against the regulations in September or October, depending on the statutory period for praying against the rules. However, the regulations could be brought into operation over the summer and, of course, utilised.

The Chairperson:

That is the difficulty. We could be praying against regulations that have already been introduced. If members are happy, we can request a paper on that. Who would provide that?

Mr O’Dowd:

Perhaps the Bill Office or a research officer could provide that paper.

The Committee Clerk:

I can certainly provide information on the negative and affirmative resolution procedures.

The Chairperson:

We will note down that there is a suggestion that the regulations should be subject to affirmative resolution.

Mr B McCrea:

I would like it to be recorded that I would be much happier if the regulations were subject to affirmative resolution.

Mr O’Dowd:

Can we also check whether a similar provision is included in the latest RPA legislation for other Departments? .

The Chairperson:

Before we go any further, I want to clarify an issue with the Clerk; we are now moving on to paragraph 7(1) of schedule 1, yet we still have to deal with paragraphs 3, 4 and 5.

The Committee Clerk:

At last week’s meeting, the Committee went through the other paragraphs and had no substantive comments to make, but there was some debate on paragraph 7.

The Chairperson:

As there was no comment on the paragraph entitled ‘Tenure of office’, we shall move on to the next paragraph, ‘Remuneration and allowances of members.’ That is a very touchy subject, to which members should have regard. Paragraph 5 is entitled ‘Employees’, and it sets out the role of the chief executive, and so on. The next paragraph is entitled ‘Remuneration, allowances and pensions of employees’. That brings us to the paragraph 7(1) of schedule 1, which falls under the heading of ‘Committees.’ Are there any comments on that?

Mr Elliott:

Can we go back a little to paragraph 5(4)? It states that:

“ESA shall not appoint a person as chief executive unless the Department approves the appointment.”

What will be the process for that appointment? Does that mean that the ESA board will appoint the chief executive but that the appointment will then need the approval of the Department?

Mr Stewart:

Yes. The ESA will carry out the necessary competition; it will choose a top candidate and then ask for the Department’s approval to make the appointment formally. The reason for that — and it is not as draconian as it might first appear — is that the chief executive of the ESA will be the accounting officer of that organisation and the Department needs to confirm him or her in that role. It is very important that the Department is in a position to do that.

Mr Elliott:

Is that normal procedure? Not being a member of any of the education and library boards, I do not know how they operate. Do they appoint a chief executive, or is that appointment open to scrutiny by the Department?

Mr Stewart:

The position with the education and library boards is the same.

The Chairperson:

Therefore, an education and library board carries out the interviews and makes all the arrangements in relation to the position. It then appoints the successful candidate and that appointment is sent to the Department for approval?

Mr Stewart:

That is correct.

The Chairperson:

OK. Are you happy enough with that Tom?

Mr Elliott:

Yes. Thank you.

The Chairperson:

Concerns were raised in the House this week about how Queen’s University, a public body, has, it seems, given its staff a large pay increase. In paragraph 4, which deals with the remuneration, and allowances of members, it is stated that:

“ESA shall pay to its Chair and other members such remuneration and allowances as the Department may determine.”

Does that cover salaries or additional expenses?

Mr Stewart:

That paragraph applies solely to the members of the ESA. Paragraph 6 contains a similar requirement regarding the salaries of employees.

The Chairperson:

Paragraph 6(1) states that:

“ESA shall pay to its employees such remuneration and allowances as it may determine.”

Mr O’Dowd:

If there was an increase in board membership, would there be financial implications?

Mr Stewart:

Yes, there would be. Assuming that the remuneration levels remain the same, increasing the number of members would also increase the cost.

Mr O’Dowd:

What sort of remuneration levels are we talking about?

Mr Stewart:

I would have to check that and come back to you. There has been thinking in the Department as to what those levels should be, but I am not aware of the detailed figures.

The Chairperson:

Are the salaries, remuneration and allowances set by the Department, DFP or joint negotiating councils? Who ultimately has oversight or control?

Mr Stewart:

In a sense, it would be all of the above. The grading of senior posts in the ESA and the level of remuneration for those posts will be based on the outcome of a formal process of weighting and assessing the content of the posts. The grading of other posts would probably be fairly standard and would be based on recognised grades and structures in the education sector. However, all of that is subject to the approval of the Department and, thereafter, the approval of DFP.

Mr D Bradley:

Presumably the post of chairperson of the ESA is not a full-time salaried post.

Mr Stewart:

It is certainly not salaried. Again, I would need to check the details, but my understanding is that it is not intended to be a full-time position.

