COMMITTEE FOR EDUCATION
OFFICIAL REPORT
(Hansard)
Education Bill
26 June 2009
Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John McCallister
Mr John O’Dowd
Witnesses:
Mr Chris Stewart ) Department of Education
Mr Jeff Brown ) Department of Education
The Chairperson (Mr Storey):
I remind members that our proceedings will be recorded by Hansard, and we welcome Hansard staff to the meeting. We will enjoy ourselves over the next few hours. I welcome Chris Stewart and Jeff Brown from the Department. For John McCallister’s benefit, who, I know, has been briefed by the Committee Clerk, we have a duty to work through the Bill, examining it meticulously clause by clause and schedule by schedule so that we can raise concerns and issues.
Last week, we agreed that we would try to make decisions on clauses based on information available to us at this time so that we can give the Clerk and his team clear instructions to prepare a draft report over the summer recess. The Department may provide additional information or amendments, and we could revisit an issue. However, assuming that the Department’s position remains the same, at least the Committee will have a useful draft report to work on in September.
Before continuing our scrutiny of schedule 1(19), members may wish to consider briefly an issue previously discussed regarding the composition of the membership of the education and skills authority (ESA) and whether it could, or should, be representative of the community served by the schools and whether that could be reconciled with appointment purely on merit.
Chris Stewart and Jeff Brown can respond to any issues or concerns that the Committee raises. Are members content for Chris and Jeff to assist us this morning?
Members indicated assent.
The Chairperson:
The officials referred to the informal advice from the Commissioner for Public Appointments. It states that the code of practice for ministerial appointments could enable the Minister to ensure that ESA members who are appointed purely on merit are broadly representative of the communities that are served by the schools for which the ESA is responsible. Some members considered that desirable to ensure public confidence in the ESA, bearing in mind the segregated nature of most of our schools.
The Minister’s letter of 17 June 2009 states:
“I recognise that it will be important for the ESA membership to have the trust and confidence of the educational interest of the broader community. With this in mind, the appointment arrangements will reflect the need to ensure balance in so far as this is compatible with the Commissioner’s code of practice and the merit principle. My officials will liaise closely with the Commissioner’s office to ensure that the best practice is followed.”
I refer members to the note from the Clerk, which accompanied the code of practice. Chris, do you have a comment on that?
Mr Chris Stewart (Department of Education):
I draw a distinction between a balanced membership and a representative membership, which are two different concepts. Our view, and the informal advice of the commissioner’s office, is that it is possible to reconcile the merit principle with the need to ensure a balanced membership, or, perhaps more accurately, the need to ensure that there is not an unbalanced membership. That is quite different from taking proactive steps to ensure that there is representative membership of a particular composition; that is a different policy objective and not one that features in the arrangements for the review of public administration (RPA).
The Chairperson:
I draw members’ attention to the Department’s response on the Minister’s thinking about the number of members of the ESA, which says that the information will be forwarded to the Committee as soon as it becomes available. That does not suggest any great sense of urgency. Is there any update on the Minister’s thinking on that?
Mr Stewart:
Not as yet.
The Chairperson:
Do members wish to propose amendments to schedule 1(2) and its proposed ESA membership of a chairman and not fewer than seven or more than 11 other members? That issue was raised by Trevor, and we are merely revisiting it. If, for example, the Committee proposed to change the number of ESA members to between 20 and 25, we would want the Department’s powers to amend schedule 1(2) accordingly and make it subject to positive Assembly approval. We have already discussed that necessity. Do members agree?
Mr O’Dowd:
No.
The Chairperson:
A majority of members agree. In light of what the officials have said and the code of practice, do members wish to propose any amendments or additions to the appointments provisions at schedule 1(2)(a) and 1(2)(b), or are you content with it as is?
Mr D Bradley:
I am content to leave it as we outlined.
The Chairperson:
OK. I refer members to schedule 1(19), where we left off last week. Having heard stakeholders’ concerns and the Department’s response set out in detail in the spreadsheet, the objective of this meeting is to obtain maximum clarity on members’ views on two areas. The first is whether they are content with the clauses or what amendments, if any, they propose. Members may wish to express such amendments as proposed changes in principle, suggested rewording or additional wording in individual clauses. Secondly, what further information or clarification, if any, they wish to have as a matter of urgency from the Department or stakeholders, which may meet our concerns. The departmental officials are here to answer members’ questions.
Schedule 1(19) deals with Assembly disqualification. It 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 matter, which it considered at its meeting of 27 May 2009. Members were encouraged at that meeting to refresh themselves on the legal advice, copies of which are available.
The legal advice was that, as I understand it, without schedule 1(19), there would be no legal impediment. Moreover, the legal advice about conflicts of interest was that, broadly, an MLA serving on the ESA and declaring membership of the ESA might be compared to an MLA declaring his or her membership of an education and library board. Does the overarching nature of the ESA make a difference? That is one of the questions that we have to consider. Do members consider that a declaration of interest is sufficient, or would it be preferable to rule out the possibility of such conflicts, as schedule 1(19) does? Are members minded to accept schedule 1(19) as is, or does anyone wish to amend it?
Mr O’Dowd:
We are happy for schedule 1(19) to remain as it is and that MLAs be disqualified from membership of the education and skills authority.
Mr D Bradley:
Given the possibility for conflicts of interest and that the Committee has a role in scrutinising the education and skills authority, I am happy for schedule 1(19) to remain as it is.
Mr McCallister:
It would be another way of preventing a member of the ESA standing for election as an MLA and then leaving the ESA.
The Chairperson:
I was a member of the Fire Authority, which has responsibility for the Northern Ireland Fire and Rescue Service, and since one cannot be a member of the authority and of the Legislative Assembly I resigned from the authority to stand as an MLA.
Mr McCallister:
Did you have to stand down from the Fire Authority to stand as an MLA or did you wait until you were elected?
The Chairperson:
I had to stand down to stand, so to speak.
Mr McCallister:
I thought that there was time enough if someone was elected.
The Chairperson:
I thought so at the time, but I resigned before I stood as an MLA. I was taking a risk, I suppose.
Mr McCallister:
That is another concern. Has that been made clear? Would a member of the ESA be allowed to seek election as an MLA and then stand down, or would he or she have to go as soon as they announced their candidacy?
Mr Stewart:
That is a question for the legal advisers. I suspect that the legislation is such that it would be necessary to resign before seeking election.
The Chairperson:
As I recall, that was the process that I had to use. That is noted as a concern.
Mr McCausland:
It simply says that an MLA cannot be a member of the Fire Authority. You would not become an MLA until you were elected, so it would not kick in until that point.
Mr Stewart:
It is actually the other way around. It is not that you cannot be a member of the authority if you are an MLA; it is that you cannot be an MLA if you are a member of the authority.
Mr McCausland:
Well, it could be worded the other way.
Mr Stewart:
It could, except that it is not education legislation; it is the Assembly Disqualification Act 1975. That is overarching.
The Chairperson:
Schedule 1(20), (21) and (22) make the ESA subject to the Ombudsman and the Freedom of Information Act 2000 and set out that the financial year ends as 31 March. Members present at the Committee’s meeting on 19 June 2009 indicated that they were content with these paragraphs. Are members content?
Members indicated assent.
The Chairperson:
We move to clause 2 “Functions and general duty of ESA”. We are doing well; it has taken us two meetings to get to this stage.
Mr Stewart:
Fifty-three to go, Chairman.
The Chairperson:
It will be a long summer.