Mr D Bradley:

Would the remuneration for that post include — and I hate to use the word — expenses?

Mr Stewart:

Yes. Expenses would be part of that remuneration. I have no doubt that, in the current climate, the Department and the ESA will want to ensure that there is both robustness and transparency around the payment of expenses to anyone associated with the ESA.

The Chairperson:

That brings us to the paragraph 7, which is entitled ‘Committees.’ At last week’s Committee meeting, we explored with officials the possibility of amending paragraph 7(1) to read “ESA shall establish committees”, instead of “ESA may establish committees”. Subject to legal advice, Mr Stewart did not see that as being problematic; at least that is what it says on the piece of paper in front of me. Do you have an update on that?

Mr Stewart:

Sadly, I have to report that my optimism of last week was misplaced. Members will see from the Minister’s letter that she has made it clear that she does not see a need to specify the local or committee structure of the ESA in the Bill. The difficulty with the potential amendment that we discussed last week was that the use of the word “shall” starts to take you down that line. On further reflection, and with the benefit of some informal legal advice, we concluded that it simply would not be possible to make that amendment. If you say that an organisation shall do something, you really need to go at least one step further and say something in the legislation about what it is that that organisation shall do. Therefore, the amendment would commit us to specifying the committee structure in the Bill, and the Minister does not feel that that is appropriate.

The Chairperson:

Surely that goes right to the heart of what we are constructing? We are establishing an organisation that may or may not decide to establish committees. If the wording remains as it is, the ESA may establish committees. The inference is that it could equally decide that it will not establish committees.

Mr Stewart:

The Minister hopes to reassure the Committee on that point in one of the papers attached to the letter; she sets out clearly the Department’s thinking on what it will require the ESA to do as regards committees.

The Chairperson:

But, Chris, if it ain’t on the tin, it sometimes ain’t in the tin. That is the problem. So that members do not think that I am going on one of my rants, let me say that it is not about this Minister; it is about whoever the Minister may be in any future Administration. The Bill says that the ESA “may” establish committees. Therefore, as there is no legal requirement on the ESA to establish committees, a Minister could decide that there is no need to have them, or the board of the ESA could decide that it does not need them because it has all the information and can do the work itself.

Mr Stewart:

There is no automatic requirement in the Bill, but if the ESA were to attempt to make such a decision, the Minister would direct them otherwise. To carry the Chairperson’s analogy a little further, the Minister proposes that rather than writing it on the outside of the tin, to take the lid of the tin and show you what is inside.

Mr D Bradley:

You said earlier that outlining the structure of the committees would be problematic. Why would it be problematic?

Mr Stewart:

The Minister does not wish to specify the committee structure in the Bill because it would be inflexible. If it became necessary to change the structure of the committees as a result of the experience of operating the ESA, then it would be necessary to amend the primary legislation. That is, of course, not impossible, but the Minister does not feel that that allows for sufficient flexibility in the organisation, particularly in its first year or two of operation.

Mr D Bradley:

The Minister has specified the number of members and a safety net has been included. Could the same process not be applied to the structure of the committees?

Mr Stewart:

It is one thing to specify numbers and include a mechanism to change the numbers, but specifying the structure of the committees would involve much more detail. I cannot think of an easy way of creating the same sort of safety-net mechanism to allow that structure to be changed other than by amending the primary legislation.

Mr D Bradley:

There is a safety-net mechanism that would allow for a change to the number of members of the board of the ESA, so I do not see why there could not be a similar mechanism that would allow the committee structure to be changed by an Order.

Mr Stewart:

Although it would be difficult, it may be possible. If you are talking simply about the number of local committees, it would be possible to have a similar mechanism. However, that would not tell you anything about the configuration of the local committees or the other committees that the ESA would need for human resources, audit, risk management, and so forth.

The Chairperson:

We must clarify that. On page 13 of the Minister’s letter is the acceptance that:

“The ESA will also establish 11 Local Committees to work with the LATs”.

Are you saying that those 11 committees are being taken off the tin and that we are looking in?

Mr Stewart:

Yes.

The Chairperson:

The ESA is not, however, under any requirement to establish 11 committees. That may be the intention of the Minister, but the ESA may decide that it needs only six committees, not 11.

Mr Stewart:

You are absolutely correct.

The Chairperson:

A potential safeguard is similar to the one the Committee suggested during an earlier discussion; namely that an affirmative resolution could be set out in regulations.

Mr Stewart:

I was about to say that the likely mechanism would be regulations, and the Assembly could decide to make the regulations subject to the affirmative resolution control procedure. That is technically possible, but I am obliged to point out that it would be an extremely unusual approach. I am not aware of such an approach having been taken for any other of the bodies to be established under the RPA.

Mr Lunn:

The Minister’s comment on page 13 is that the ESA “will” not “may” establish.

The Chairperson:

In fairness, that is the Department’s paper.

Mr Lunn:

Last week, I suggested that the word “shall” might be substituted for “may”. Frankly, having listened to all that has been said, I could not care a less.

The Chairperson:

I hope that Hansard records that.

Mr Lunn:

The ESA cannot exist without committees; that does not need to be confirmed because it is blatantly obvious. Whether the word is “may” or “shall”, the ESA is going to have to establish committees.

Mr B McCrea:

Is that a proposal that we should insert, “is going to have to?

Mr D Bradley:

That means “shall”, does it not?

Mr Lunn:

Or, “The ESA will have no option but to”.

At the top of page 13, the Minister suggests the establishment of four further important committees, but the Bill leaves it open in such a way that they can be designated and formed according to the requirements of the ESA as it evolves. We are becoming unduly suspicious about what is in the tin.

Mr O’Dowd:

Trevor helpfully pointed out that I raised the issue last week; I wish that I had not. We could be definitive at this stage by specifying “shall” and thus determining the structure of the committees; however, ahead of the RPA making progress on councils, particularly community planning in councils, that may restrict the input of local councils. Local planning that will work in Fermanagh will not work in north Belfast or west Belfast. It would be more helpful to allow local areas to find local solutions and the ESA to work locally on its committee structures.

As for the ESA backtracking on its commitment, it exists to carry out the policies and decisions of the Minister; to the best of my knowledge, it is not a policy-making body. It is not contrary to any of the political parties’ policies to have coterminosity with local structures and Government agencies. Therefore, 11 seems to be a sensible number of committees.

The Committee Clerk:

That is where we are on membership.

The Chairperson:

The other element is the make-up of the committee, because schedule 1(7)(2) says:

“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.”

And 1(7)(3) says:

“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.”

That is reasonably straightforward. We do not have the composition of the membership of the local committees.

Mr Stewart:

No; that will be an operational matter for quite some way down the line.

The Chairperson:

I refer members to page 13 of the Minister’s letter, where she talks about:

“These Committees will ensure that the ESA has a strong interface with local communities and that the views of local representatives are communicated to inform decision-making at Board level. They will comprise a number of elected representatives and members with local knowledge and expertise — a mixture of educationalists, business sector, community, parents and pupils — to ensure that the full range of views are taken on board. The configuration will be that each local team (other than the Belfast team) will be associated with two local committees.”

Do members wish to comment on the ESA establishing local committees? Should the Department’s position continue to be that the ESA committee arrangements should not appear in the Bill, are members content with such an approach or would they wish the Bill to require the Department to create and fix the number of local committees or to spell out their role and function and what regard the ESA and its local manager and delivery unit should have to local communities? Chris did say, although with a caveat, that he deems it highly irregular to have regulation and affirmative resolution to deliver such a provision.

Mr Stewart:

I would not, perhaps, use the word “irregular”. It would be perfectly proper for the Assembly to take such a course of action, but the Minister would want to know from the Committee the reason for adopting such an unusual approach, as it is not taken elsewhere in the public service.

The Chairperson:

Another approach could be the inclusion of enabling provisions in the Bill for the Department to make regulations covering the composition, role and operation of local committees, and, perhaps, the ESA’s main sub-committees — the mechanism that the Department of Education proposes for the education advisory forum, which has been suggested. A component could include a timing requirement, possibly linking the commencement of part or all of the Bill to the making of the regulations. Members might also wish to consider where such regulations should be subject to positive or negative affirmation by the Assembly. That is an attempt to condense all the discussion that we have had.

Mr B McCrea:

Chris said that the Minister would want to know why. There is benefit in agreeing significant elements of the Bill by positive resolution because that allows us to develop a framework, and as working practice and trust builds, other things could be done. We should not let that opportunity to move things forward pass.

The Chairperson:

We move on to schedule 1(7)(2) and 1(7)(3). I note that the members who were present at last week’s meeting indicated that they were content with those paragraphs. Are those members who were not present last week content?

Mr B McCrea:

Where are we?

The Chairperson:

We are still at schedule 1(7)(2) and 1(7)(3). Are members content with those provisions?