Clause 2(2)(b) deals with youth services. Members were earlier informed of a probable departmental amendment that would help to address some of the stakeholders’ concerns regarding the perceived importance and scope of youth-service work and its intrinsic role in education. That was confirmed in annex c of the Minister’s letter of 17 June. Is there further information on that, Chris?
Mr Stewart:
We do not have an update, but I can confirm that the scope of the amendment that is being considered is to make clause 2(2)(b) look much more like clause 2(2)(a). I cannot give you the precise wording today, but I imagine that it would be very close to the wording in the first half of clause 2(2)(a) from “to contribute” to “by ensuring”, followed by “the provision of efficient and effective youth services”. Clause 2(2)(b) is a little bald as it stands; it does not give a clear indication of the purpose and contribution of youth services, in contrast to the comprehensive description of children and young persons services in clause 2(2)(a). We want to strike a balance.
The Chairperson:
Members present at the Committee meeting on 10 June indicated that they were content with the other duties of the ESA as set out in clause 2(2). Officials said that, in response to Comhairle na Gaelscolaíochta’s concerns and suggestions, the Minister proposes to amend the Bill to incorporate a duty on the ESA to encourage and facilitate Irish-medium education in similar terms to the existing statutory duty. However, there was no amendment of clause 2 in annex c of the Minister’s letter of 17 June. Chris, do we have any further information on that?
Mr Stewart:
Not as yet, but I imagine that the wording would be almost identical to the statutory duty on the Department in article 89 of the Education ( Northern Ireland) Order 1998.
The Chairperson:
I am not speaking in my capacity as Chairman in this instance but as a member. Chris, you will be aware that we have a serious concern about giving further protection to any sector. The purpose of the ESA was to ensure that all sectors were treated equally and fairly. I raised the issue in the House on Tuesday that there is a disparity — an inequality — in the legal provision, whereby the Department of Education has a duty under article 89 of the Education (Northern Ireland) Order 1998 to encourage and promote integrated and Irish-medium education.
That is a concern, because there is no further information about how that will happen. Does the Minister intend to submit information about that to the Committee?
Mr Stewart:
Yes. The Minister would like the Committee to see the precise wording of all amendments that she proposes; we are not trying to hide anything to do with that amendment. I believe that the wording will be simple and straightforward, and, except for substituting “the ESA” for “the Department”, it will be the same as that of the existing statutory duty.
The Chairperson:
To be fair to Comhairle na Gaelscolaíochta, I draw members’ attention to the organisation’s letter, which, although it was posted on 11 June 2009, appears not to have reached us until now. I do not know what happened to that correspondence —
The Committee Clerk:
The Deputy Chairperson may be able to throw some light on its contents; however, the letter seems to have gone astray.
The Chairperson:
Nevertheless, we are now in receipt of the correspondence, which deals with those issues.
Mr D Bradley:
I was aware that Comhairle na Gaelscolaíochta intended to write to the Committee, and I am surprised that we did not receive the correspondence earlier. In any case, it is here now. It asks the Committee to continue to liaise with the Department on several points, including the ESA’s legislative requirement to encourage and facilitate Irish-medium education — the point that we have just been discussing — an amendment to the Bill to enable Irish-medium trustees to be recognised as submitting authorities for the purpose of submitting employment and management schemes; an amendment to oblige the ESA to have regard to the needs of Irish-medium pupils when giving effect, under clause 26(2), to its duties in respect of the curriculum; and an amendment that obliges the ESA to ensure that its Irish-medium governor nominees are committed to Irish-medium education. Those are the four main points.
The Chairperson:
We have already agreed to forward that correspondence to the Department.
Mr D Bradley:
Comhairle na Gaelscolaíochta was reasonably happy with what it considered to be a positive response from the officials to those four points. However, Comhairle asks that the Committee pursue other points with the Department, including a definition of Irish-medium education. It asks for an amendment to the Bill to include, for the purpose of education Orders, a definition of what constitutes Irish-medium provision and of what an Irish-medium school or unit consists. The present definition is for curricular purposes only; it is not definitive. In addition, Comhairle proposes new provisions for Irish-medium education in the interests of contributing to a strategic and effective approach to the future of the sector, similar to that which in place for Catholic trustees due to provisions in previous legislation. Comhairle says that Chris Stewart referred to that matter during consultation with the Irish-medium sector on paragraph 9(4) of schedule 7, which accords consultation rights to the trustees of a school that is the subject of a development proposal. However, the Department said that proposed new article 14(6) to the Education and Libraries ( Northern Ireland) Order 1986 — which will be introduced by schedule 7(9) of the Education Bill — is relevant to the amendment that was requested by Comhairle na Gaelscolaíochta. Notwithstanding Mr Stewart’s comments, under proposed new article 14(6), it seems clear that senior Catholic trustees will have a consultative role in the establishment of new Catholic maintained schools, and Comhairle refers to proposed new article 14(6) in the 1986 Order, which is found in paragraph 9(4) of schedule 7.
Comhairle says that, according to that provision, senior trustees will be consulted on a development proposal to establish a new Catholic maintained school in their diocese and says that it is important that that consultative role be accorded to the Irish-medium sector to ensure its strategic welfare.
Those points are contained in a letter that the Committee Clerk will forward to the Department.
The Chairperson:
We have agreed that already.
Mr D Bradley:
Comhairle is happy that some of the points that it raised have been addressed satisfactorily but thinks that others require further attention.
Mr Stewart:
We are happy to consider that. I have not seen the correspondence that members are discussing, but if Comhairle or the Committee wishes to forward it to us, we will be happy to consider it.
Mr McCausland:
The Irish-medium sector says that the Catholic maintained sector has a right, if that is the appropriate term, which is not afforded to it. Does that apply to all other sectors?
Mr Stewart:
The same argument could be made. I understand where Comhairle is coming from. Some of the provisions that it is pointing to that refer to the Catholic trustees are amended versions of provisions that referred formerly to the Council for Catholic Maintained Schools (CCMS). There is perhaps an issue about whether some of those provisions will be required at all, given that we plan to remove the definition of a Catholic maintained school.
Notwithstanding what might be decided, C na G raises a point that could be applied to any sector: if a development proposal or a new school is coming forward, is it reasonable to have a requirement to consult those who represent existing schools in that sector? That is a point that we may need to consider. There may be scope for an amendment to introduce a similar consultative requirement that would apply to all sectors rather than to just one or more than one. We would have to put that to the Minister for a view.
Mr McCausland:
As long as there is equality across all sectors, my concerns would be addressed.
Mr McCallister:
Like Nelson, I think that it is about equality. Talking about youth services, I declare an interest because I am still a member of the Young Farmers’ Clubs of Ulster, which is funded in part by the Department of Education.
Mr O’Dowd:
Is that not against the Trade Descriptions Act?
Mr McCausland:
What is the age limit?
Mr McCallister:
It is 108 or something. We will not get you in, Nelson. I am probably on my last legs in it.
I have concerns when we start identifying specific groups in the Bill such as the Irish-language sector because there is a danger of leaving somebody out or of discriminating against somebody. That is a huge concern of mine.
The Chairperson:
Chris, it raises a fundamental question: has the Assembly power to impose a duty to encourage and facilitate Irish-medium education?
Mr Stewart:
I believe that it does; I have not received any legal advice to the contrary.
The Chairperson:
Is that on the basis of the statutory duties contained in the Education ( Northern Ireland) Order 1998?
Mr Stewart:
Yes.
Mr D Bradley:
One of the reasons that Comhairle na Gaelscolaíochta raised the point is that despite the statutory duty, Comhairle’s experience is that in many cases the Department formulated and published policies that ignored — perhaps not deliberately — the Irish-medium sector. Comhairle asks for the provision to be included to ensure that that would not be the case in future and to ensure that the Irish-medium sector is considered in all policy that is formulated by the Department.