Members indicated assent.

The Chairperson:

We move to schedule 1(8) “Delegation to committees and staff”. 1(8)(1) permits the ESA to delegate any of its functions to any ESA committee or employee; schedule 1(8)(2) permits an ESA committee to delegate any of its functions to any ESA employee; 1(8)(3) makes such delegation of functions subject to law and to any regulations that the Department may make under 1(8)(4). Last week, after some discussion, members indicated that they were content with that approach. Do members wish to make any other comments?

Mr Elliott:

I assume that that is a working arrangement. The ESA will need to delegate power, but the delegation of too much power can lead to a loss of control. I am not sure what safeguard could be added to prevent that.

The Chairperson:

It is similar to other issues that we have discussed. Indeed, Chris Stewart said earlier that the approach is no different from what has happened before. Is that delegation of powers similar to what happened in the Health System?

Mr Stewart:

I cannot say that it is exactly the same in all cases. However, nothing in schedule 1(8) is particularly unusual compared to other organisations or to what has happened in the past. It is a fairly standard provision and approach.

The Chairperson:

Are members content?

Members indicated assent.

The Chairperson:

By virtue of clause 51, the regulations are subject to negative resolution only. Therefore, unless there is sufficient cross-community support for a motion that prays against the regulations, they will become law after being laid in the Assembly for a set period. Would the Committee prefer the Bill to require an affirmative Assembly resolution for regulations that necessitate certain ESA functions to be exercised by an employee on behalf of the ESA? Does schedule 1(8)(3) simply refer to the delegation of powers?

The Committee Clerk:

Yes.

Mr B McCrea:

As a general principle, all regulations should be subject to affirmative resolution.

Mr Stewart:

It is not for me to comment on policy, but such a technical arrangement would be perfectly possible.

The Chairperson:

We can return to that issue when we get the relevant paper.

The Committee Clerk:

That paper will outline the procedure on what will happen in the House.

The Chairperson:

It will also explain the issues concerning clause 51, which is important.

The Committee Clerk:

At present, that is subject to negative resolution.

The Chairperson:

We will return to that issue.

Mr Lunn:

Does negative resolution allow things to happen more quickly than affirmative resolution?

The Chairperson:

Yes.

The Committee Clerk:

The two types of positive statutory rules are when a regulation, for example, is affirmed or confirmed by the House. The House must pass a motion, but the problem is that the Minister will be there when that happens.

Mr O’Dowd:

Am I correct that, under affirmative resolution, the House would have to pass a motion every time the ESA asked Joe Soap to do something?

Mr Lunn:

That worries me too.

Mr Stewart:

The Committee Clerk correctly outlined the difference. The affirmative resolution procedure provides a stronger measure of Assembly control; it means that the regulations that govern what the ESA may or may not do would not come into operation unless the Assembly had formally given its approval. The negative resolution procedure is not as strong a means of control; it means that regulations or an Order could come into force unless the Assembly voted against it. The difference is the default position in each case.

Mr B McCrea:

Many things have to be done in the process of running a Government, among which is the making of regulations; however, it would be impractical to fill the Assembly’s time with such matters. Therefore, it is right and proper to use negative resolution to deal with non-contentious issues. The essential difference in this case is that significant issues are being discussed for the first time, and it would engender confidence and buy-in from people if, in the first instance, we used affirmative resolution. If the regulation were a sensible one, once powers had been deferred that would be the end of the matter.

My difficulty is that negative resolution, allied with a petition of concern, means that proposals could be put forward that are against the majority will of the Assembly, even if they do not run counter to the rules and regulations. That would not be constructive or helpful. The clearest and most appropriate approach, given the contentious and essential nature of our work, is affirmative resolution. Once we had gone through the process, the regulations would be on the statute book.

Mr O’Dowd:

Now we get to the crux of the matter. He is trying to undermine the principles of the Good Friday Agreement and the St Andrews Agreement. I wondered what he was at, but now I see it.

If I am reading it right, we are being asked, under schedule 1(8)(4)(a), to accept that the Department, by way of negative resolution, can

“require prescribed functions of ESA to be exercised on its behalf by a prescribed employee of ESA; “

and under schedule 1(8)(4)(b) the Department can:

“regulate the appointment by ESA of an employee for the purposes of exercising such functions.”

Under affirmative resolution, would every such decision be subject to an Assembly vote?

The Committee Clerk:

I will try to clarify that. Under negative resolution, an order still has to be laid and must go through the usual statutory period. It is not a quicker process, by any means; it takes exactly the same time. The only difference under affirmative resolution is that the House must make a choice at that point; it cannot just pass the resolution. The summer period, when the House does not sit, adds a further complication in that the Assembly cannot stop a negative resolution coming into operation. Under an affirmative statutory rule, the House must declare that it is content, and either affirms or confirms the resolution.

The Chairperson:

This is not about undermining the Belfast Agreement or the St Andrews Agreement; it is about creating confidence. The point that Basil was trying to make was that on contentious issues — and education is very contentious — affirmative resolution gives the Assembly more control than negative resolution. That is at the heart of the issue.

I do not know whether the Bill Office can provide examples of the number of times we have used negative or affirmative resolutions. I guarantee that if we examine the procedures of the House we will discover that issues of concern were dealt with by affirmative resolution rather than negative resolution.

Mr Lunn:

I am glad that we had this discussion, because I am trying to get my head round it all. Are we over-complicating things? Whether an issue is resolved through negative or affirmative resolution, the House has the final say.

The Chairperson:

No, it does not.

Mr Lunn:

Tell me why not.

The Chairperson:

Let us go back to an example of which I have slightly more experience, the draft regulations on pensions, which we discussed earlier. They can be implemented using negative resolution because recess is approaching. Some — and I say “some” to keep myself in the clear — Committee members may say that there is a problem with those regulations; nevertheless, the Department will lay the regulations before the Assembly where they will sit for the stipulated 28 days before coming into operation.

Mr Lunn:

Can Members challenge them during recess?

The Chairperson:

Not until we come back in September. However, by the time that we could challenge or pray against them using a petition of concern, they would already be in force. To put it simply, the teachers would have received payments and the financial arrangements would be in place, and there would be nothing that we could do about it. That is the difficulty. I hope that I have not given a false interpretation.

The Committee Clerk:

That is the case. There could be a prayer of annulment in September or October or at any time within the statutory period, and that would annul the statutory rule. However, it could be in operation from the end of July until the House decided to annul it.

Mr B McCrea:

If regulations were introduced by negative resolution, a petition of concern could be made against them that one would have to win in order to overturn the decision; however, if the issue involved required a petition of concern needing cross-community support, one side might not be able to get that; it acts like a double negative. Therefore a simpler way of building trust would be affirmative resolution. If the regulations were sensible, why would anybody vote against them? They would go through on the nod, which happens quite often. For example, we take as read motions to suspend Standing Orders. However, one would wish to ensure that the will of the Assembly was respected on contentious matters.

Mr O’Dowd:

In either case, the will of the Assembly would be respected because the rules that govern the Assembly allow for petitions of concern. If a valid petition of concern were tabled and an Assembly vote on it carried, the will of the Assembly is respected. Those are the rules that govern the Assembly.

Mr B McCrea:

I cannot disagree with Mr O’Dowd; however, I was pointing out that when dealing with contentious issues or with matters that are being introduced for the first time, affirmative resolutions should be used to build trust. If matters are not contentious, have been on the statute books and in regular use for a long time or are merely procedural, people have fewer concerns. My position is clear, and at least we now understand the mechanism, which no doubt the Committee Clerk will explain further. Affirmative resolution creates much greater confidence, and I have no doubt that the officials will confirm that.

Mr Elliott:

I thought that Basil had clarified things, but then John come in and put a different slant on them. With respect to petitions of concern and cross-community votes in conjunction with negative or affirmative resolutions, am I right that if there is a negative resolution to a petition of concern, even if the House voted against the petition of concern, the outcome will still be an affirmative resolution? Is that right?

The Chairperson:

Yes.

The Committee Clerk:

A cross-community vote must be honoured.

Mr Elliott:

Moreover, even if there were an affirmative resolution to a petition of concern but there was no cross-community vote, the petition of concern would be negatived. Is that correct?

Mr B McCrea:

Correct.

Mr Elliott:

Thank you.

The Chairperson:

That explanation was even simpler than Basil’s.

Mr Poots:

If we went the route that Mr O’Dowd proposes — and he seems to be spotting reds under the bed — we would vest all power in the Minister; if we took the other route, we would vest power in the Assembly. The Minister of Education has substantial power. In the interests of public accountability, the Committee should ensure that the Assembly has as many teeth as possible to monitor the Minister’s actions. If changes must be made to the membership of the ESA, the Assembly should have the clout to say yay or nay to matters of concern.