Mr McCallister:
That argument could be made about rural communities, given the rural-proofing agenda. That is my point: if one group is to be included, all need to be included.
The Chairperson:
That is why we need to see the amendments that the Department is considering before any decision is made.
Mr Stewart:
That is certainly an issue that we need to look at. One issue that we considered for the second Bill, which I hope to be able to bring to the Committee within the next couple of weeks, is the clauses on area planning. In those clauses, we needed to find a way to make specific reference to, and provide a role for, each of the sectoral organisations, and we have found a way of doing that. When it comes to the consultation provisions for the new article 14, we may need to look at a similar approach so that when a development proposal is brought forward there is an appropriate requirement to consult the relevant sectoral interest.
The Chairperson:
Will that amendment come at the same time?
Mr Stewart:
I must not get too far ahead of myself; we need to look at the scope for doing that and, of course, ask the Minister whether she feels that it is a necessary step.
Mr D Bradley:
If my memory serves me right, the Northern Ireland Council for Integrated Education (NICIE) raised a point about the inclusion of community relations in clause 2(2)(a). Chris, I raised that matter with you at the time; have you given it any further consideration?
Mr Stewart:
Yes, and, although we understand the thinking behind the proposal, it is still our view that it would be a duplication of the statutory duty that will apply to the ESA through section 75 of the Northern Ireland Act 1998. Therefore, it would not add anything to the expectation and the public duties that apply to that organisation.
Mr D Bradley:
I would like it noted in the Committee’s report that that issue was raised.
The Chairperson:
OK, Dominic.
Our difficulty is that, on the one hand, everyone is telling us about the urgency for us to move on and complete our deliberations, but, on the other hand, there does not seem to be any urgency on the part of the Department or the Minister to send us the amendments so that we can look at them and decide whether to agree them. I know what will happen: when other issues are raised as a concern, an allegation that the Committee dragged its feet will be made. We have been asking for information and looking for amendments, and in a wheen of minutes we will discuss one for which we have been waiting on information for months.
There is a need for urgency, and the Committee is not trying to drag its feet. Committee members want to keep moving forward, but we can only do that with information; we will not make decisions in the dark, and we will not make them when we are blindfolded. Everyone — the Minister, the Department and the Committee — needs to realise that there is a need for urgency.
Mr Stewart:
I understand that and want to assure you that there is a similar urgency on the part of the Minister and the Department. In her reply to the Committee’s letter of 20 May, the Minister set out her proposed amendments in broad terms. I accept that we have not yet given you the wording of the amendments, but the Minister was keen to hear the Committee’s reaction to the proposed list of amendments before drafting them.
The Chairperson:
Clause 2(3) contemplates a situation whereby the ESA will temporarily be the owner of the schools whose premises are currently vested in education and library boards pending the creation of a new statutory ownership body, and it imposes a duty on the ESA in exercising its duties to ensure that schools whose premises are not vested in the ESA are treated on the same basis as schools whose premises are vested in the ESA.
That raises the issue of what has been done for the controlled sector to give us any indication of its position. You are well aware, and have been for a considerable period of time, that there is a concern about the representative body and the ownership body. By and large, there is no real issue with clause 2(3) in that it provides for the education and library boards’ ownership of the school estate to transfer temporarily to the ESA until an ownership body is established. However, that begs the questions of why it has to be done that way and why the ownership body cannot be established. Speaking as a member, not as the Chairperson, I am extremely disappointed by the Minister’s letter of 17 June 2009. In that important piece of correspondence, she rules out any retention of any cohort of the education and library boards to address the concerns that were raised.
At the Committee meeting on 10 June 2009, members raised the issue of conflict of interest. Is any other thinking emerging other than that which is currently contained in the Bill?
Mr Stewart:
No other thinking is emerging on that issue. We share your concern and, perhaps, your frustration that it is not possible to settle the future of the controlled estate and its ownership in one move rather than two. However, the reasons for that are policy-driven and are to do with practicalities. As you rightly say, policy on that area is being settled only now. The Minister’s reply gave the Committee her view on what the policy should be, taking into account the outcome of consultation. Therefore, it would not have been possible to have dealt with the issue in the first Bill as policy had not been settled at that point.
Now that the Minister has made clear her policy intentions, we are in a position to draw up the provisions on the establishment of the controlled schools ownership body and its membership. Those will be included in the second Bill. We hope to bring those proposals to the Committee before summer recess. I appreciate that that will not give you much time before summer recess to have an initial look at them, but we want to bring all, or at least as many as possible, of the provisions of the second Bill to you before you break up for the summer.
The Chairperson:
That would be very helpful, because it would mean that we could give some consideration to the issue during the summer and that further work could be done when we come back in September. We cannot do much more at this stage, other than to express our frustration about the fact that the Minister has told us that she is working on amendments to facilitate the Irish-medium sector while we have been waiting for months and months for movement on the sectoral body working group. Between six and eight people were to have been tapped on the shoulder months ago, but that has not happened. A business case has not been produced, and the controlled sector has been left isolated from the entire process.
I am extremely disappointed, and no further progress will be made until we see the colour of money for the controlled sector. Furthermore, the fact that urgency is required makes the situation very problematic. That point must be underscored and placed on record. I express my concerns as a member, and not on behalf of the Committee.
Mr McCausland:
The whole process of considering the Bill is flawed and inequitable. A body that speaks for the Irish-medium sector is represented. Bishops and the CCMS are represented, and the process includes representatives from the governing body for grammar schools. All those sectors have bodies pushing for them, and particularly strong views are coming from the Catholic maintained sector, the Irish-medium sector and the integrated sector. At the same time, the controlled sector is effectively deprived of meaningful input. Therefore, in that regard, the entire process in inequitable and flawed. There does not seem to be the same urgency to meet the needs of the controlled sector as there is to answer the demands of other sectors.
Mr McCallister:
I support your position, although I question how you would guarantee that vested schools are treated in the same way as those that are not vested in order to ensure fairness and equality. I do not see how that would happen.
Mr D Bradley:
Over a year ago, I raised the issue of Irish-medium education with Chris. With all due respect, I certainly cannot accuse him of dealing with it with great urgency. In any case —
The Chairperson:
The point, Dominic, is that proposals and amendments are being considered for Irish-medium education. All that we have received from the Department and the Minister with regard to the controlled sector is the letter dated 17 June 2009. By this stage in June, we have received a letter from the Minister that states:
“My Department is convening a broad consultative group of controlled sector educational interests”.
I am not sure how many months it has taken to receive that information. Therefore, if we use the timescale that Dominic mentioned, the issue will not be resolved until June 2010.
Mr D Bradley:
I was going to finish by saying that we have already taken evidence from members of the Transferor Representatives’ Council (TRC), with whom we had a long and detailed discussion on the issue. The Department is certainly aware of the concerns. Therefore, I understand members’ frustration at not receiving detailed proposals from the Department.
The Chairperson:
We have dealt with clause 1 to clause 2(3). Clause 2(4) states that:
“ESA shall ensure that its functions relating to grant-aided schools are (so far as they are capable of being so exercised) exercised with a view to promoting the achievement of high standards of educational attainment.”
What does that mean? Why is it necessary to include those words in brackets? I understand that the Department is good at drafting catch-all legislation that provides for all eventualities. The words that are contained in brackets state:
“so far as they are capable of being so exercised”.
How do those words work in reality? What is the purpose of their inclusion?