I suspect that it will not be an issue, and I suspect that most proposals will go through on the nod; however, in certain instances, that may not be the case. If the Minister has the powers that are suggested through negative resolution, the Minister will only need a particular party to sign a petition of concern to enable her to ride roughshod over the Assembly. That is not appropriate.

Mr O’Dowd:

I do not want any Minister to ride roughshod over the Assembly or to have unlimited power; all Ministers should be accountable to the Assembly. However, I am concerned at attempts to undermine the authority of a particular Minister. When parties raise concerns about the day-to-day running of a function of a public body, I become more concerned, because this provision is similar to clauses in the health RPA and other RPA Bills. I have reason to be concerned when members raise silly concerns about how to tie the Minister down or tie down the operation of a public body in the Assembly.

Mr Elliott:

They are not silly concerns; they are genuine.

Mr O’Dowd:

What is the genuine issue in this case?

The Chairperson:

Let us put some flesh on that bone. Schedule 1(8)(4)(a) says:

“The Department may by regulations—

(a) require prescribed functions of ESA to be exercised on its behalf by a prescribed employee of ESA”.

What are the possible “prescribed functions of ESA”?

Mr Stewart:

That whole provision might be less than the sum of its parts. For example, regulations could be established to ensure that certain finance or audit functions rest with someone who is professionally qualified in that discipline. I mentioned an example briefly last week: it might be prudent to ensure that the director of children’s services had responsibility for child protection and child welfare matters in the ESA. I hope that the ESA will cover that without the need for regulations, but they can be used if necessary.

The Chairperson:

The argument is not about a particular Minister; it is about creating confidence that the process is open and transparent. Edwin made the point that, by and large, most of the provisions will be passed anyway and that it is merely a safeguard.

Mr Poots:

Mr O’Dowd needs to calm down. This is not an underhand means of getting at a particular Minister. The Committee wants to secure as much accountability as possible for the public through the Assembly and the Committee. We will not dismiss sensible proposals from any Minister because of who that Minister is. If a proposal is submitted to the Committee or to the Assembly that is argued rationally and is in the best interests of education and the ESA, it will be passed. It is as simple as that. The Minister’s identity will have no bearing. However, if a Minister submits a proposal that is not in the best interests of education, I strongly reserve the right for the Assembly to hold that Minister to account and to challenge the proposal. We should not leave ourselves open for a Minister to drive proposals through without public accountability.

Mr O’Dowd:

In broad principle, I agree with Mr Poots that Ministers should not be able to drive proposals through. However, he needs to reread the Good Friday Agreement and the St Andrews Agreement if he wants to create a scenario in which Ministers have no power.

My concern is not necessarily about affirmative or negative resolution; rather it is about why the members sitting opposite me feel the need, as we discuss every clause in the Bill, to find ways of preventing the Department or the ESA from taking a decision on the most irrelevant parts of the role of an organisation. If those parties are sincere in their argument, then the Committee should recommend — perhaps to the Committee on Procedures or another Committee — that the negative resolution procedure be removed from the statute book altogether, that no Department use that procedure and that the Assembly deal only in affirmative resolutions. That is really what you are saying.

Mr B McCrea:

I would not demur from that point of view. I agree with what Mr Poots has said, and it is right that the Members of the Assembly should have the opportunity to express their views. There is a diversity of views on the ESA, but there is also a requirement to get something for the ESA, and it may be possible that something like that would help to move things forward. There is no need for knee-jerk reactions or thoughts that we are trying to do something that would undermine the St Andrews Agreement.

If nine out of 10, or 99 out of 100, issues go through on the nod, that is fine, but on the issues of greater importance, surely it is important that we have discussion and buy-in. If things are pushed through against the will of large sections of the Assembly, we could end up with a process in crisis. Frankly, I am surprised that Mr O’Dowd does not understand the point that is being put forward. It is a way of trying to create a balanced view, which I believe will help us to move the bigger picture forward.

Mr O’Dowd:

If that proposal is accepted, will you support the Education Bill?

Mr B McCrea:

I have already signalled to the officials that our concerns are not about the ESA or streamlining or efficiencies. Instead, our issue is that there appears to be people with a particular point of view that people who we represent disagree with, and we would like to find some way of that being taken into account. If a mechanism can be found in which the democratic process works, we would be prepared to give our support. If the ESA looked like it was going to be a bit more balanced and if there was a bit more Assembly control, we could find our way round to supporting it. Is that clear enough?

Mr O’Dowd:

No. [Laughter.]