Mr Stewart:
There is a lot less to them than meets the eye. The words that are contained in brackets were inserted on the advice of legislative counsel. Quite simply, he pointed out that the ESA will have a number of functions, as would any organisation, which could not possibly be exercised with a view to promoting high standards. For example, running its own headquarters and cutting grass are functions that cannot be exercised with a view to promoting high standards of educational attainment. It means no more and no less than that.
Mr D Bradley:
I agree that cutting grass might not have a major impact on high standards in education. However, surely the running of the organisation’s headquarters might have some bearing on it.
Mr Stewart:
By that I mean day-to-day functions that concern the stationery order, the staff canteen, the cleaning of desks at the end of the day, and so on, which, strictly speaking, are functions of the ESA.
I agree with you, Dominic, that the operation of various headquarters functions certainly will impact on high standards of education. A director, who will be a senior member of staff, will have specific responsibility for quality and the attainment of educational standards. Clearly, all that that office and the staff who report to that individual do falls within the scope of that duty.
The Chairperson:
If the part of the sentence that is contained in brackets were removed, it would read:
“ESA shall ensure that its functions relating to grant-aided schools are… exercised with a view to promoting the achievement of high standards of educational attainment.”
If you insert those words and read the sentence again, it could be argued that the legislation gives the ESA an opt-out through the phrase:
“so far as they are capable of being so exercised”.
That is how I read it. The ESA could simply say that, in the exercise of its functions, it is required to promote high standards only so far as it is capable. The changes that the Bill will introduce mean, therefore, that the ESA could say that the responsibility for achieving high standards falls to the board of governors, thus lumbering them with all the responsibility.
Mr D Bradley:
The aspiration is to achieve high standards, but, if the ESA does not achieve them, it cannot be held to account.
The Chairperson:
Yes; that is correct. That is what worries me, and that is why I raised the issue with members. I am concerned that there is an opt-out for the ESA. All this is turning me into a civil servant but, Chris, perhaps you would explain how other duties and schedules relate to the requirement for the ESA to be able to fulfil its functions.
Mr Stewart:
First, I congratulate you on your wise career choice in becoming a civil servant, and we welcome you to that body.
If I may say so, members are, perhaps, taking a more pejorative interpretation of the clause than it deserves. It is not an opt-out. We have no intention of drafting an opt-out. ‘Every School a Good School’ is one of the most important policies that the Department has introduced in many years. It is at the core of the RPA and everything that we are trying to do. It simply would not be in the interest of that policy, and what we are trying to achieve under it, to give the ESA any sort of opt-out. Apart from anything else, we would find ourselves having great difficulty in answering the Committee’s questions. In due course, you could ask us what we had done under ‘Every School a Good School’, how we had made improvements, or why things had not improved. If, at that point, we were to say that we hobbled the policy from the outset by not giving the ESA clear responsibility, you would not be terribly satisfied with that answer. If we thought for one moment that that clause, as drafted, gave the ESA an opt-out, we would remove those words immediately.
Mr D Bradley:
I cannot understand why those words are included in the clause. The exercise of the function relates to high standards of educational achievement; no one would judge grass-cutting or desk-tidying on the basis of that clause.
Mr O’Dowd:
Will the implementation of the legislation or the intention of such clauses be outlined further in the guidance notes?
Mr Stewart:
There is not a great deal more detail, John, in the explanatory and financial memorandum. I remind members again that those words were inserted by, and on the advice of, legislative counsel. He is a man who drafts legislation with incredible precision and caution. To ensure that the legislation means precisely what we need it to mean, he quite frequently asks us to agree to the inclusion of words and phrases that we would not have thought of. I do not think that the removal of those words would make a great difference to the outworking of ‘Every School a Good School’. However, legislative counsel would, undoubtedly, signal his concern that we had drafted legislation that was imprecise and capable of being interpreted in a way that we did not mean.
Miss McIlveen:
Are you minded to go back to legislative counsel to say that the Committee is concerned that clause 2(4) is not definitive?
Mr Stewart:
I am happy to go back to him and relate to the Committee any further advice he may have on that point; I can guess what that might be, if I survive my encounter with him.
The Chairperson:
Given the concern, it is right to highlight that point and ask why those words are necessary. The reason for the concern is that the clause deals with achieving high standards of educational attainment. If it dealt with maintenance or buildings, for example, it would not be that important. However, in the middle of setting out the function of the ESA to ensure that it exercises and promotes the achievement of high standards of educational attainment, those words raise a doubt as to whether that is, in fact, required of the ESA.
Mr Stewart:
I understand your point; however, legislative counsel may offer counter-advice and argue that clause 2(4) needs that qualification precisely because it is not about grass-cutting. Legislative counsel’s advice on statutory duties is always based on the need to make them clear and to ensure that they do not impose on any organisation a duty that it cannot meet. Counsel may argue that without those words the ESA would be under a duty to carry out grass-cutting in a manner that is calculated to raise standards of educational attainment, which, by definition, is a duty that it could not possibly meet.
Mr O’Dowd:
I am relaxed about it. However, I doubt that reasons such as grass-cutting would stand up in an appeal hearing or tribunal.
Mr Stewart:
Do you want to tell him or shall I?
Mr O’Dowd:
I think that you should tell him and see what he says.
The Chairperson:
Perhaps grass-cutting is not a good example because it misses the seriousness of the point. What about the maintenance of school buildings? It could be argued that the fact that a school has 35 or 40 mobile classrooms will impact on the educational attainment of that school.
Mr Stewart:
You could argue that because it is a perfectly reasonable interpretation of the clause as it is currently drafted.
The Chairperson:
Are members content for the Committee to get further clarification on clause 2(4) from legislative counsel?
Members indicated assent.
The Chairperson:
Clause 2(5) states:
“ESA shall exercise on behalf of the Department such administrative functions of the Department as the Department may direct.”
Members should go over clause 2(5), 2(6), 2(7) and 2(8).
The Committee Clerk:
Members may want to take on board the comments in the spreadsheet that they have been given. Until now, the Committee has raised no issues of concern about those subsections.
The Chairperson:
Members should consult the spreadsheet, which contains a summary of the comments that organisations submitted to us. I do not think that there are any issues of concern; however, to ensure that everyone is satisfied, I ask that you glance over clause 2(5), 2(6), 2(7) and 2(8).
Clause 2(8) states:
“In the Education Orders “educational services” means services of any kind (except youth services) which provide educational benefit to children or young persons or which are ancillary to education . ”
We have come up against the problem with the definition of youth services before. That remains the case, because we do not define youth services. Do they come under the term “educational services”?
Mr Stewart:
No. They would come under their own undefined heading of youth services. The normal approach is, where possible, to define any type of service very precisely in legislation; however, there are times when it is not wise to follow that course. We have taken the middle way with educational services; we defined them, but we did so in a very broad way to allow for the flexibility of services of that type to continue to develop and evolve.
At the other of the spectrum from precise definition is the approach that we have taken to youth services; that is, not to define them at all. Again, that reflects the nature of youth services, which vary from time to time and from place to place. Any attempt to define them in the legislation would be fraught with difficulty, because we would be forever running back to change the definition as and when a new type of youth service came along.
The Chairperson:
The Northern Ireland Public Service Alliance (NIPSA) commented on paragraph 5(6) of schedule 1:
“the legislation should provide for secondments between ESA and a Northern Ireland department. This would allow for exchanges of experience of skills which would in NIPSA’s view benefit both ESA and the NI Civil Service departments”
Is that the right one? Sorry, I was on the wrong page. I apologise. Do members have any further comments on that?