Mr Stewart:

Someone asked about the provisions in the RPA legislation for the health sector. The Health and Social Care (Reform) Act (Northern Ireland) 2009, like the Education Bill, contains a mixture of Orders and regulations that are subject to both negative and affirmative resolution. As is the case with the Education Bill, the more commonly used mechanism is the negative resolution procedure. There are, I think, three occasions in the health legislation when it is specified that the affirmative resolution procedure should be used, and the one example in the Education Bill is similar. In all cases, that procedure is used when the regulation or Order would allow the Department to change primary legislation directly. By convention, the Department would not normally be allowed to do so without an affirmative resolution of the Assembly. Therefore, there is a consistency between the Health and Social Care (Reform) Act ( Northern Ireland) 2009 and the RPA Education Bill.

The Chairperson:

Thank you for that, Chris. It is useful that we have had this discussion today. We will request some information on affirmative and negative resolution for next week’s meeting.

Mr Lunn:

I do not want to hold up proceedings as I know that we have a lot to do today. However, I cannot remember ever hearing anyone argue against the principle of negative resolution. Until today, I had never heard anyone in any Department argue against it in relation to any subject. As far as I am aware, it is regarded as a useful tool to use to get things done.

Mr Poots:

That is a fair point. However, if Mr O’Dowd were to say today that they would never use a petition of concern to negate a negative resolution — a double negative — that would make life a little easier.

Mr O’Dowd:

We have just had a lengthy discussion on how democratic it is to use the affirmative resolution procedure, yet the most important piece of RPA legislation to go through the Assembly, the Health and Social Care (Reform) Act, is full of negative resolutions. So, this matter is not about a principle that the Ulster Unionist Party holds dear; rather, it goes back to my concern that it is about trying to restrict a Minister in the Executive and in the Assembly. That is why I have strong objections to what is happening.

It is also worth noting that every piece of legislation that goes through the Assembly, including legislation that is subject to the affirmative resolution procedure, could face a petition of concern. As far as I understand it, no legislation is exempt.

The Chairperson:

Part of the difficulty is that we have one Health Service in Northern Ireland, but five providers of education. That is the reason why these issues are so difficult. It is not about the Minister; it is about the sectors that we are providing for. As I said, there is one Health Service; people do not go to a maintained hospital or a controlled hospital. If we were to go down that road, we really would be in big trouble.

Mr O’Dowd:

Yes, but we are not discussing the principle of the Bill today, we are discussing the day-to-day running of the ESA.

The Chairperson:

However, out of that we are having a discussion about the broader issue of positive and negative resolution.

Mr B McCrea:

A point was made about the health legislation. As is his right, the Chairperson has summarised the issue. That legislation was not contentious.

Mr O’Dowd:

Tell that to the DUP; it went ballistic over it.

Mr B McCrea:

If the regulations are contentious, then people are right to say that they would like them to be subject to affirmative resolution procedure. My colleagues and I have made our reservations quite clear — if I have not done so, I apologise, but I have done my level best to be consistent and say what we are concerned about. The issue emerged as to whether affirmative, as opposed to negative, resolution would help us, and, yes, it would. I would even be prepared to consider whether — and Mr Stewart touched on this — the affirmative resolution procedure has to be used everywhere. Perhaps it does not.

Nevertheless, the issue is that where there are genuine heartfelt concerns — and I assure you that we are raising concerns that have been raised by stakeholders and in evidence given to the Committee — the use of affirmative resolution would be a positive, trust-engendering process. I will not go on about it. I will simply say that the situation with education is completely different to the situation with health. There are contentious issues in education; otherwise, we would not be spending so much time on it.

Mr McCausland:

Chairman, in response to John O’Dowd’s point, you rightly pointed out that there are many education sectors. In these Education Committee meetings, we have heard expressed passions and sensitivities that would not be heard if we were talking about any other subject. It is also worth remembering that education is the one area in which special exclusions were made to accommodate certain sectors. That shows why it is such a contentious issue and why it is important that the fears and the concerns that are genuinely felt in various sectors are taken on board as we move forward.

Mr Lunn:

I picked up on what Mr McCrea said about the concerns that stakeholders had expressed about the operation of the negative resolution procedure. Did they express their concerns to the Committee? I cannot recall that happening. It would be too deep for most stakeholders.

Mr B McCrea:

Just to be clear; if I did not say it, I meant to say that stakeholders had expressed heartfelt concern about elements of the Bill and the way in which it is going forward. Mr McCausland made the point that there are concerns. I do not think that the stakeholders picked up on the issue of negative resolution. However, I think that there is a way to use this as a positive means of moving things forward.