Let us move on to clause 3. Before moving to the wording of clauses 3 to 12, it would be useful if the Committee considered the general issues raised by some stakeholders regarding the ESA employing all staff in grant-aided schools. It would be useful to remind members where we are with the Department with those clauses.
A record and summary of the issues and the position reached with the Department is set out on pages 2-4 of the table that is attached to the Committee’s letter to the Minister of 20 May. A copy of the letter is in the members’ information pack. In addition, I would ask members to keep before them a copy of the letter from the Minister of 17 June to which I referred earlier. In that letter, the Minister, in relation to employment arrangements, writes:
“The Committee, having considered stakeholders views, has asked for the Bill to include:
- a means of giving greater clarity and certainty on the respective employment roles of the ESA and boards of governors; and
- an effective means for a board of governors to challenge an action of the ESA on an employment matter.
I recognise the concerns of stakeholders on this matter, and I have asked officials to involve stakeholders in the development of guidance and model schemes, in order to provide the necessary clarity and certainty. The committee will be aware there is already a challenge mechanism that boards of governors could avail of in article 101 of the 1986 Order.”
Members will recall that the Committee suggested that the Bill be amended to include a provision for the Department of Education to make regulations clarifying schemes of employment as set out in broad terms by the Department’s paper and as discussed on 1 April. I had understood from departmental officials that we could expect to see draft regulations at this point. Has the Department considered draft regulations that the Committee has not yet seen?
Mr Stewart:
No, that is not the case. The Department has had some initial thinking on that matter, and I have a fairly good idea of how such regulations might look. At the moment, however, the Minister has indicated that she has not yet heard any convincing argument that persuades her that regulations are necessary.
The Chairperson:
Do members wish to comment before we move into the detail of the clause?
Mr D Bradley:
That is probably one of the most controversial parts of the entire Bill. For the Minister to say that she has not heard anything that would lead her to publish the draft regulations is surprising.
You have referred to clause 8(2), ‘Effect of employment scheme’, which states:
“It is the duty of ESA to give effect to any decision of the Board of Governors of a grant-aided school which is taken in accordance with such a scheme”.
I think that part of the thinking behind that was that it would give comfort to people who had concerns that the ESA would in no way act against the wishes of a board of governors.
However, those with reservations have made the point that it is very difficult to take any comfort from that clause without the sample schemes.
Therefore, if we want to deal with the concerns of those people, the establishment of draft schemes in the form of regulations would be a ideal way of doing so. Those concerns have not yet been assuaged by anything that either you or the Minister have said.
Mr Stewart:
That is a fair point. We recognise, as does the Minister, that the reassurance that various stakeholders have sought will not come about until they see the detail of model schemes. Some were seeking further reassurance in the form of regulations, which would have meant that the guidance on the model schemes might not be so easily changed by the ESA in future. The fundamental reassurance will come from the schemes themselves.
A fair amount of preliminary work has been done by the ESA implementation team on the core elements of model schemes, and within the last couple of weeks that has been shared with stakeholders. We have also asked stakeholders, particularly those who were most vociferous in raising their concerns to the Committee, to turn that initial work into the sort of model scheme that they would like to see for their sector or school and to work with the Department in the development of model schemes. We recognise that, rather than the Department simply producing schemes that stakeholders could either take or leave, it would be better if we work with stakeholders. If they can play a significant role in developing the schemes for their sectors, they will have greater confidence and reassurance, because they will have played a part in developing the arrangements that the Department will be asking them to operate.
Mr D Bradley:
Would it not be more effective to go one step further and include those in regulations? That would further, if not totally, reassure those with reservations about the operation of the schemes in future.
Mr Stewart:
That is a perfectly valid view, but the Minister does not yet share it.
The Chairperson:
I remind members of what was said on 1 April, after the evidence session with the chiefs of the education and library boards. A departmental official, I suspect it was Chris —
Mr Stewart:
I think it was Jeff at that meeting.
Mr D Bradley:
It will be used in evidence against him.
The Chairperson:
I remind members of what was said then:
“Schemes of employment will outline the delegation arrangements and the detailed role of boards of governors, as covered by clauses 3 to 12. The Department recognises that various stakeholders and the Committee have outlined — particularly in recent weeks — the need for greater clarity and certainty on the detail of the arrangements and the content of the employment schemes. The Department has heeded that message.
Until now, the intention has been that the ESA would provide guidance on the required detail. However, given the concerns that have been expressed, the Minister is prepared to consider the need for subordinate legislation rather than guidance to govern the content of employment schemes. Therefore the Bill could be amended to include a provision for the Department to make regulations on schemes of employment. Such regulations could be made subject to Assembly control and most certainly would be subject to scrutiny by the Committee.
The enabling provision that could be introduced to the Bill could state that the regulations might, among other things, specify the matters that must be included in schemes of employment and the form in which such schemes must be drawn up. Moreover, it might specify the functions that must be carried out by boards of governors, other functions that must be carried out by the ESA, or functions that could be carried out by one or the other depending on what is decided by the schools and written into the schemes.”
Are you now telling us that that is not worth the paper it is written on?
Mr Stewart:
No, I would not say that. The regime that you have described is intended from the outset to be included in the guidance for model schemes. The issue that the Minister was considering was whether we needed to go one step further and include that in subordinate legislation rather than merely in guidance. She has given some consideration to that.
At present, she is not convinced that it is necessary to take that extra step.
The Chairperson:
Do members have any other comments? After all, we are trying to establish the context before going into the detail of the schedule.
Mr O’Dowd:
I have again studied the Committee’s evidence sessions in which concerns of stakeholders were raised and the correspondence from NICCE; they do not contain an example of how a single employing authority would undermine the ethos of a school. Without that, one is left scrabbling around in the dark, questioning where the ethos of a school could possibly be undermined. Providing specific examples would make it easier to come to a position.
The Chairperson:
The Committee has received correspondence from Bishop McKeown of the Northern Ireland Commission for Catholic Education. The commission is to be commended for the way in which it has presented a huge volume of documentation, but the point being made cannot be condensed into a single simple example about how the ethos of a school would be undermined by the ESA becoming the single employing authority.
Members will correct me if I am wrong, but that appears to be the general thrust. Members have all this documentation, but does it contain an example of how the ethos of a school would be undermined were the ESA to become a single employment authority? We do not.
One example that is given relates to the redistribution of teachers, which is an issue of concern for voluntary grammar as well as maintained schools. They question whether the closure of area school X that creates surplus teachers at a time when there are teacher vacancies in school Y would lead to the imposition of those teachers — regardless of where they come from — on school Y.
That raises the issue of whether the ESA would impose such a decision on the grounds that it was in the interest of education and whether board of governors have no powers to resist the move and must accept it as a fait accompli. That example was given.
Mr Stewart:
It was; but I cannot remember whether, at the time, we were able to offer the reassurance sought. However, the Department’s reassurance would be that the ESA, like any publicly fund authority or service, would try to minimise the scope for compulsory redundancy and maximise the opportunities for the redeployment of teachers.
That notwithstanding, the effects of the guidance and of the employment scheme would be that no member of staff — teaching or non-teaching — could be imposed on any school. No member of staff would be employed to work in any school without the active decision, much less consent, of a board of governors to employ that person.
Mr D Bradley:
Page 5 of the documentation supporting the commission’s submission contains a reply to the Department’s response to the submission of NICCE, which states:
“To allege that the new arrangements do not involve any real or practical loss of autonomy as boards of governors will remain responsible for the exercise of employment functions we are advised is legally incorrect and misleading.”
The commission goes on to outline five ways in which it believes that the powers of boards of governors are circumscribed. The commission’s words that it is advised that it is “legally incorrect and misleading” to say that the new arrangements do not involve “any real or practical” loss of autonomy are fairly strong.
Mr Stewart:
I disagree with the statement in the NICCE’s document. Our advice is that the evidence given to the Committee is both legally sound and not misleading. The commission’s lawyers have outlined areas in which the activities of boards of governors are, as they see it, constrained. In effect, they point out that the actions of boards of governors must follow the rules agreed with the statutory education authority that is responsible for the education of 300,000 children and the expenditure of £2 billion. For the commission’s lawyers to argue that any employer or any part of the education system should not be responsible to, and accountable to, the statutory education authority and, through it, to the Minister and the Assembly, is an unusual approach.
The Chairperson:
Members will recall that the Committee heard from the chief executives of the education and library boards on 1 April. David Cargo, the chief executive of the Belfast Education and Library Board, said:
“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.”
Following that, the Committee obtained legal advice on the employer/employing authority distinction, which highlighted that the Department, in relation to CCMS, has, indeed, made regulations clarifying who the appropriate respondent was, and they have ended up in an employment dispute, which has resulted in litigation and confirms CCMS’s right to be joined in any proceedings brought against the governors of a Catholic maintained school.
Other stakeholders, such as Comhairle na Gaelscolaíochta, the Northern Ireland Council for Integrated Education, the North Eastern Education and Library Board, the Ulster Teachers’ Union, the Irish National Teachers Organisation and the National Association of Schoolmasters and Union of Women Teachers welcomed the concept of a single employer of all staff. 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.”
I am making some summary points and not going into any detail. 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 should bear all that in mind. If members are not satisfied with the Minister’s proposals to involve stakeholders in the development of guidance and model schemes in order to provide the necessary clarity and certainty, do members wish to propose their own amendments; for example, enabling provisions for regulations? Members may wish to consider whether such regulations shall be subject to affirmative or negative resolution by the Assembly.
Bearing in mind your response to Dominic’s question, Chris, would it not be easier to put that into regulation rather than create doubt about the operation of guidance and model schemes?
Mr Stewart:
It is difficult for me to speculate on what action, if any, we might take that would influence the views of stakeholders on our motives. It is no more easy or difficult to put those matters into guidance than it would be to do so in regulation. The issue is one of policy, and the Minister’s current policy is that regulations are not required.
Mr O’Dowd:
The key phrase is “at the moment”. We remain to be convinced. This is one of several issues about which the Committee has highlighted its concerns with the Department. The document from the Commission for Catholic Education arrived only yesterday; it deserves to be studied further. Having read the material, which is written in a legal framework, it is clear that barristers and solicitors have provided their services, hopefully free of charge, to the commission.
Mr D Bradley:
That is unlikely.
Mr O’Dowd:
I would like another chance to study the document and then form a view whether we need regulations on the guidelines.
The Chairperson:
Comhairle na Gaelscolaíochta, 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 the National Association of Schoolmasters Union of Women Teachers (NASUWT) do not have an issue with a single employing authority. We need balance. The two basic components of the education sector — the Catholic Commission and the voluntary grammar schools, largely through either the Governing Bodies’ Association (GBA) or the Association for Quality Education (AQE) — have common cause on the matter. However, the Association of Northern Ireland Education and Library Boards ANIELB said:
“The association welcomes the fact that ESA is to be the single employing authority for all grant-aided schools. It was on this understanding that the association supported the establishment of ESA.” “However, the current vision of ESA is far removed from what the association originally envisaged.”
That is another view on the matter. In light of those facts and of the correspondence that we received from the AQE and the Catholic Commission, it would be useful to study clauses 3 to 12 as well as the issues and concerns raised by the Committee evidence sessions to date. I am happy to take members’ concerns as we go through the clauses.
Could the Committee agree that would be happy, in principle, with regulations that would provide clarity, certainty and confidence? Those are the three words that organisations such as the GBA or the AQE use. I do not say that that binds the Committee or that it commits it to agreement that there must be regulation. However, could the Committee agree in principle to the need for such regulation to provide clarity, certainty and confidence?
Mr D Bradley:
If those issues are not resolved, we will have a train wreck further on with this Bill; if regulations avoid that, they would be a positive contribution to our work on it. However, Chris said that the Minister is not minded at present to provide regulations. I appeal to her to review her stance and look to the usefulness of regulations in providing a way forward on those controversial issues.
Mr McCausland:
I was loath to use the term “train wreck”. Now that Dominic has used it, however, I must say that there are many issues that could create such a wreck. I am sure that that will be relayed to the Minister.
Mr O’Dowd:
Regulation is an option; however, as I understand it from Chris, the Minister is not yet convinced. That means that discussion is ongoing; she is reviewing and exploring the possibility. Regulations are an option that can be used to convince those who wish to be convinced.
The Chairperson:
We should bear in mind the three words that constantly recurred: clarity, certainty and confidence. We could establish a principle that regulations are the best option for dealing with stakeholders’ concerns. C na G spoke of clarity, certainty and confidence, as did the controlled sector, the commission, and the Association for Quality Education. However, the Minister remains to be convinced. In principle, the Committee can agree that regulations are a solution.
I do not want to walk members into any particular view, only to agree that, as a broad principle and to resolve this and other issues, we suggest that regulations can be used to find a resolution that creates clarity, certainty and confidence. I feel like a minister of the Church, using alliteration. I am happy to stress all the Cs. Are we agreed?
Members indicated assent.
The Chairperson:
We are doing well; it is 12.05 pm and we are already on page 2. Is there any chance of our getting to clause 20 today?
Clause 3(1) is the underlying principle of this part of the Bill. It reads:
3. —(1) 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.
Clause 3(2)(a) defines “the submitting authority”, as the trustees of the school, in the case of a Catholic maintained school and, in the case of any other grant-aided school, as the board of governors of the school.
I will return to the diverse views on the submitting authority in a moment. On the one hand, the Irish National Teachers’ Organisation’s view is that all boards of governors, without distinction for superior ethos, should be submitting authorities; on the other hand, the Northern Ireland Council for Integrated Education welcomes the recognition in the Bill that the owner/trustees will have a key role in determining the schemes of employment and management of each Catholic and grant-aided school. It said:
“Again, this is essential if owners/ Trustees are to fulfil their right/ duty to ensure that the ethos and defining character of a school are sufficiently recognised and presented.”
The Minister’s letter of 17 June confirmed that:
“An amendment is proposed to this clause, to redefine the submitting authority in all cases as the owners or trustees of schools, with an option to delegate the functions to boards of governors. This reflects the views of a number of stakeholders, who suggested that school owners should be given the submitting authority role, so that they can ensure that the ethos of the school is reflected appropriately in the schemes of management and employment.”
Members should note that the Minister’s letter of 17 June states that the controlled sector ownership body:
“should not have any other functions, such as nominating governors, encouraging boards of governors to take ownership of schools, developing ethos, area planning, or acting as the submitting authority for schemes of management or employment.”
Chris, can you explain how those two approaches can be reconciled?
Mr Stewart:
The thinking behind the clause and, more particularly, the amendment is to ensure that those who have responsibility for fostering and developing ethos in a sector or in a group of schools can set the arrangements for employment. That is in direct response to the concerns of some stakeholders, particularly the Irish-medium sector and the Commission for Catholic Education, that the RPA arrangements would somehow threaten or undermine ethos.
The net effect that we seek from the clause is that boards of governors, which will largely be appointed by the trustees of schools, will operate employment arrangements that will be drawn up by the trustees of schools to appoint staff to schools that are owned by the trustees. Particularly in response to the concerns that the Commission for Catholic Education raised, we contend that the clause, as suitably amended, would address that issue. We see no threat to ethos from any aspect of that.