The Chairperson:

The issue that stakeholders raised concerned clarity, and that would include the procedures that we use to make decisions. That was, perhaps, a point that was made by stakeholders.

Mr Lunn:

I have heard the point fairly well. However, for the record, I do not believe that stakeholders have raised the point about negative resolution specifically. In fact, today is the first time that it has come up.

The Chairperson:

We will return to that discussion. I ask that we move on to paragraphs 9, 10, 11 and 12 of schedule 1. I would like us to reach clause 2 in the next five minutes, and we will then stop. We will not get further than that because we have to hear presentations from the Northern Ireland Teachers’ Council and the Northern Ireland Commissioner for Children and Young People. I want to have this part of the meeting concluded by 12.15 pm.

Paragraphs 9, 10 and 11 of schedule 1 provide for the ESA to make standing orders regulating its own procedure and that of its committees; to deal with the validity of its proceedings and the decisions of its committees in certain eventualities; and to deal with the application of the ESA seal, the execution of documents and the service of documents on the ESA. Members who were present at last week’s meeting indicated that they were content with those paragraphs. Does any Member who was not present last week have any comment to make? OK, there are no comments. As I said, remember that we will have a chance to go through all this again in the report.

That brings us to paragraphs 14, 15 and 16, which provide for the funding of the ESA by the Department of Education and the Department for Employment and Learning; prevent the ESA from borrowing money; and require the ESA to keep proper accounts and to provide those accounts to the Department of Education, the Department for Employment and Learning and the Comptroller and Auditor General. Do Members have any views on those paragraphs? Members who were present last week indicated that they were content with them; obviously, those who were not present may comment now if they wish to do so. Again, not to rush the issue, but I assume that such provisions are standard.

Paragraphs 17 and 18 of schedule 1 provide for the ESA to send an annual report to the Department of Education and the Department for Employment and Learning and for the laying of that report in the Assembly. They also provide for such other reports and returns that the Department of Education and the Department for Employment and Learning may reasonably require. Again, Members who were present last week indicated that they were content with those paragraphs.

Paragraph 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 that, which it considered at its meeting on 27 May. At last week’s meeting, Members were encouraged to refresh their knowledge of that legal advice. Copies of it are available if Members do not have a copy in front of them.

As I understand it, the legal advice was that without paragraph 19 there would be no legal impediment. The legal advice on conflict of interest was broadly that an MLA declaring his or her membership of the ESA might be compared to an MLA declaring his or her membership of an education and library board. The question is whether the overarching nature of the ESA makes a difference. Do Members consider that a declaration of interest is sufficient, or would it be preferable to rule out the possibility of such conflicts of interest arising, as paragraph 19 would do? What are Members views on that? Were any views expressed on it last week?

Miss McIlveen:

The Committee was mindful that many members were absent, so it felt that it would be better to return to the matter at today’s meeting.

The Chairperson:

Rather than open up that discussion now, perhaps it would be better and wiser to make this the finishing point for today and pick the issue up again at a later meeting. I am minded to say that Friday’s meeting might last a lot longer than planned. If members can stay for longer on Friday, we will arrange a working lunch and continue to work our way through the legislation. We might also have to look at scheduling additional meetings. Therefore, are members happy if we stop at paragraph 19?

Members indicated assent.

Mr O’Dowd:

It is worth pointing out what was said earlier about how the ESA board will have an intensive workload and will require more members. I cannot imagine how any MLA thinks that he or she would have the time to sit on it.

Mr Poots:

They probably would not have the time. I do not think that it would be wise for MLAs to sit on the board of the ESA, but should they be excluded from doing so?

The Chairperson:

This is a personal anecdote: I remember that when I was a member of the Fire Authority for Northern Ireland, I had to resign in order to stand as an elected Member of the Assembly. I did not see that as being incompatible for the simple reason that I felt that one was becoming a part of a body which, through the Committee structures, has the power to oversee the work of the Department of Health, Social Services and Public Safety, to which the Fire Authority was accountable. I did not see an issue around that. However, other members might have different views.

Mr Lunn:

I cannot help thinking that, given the present circumstances and the quite unjustified discussions about double and triple jobbing, the Committee would look a bit foolish if it insisted on a change to legislation to allow MLAs to take on a very onerous extra position. On a practical level, it seems inconceivable to me.

The Chairperson:

We will draw this meeting to a conclusion, and I thank Chris and Jeff for attending.