As is so often the case, we face a particular difficulty in ensuring equality and parity of treatment for the controlled sector in this instance. That is not because we do not want that; it is simply because of the constraints under which we have to work. If it were possible to have a controlled school ownership body that was representative in nature, it might be possible or appropriate to assign the submitting authority function to it.
The difficulty with that is that the controlled school ownership body must be a statutory body, and we cannot establish a statutory body with the sort of membership that stakeholders want. Therefore, it is inappropriate to give the controlled school ownership body submitting authority responsibility. We need to get that sector to the same place as the other sectors, but by a different route.
The different route that we propose is that the submitting authority responsibility for controlled schools will lie with the boards of governors. We propose that boards of governors may choose to have the controlled school representative body act on their behalf and draw up the schemes of management and schemes of employment, but that, formally, the submitting authority will be the boards of governors.
Some might argue that that arrangement is different from the arrangements that will apply to other sectors. The arrangement is different in law, but it would get the controlled sector to the same initial policy objective by a different route. The group of people who are responsible for fostering and developing the ethos of the sector will draw up the employment arrangements that will operate in that sector.
The Chairperson:
That is contrary to the Minister’s letter of 17 June, which states:
“An amendment is proposed to this clause, to redefine the submitting authority in all cases as the owners or trustees of schools”.
However, in the controlled sector, that is not the board of governors.
Mr Stewart:
You are correct; that sentence is inaccurate. The responsibility for having drafted an inaccurate sentence for the Minister’s letter rests with me. The sentence should have a caveat that different arrangements would have to apply for the controlled sector.
Mr McCausland:
All that is predicated on the assumption that the legislation cannot be changed to sort out the issue of a statutory body.
Mr Stewart:
That is correct.
Mr McCausland:
It is not good enough to cave in and sweep that issue aside at this stage. Rather than finding a way around the problem, the priority should be to fix that problem and get genuine equality across all sectors. The notion that it is down to governors, who could ask such and such and who might or might not make a certain decision, is nonsense. Either there is equality for everyone or we are closer to a train wreck than people recognise.
We have highlighted that as a core and crucial issue, but the Department runs around fixing this, that and the other for everyone else. The core issue for the controlled sector, which is one of a few train-wreck issues, is simply fobbed off. The Department is not giving us the same level of attention and concern as it is giving other sectors. The more I hear, the angrier I get. It is unfair to schools and children in the controlled sector.
The Chairperson:
To compound matters, having had the Bill at this stage for all these months, the Minister now states:
“My Department is convening a broad consultative group of controlled sector educational interests, including educationalists, the TRC, and community representatives.”
We do not know all that that group will entail, and we do not know when it will meet — it could be days, weeks or months.
Mr Stewart:
The group will meet in the next seven days; in fact, the meeting will be held next Friday.
The Chairperson:
So the meeting has been arranged?
Mr Stewart:
Yes.
Mr McCausland:
Am I correct in thinking that the group’s first meeting will take place in seven days’ time?
Mr Stewart:
Yes.
Mr McCausland:
Therefore, it will take place after the Committee’s final meeting before the summer recess. Those of us who have a particular interest in that sector know absolutely nothing about it and do not have a clue what is happening.
The Chairperson:
It is even worse than that, Chris. To use a metaphor, it is like pulling the pin out of a hand grenade, throwing it among all the people who have an important role to play in the controlled sector and saying “Make sure that the door is open for you to run out before it explodes”. Please do not take any of this as a personal attack, Chris. However, there are mistakes in letters that have been sent to us, and the Minister is telling us that she is not prepared to make any move to retain a cohort of education and library boards to address a fundamental issue; treating the schools that educate 95% of the Protestant children in Northern Ireland with fairness and equality.
The same Minister tells us that she has been working on amendments for the Irish-medium sector. None of us has said that we are not prepared to look at those, but that has all been happening while this train has been coming down the track for months. We have talked to you about it before, but nothing has been done. You could say that it is up to that group or that body, but the controlled sector does not have a body like all the other sectors. Frustration continues to build around this issue.
Mr Stewart:
I understand that. Let me reassure you that I do not interpret any member’s comments as a personal attack. I have been doing this for a long time, and I would not fall into that trap.
The Chairperson:
They are not, Chris; I would not do that.
Mr Stewart:
Let me clarify one point. When you say that the Minister has been working on amendments for the Irish-medium sector, that seems to imply that we are not working on other matters. I assure the Committee that amendments requested by any one particular sector are no more or no less advanced than any other amendments. In her letter to the Committee, the Minister has indicated the list of amendments that she proposes to bring forward, but none of those amendments has been drafted yet. The drafting will get under way very shortly, certainly in the next few days. The Minister and the Department were keen to hear the Committee’s reaction to the suggested amendments before we started down that road. I assure all members that we take all the concerns that you raise with us seriously and equally, and that we will work on all of those concerns to the best of our ability.
I take some comfort from the Deputy Chairperson’s comment that the Department has perhaps been equally tardy on all of the matters that it should attend to. It is not the case that the concerns of any one particular sector or group of schools will be prioritised over any other. We recognise the depth of concern around the position of the controlled sector. We also recognise the need to make progress on that, and I openly accept that we could and should be further along the line than we currently are. However, that is not the result of any particular political or policy decision, rather it is because the Department has struggled to find the resources to take forward all the matters that it needs to attend to as a consequence of the legislation.
The first meeting of the consultative group will take place next Friday. The Department has written to a broad range of individuals who it feels will have an interest, and it has asked those individuals to consider whether they know of any other individuals or groups who may want to become involved. We will get that process under way next Friday. I do not for one moment expect that we will bring the issue to anywhere near a conclusion next Friday, and we will need to work diligently on it over the summer. I hope that when the Committee returns after the summer recess things will have moved considerably further forward.
Again, I offer the reassurance that no other sector is off and running or in a more advantageous position. The Department has not made a decision on any of the business cases that have been submitted by any of the sectors.
The Chairperson:
It would be helpful for the Committee to see who has been asked to attend that meeting.
Mr Stewart:
Certainly; I am happy to provide the Committee with that information.
Miss McIlveen:
The point is that those other groups have been able to submit a business case, and they have also been able to formulate arguments in relation to where the Bill is going, and so on. Therefore, the controlled sector is at a distinct disadvantage.
Mr Stewart:
The controlled sector is at a disadvantage in that a group does not yet exist to represent it. We will do our best to remedy that disadvantage as quickly as we can, but until that group exists, it is not possible to bring forward a business case because, quite simply, there is no one to develop it.
The Chairperson:
I wish you well, Chris. Given that the first meeting of the group will be next Friday and people are going on holidays in July and August, I suspect that there will not be a huge amount of work done, or progress made, by 1 September 2009. That is not in any way to pour cold water on the development; it is welcome, but it should have happened months ago.
In the light of the inaccuracy in the Minister’s letter of 17 June 2009, which was mentioned earlier, who would be the submitting authority for the controlled sector if the ESA were to become the temporary owner of the controlled estate?
Mr Stewart:
In that instance, I think that it would still be boards of governors.
The Chairperson:
Yes, unless the Department establishes that ownership body.
Mr Stewart:
Yes, unless that body was established. However, against the general background that we want to increase the autonomy of all schools, I think that it would be unfair to controlled schools to leave the submitting authority responsibility in the hands of the ESA. Indeed, there would also be a degree of illogicality to that as the ESA would be submitting schemes to itself for approval. Therefore, we would want the boards of governors to be responsible.
The Chairperson:
The TRC visited the Committee on 22 April 2009. In its correspondence, it advised the Committee that:
“one particular function — the role of the submitting authority — presents us with a challenge in relation to the controlled sector.”
That is in the correspondence from the TRC — sorry, was it the departmental official who said that?
Mr Stewart:
Yes, it sounded like a well-crafted phrase. [Laughter.]
The Chairperson:
OK. So, the official said that and then went on to refer to two options:
“We have outlined two options that might help overcome that. The first is to place the submitting authority role directly with the board 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.”
Are you saying that that is still the case?
Mr Stewart:
We advocate the first rather than the second of those two options, because it places the submitting authority responsibility much closer to those who have a direct interest in the ethos of the sector, mainly the TRC.
The Chairperson:
Do members have any other comments on clause 3?
Clause 4 deals with employment schemes for grant-aided schools and broadly sets out what an employment scheme may and may not provide for. Some stakeholder expressed concerns that the requirement to submit employment schemes would be a bureaucratic burden and that such matters would be better dealt with centrally by the ESA.
The Department’s response to the trade unions emphasised that responsibility for preparing and submitting schemes will be given to schools in keeping with the policy aim of allowing schools to determine the degree of autonomy that they wish to have over employment matters. The Department also said that model schemes could minimise the burden for some schools.
Other stakeholders highlighted that some controlled schools, including special schools, do not have fully delegated budgets, which has created inequities. The Department’s response indicated that special-school funding arrangements would be considered in the context of the special educational needs (SEN) review. Have members any comments on that?
Clause 5 deals with the preparation and approval of employment schemes. Members will recall that the clause creates a duty on the submitting authorities to submit a scheme to the ESA for approval and provides for the ESA to issue such guidance as it thinks fit, including model schemes for particular descriptions of schools, which a submitting authority shall take into account in preparing a scheme. Clause 5(4) permits the ESA to require a submitting authority to supply it with information on the extent to which its scheme differs from the model scheme for a particular type of school.
The NIPSA submission suggested that there be one scheme for all schools, which would be centrally negotiated. The Ulster Teachers’ Union (UTU) favoured commonality, unless there was a very compelling reason for differences, as well as consultation with the unions if there was a difference. In its submission, the Association for Quality Education (AQE) feared a loss of autonomy for schools and increased uniformity and control.
The comments on clause 5 from the Governing Bodies Association (GBA) may be of interest to Members with regard to the content of model schemes. The GBA noted that the Minister had stated that the RPA is not about taking autonomy away from particular groups of schools, but instead it is about giving all schools the autonomy to run their own affairs. However, the GBA felt that that was not provided for in the Bill and stated that it was important to provide for that in law rather than in non-binding assurances.
It may be that the model employment schemes will provide a level of autonomy in decision-making for schools, which raises a question of how the content of model schemes is set; will it be set in the Bill, in regulations that require Assembly approval — affirmative or negative — or left to the discretion of the Department, the Minister and the ESA?
Members will recall that clause 8(2) requires the ESA to give effect to any decision that a board of governors takes in accordance with an employment scheme, which highlights the importance of the terms of the employment scheme. Members will also recall that NICIE felt that only direct employment by boards of governors would enable the ethos of its schools to be adequately maintained. I refer members to the analysis of NICIE’s reply to the Department’s response to the original NICIE submission on the Bill.
Members will recall that the Department’s response to the Western Education and Library Board’s view on clause 3 stated that:
“The delegation arrangements and the detailed roles of the board of governors will be set out in schemes of employment”.
It went on to say that:
“in view of the concerns expressed, the Minister is considering the need for subordinate legislation to govern the content of employment schemes.”
Earlier, I read out the comment made by departmental officials on 1 April after the evidence session with the chief executives of the education and library boards. I will not read out that comment again, as it was recorded earlier. It may be that if a suitably robust model scheme, ensuring a high level of delegation from the ESA to particular types of schools, was set out in regulations, that would help to address some of the concerns raised by the GBA, NICIE and the AQE, provided that the schools they represent could adopt high-delegation employment schemes as of right. What are members’ views on that? Perhaps I should ask Chris about this matter. There was a comment that the Minister was considering the use of subordinate legislation to govern the content of employment schemes. Is there any further thinking on that?
Mr Stewart:
Not as yet, but the Minister will certainly be interested in the views of members as expressed today and the view expressed earlier that you felt such regulations, if properly drafted, would provide the certainty and clarity that you are looking for. The Minister will pay careful attention to that.
In relation to the potential scope of such regulations, I will illustrate one example for the benefit of members. Clause 4(1)(b) states that an employment scheme shall provide for:
“the determination of the staff complement of the school”.
A number of stakeholders read that as meaning that the ESA would determine the staff complement of schools. In fact, it is not intended to mean anything of the sort. It is intended to mean that boards of governors will determine the staff complement of the school. However, if a decision is taken to go down the route of subordinate legislation, the regulations would probably include a requirement that every scheme of management shall make it the responsibility of the board of governors to determine the staff complement of the school. I would hope that that would remove any doubt from stakeholders as to where that responsibility would lie.
The Chairperson:
Members will be content with that.
Mr D Bradley:
One of the fears of certain sectors is that the clause is a recipe for a command-and-control approach to employment in schools. If one looks at the various paragraphs of the clauses, the ESA appears in almost every sentence, and twice in some of them. One of the fears of those sectors is that it is an iron fist tightening around the control of employment in schools, which will squeeze out all the autonomy and flexibility that exists at the moment. For example, page five of the Commission for Catholic Education’s ‘Documentation in support of Commission Submission on the Education Bill for Northern Ireland’ states that:
“The Department failed to point out in their response that the ability of the Trustees to control schemes of management and employment is subject to the approval of the Education & Skills Authority (“the ESA”). This is a new development in relation to employment arrangements and one which potentially has far-reaching consequences.”
How do you respond to the anxiety in some sectors that the Department will use an iron fist to squeeze out the flexibility that schools have at the moment?
Mr Stewart:
I note that in the Hansard report of some six months ago, I was described as a reasonable chap; last week I was a Marxist guerrilla, and this week I have an iron fist. How far we have fallen. [Laughter.]
Mr D Bradley:
That is not directed at you personally, Chris. The iron fist was a reference to the ESA.
Mr Stewart:
I cannot think what we have done down the years to deserve that reputation among educationalists. Nevertheless, I recognise their concerns.
The sentence in the commission’s document is one way of describing the situation about which it has concerns. In effect, it is saying that it is concerned about the fact that we will ask boards of governors to draw up rules and to stick to them, and to have those rules approved by the statutory education authority. It is our contention that that is not in any way an unreasonable thing to seek to bring about in legislation. As I said earlier, the net effect is that boards of governors will operate arrangements that the trustees of schools have drawn up to appoint staff to schools that will be owned by the trustees, and that the ability of the ESA to interfere in that process in any way will be very significantly constrained. As we have said a number of times, the net effect of that is that the ESA will be under a legal obligation to put into effect any proper decision taken by boards of governors according to the arrangements that their trustees have put in place.
Mr D Bradley:
The commission said that the schemes formulated by trustees would be subject to the approval of the ESA. Under what circumstances would the ESA refuse to approve the schemes?
Mr Stewart:
The ESA could do so only if a scheme were unlawful, unreasonable or so far contrary to the education policies of the Minister of the day that it could not be approved. However, the key to avoiding the occurrence of that situation, and to providing the reassurance that stakeholders might look for, is in the model schemes. If a submitting authority were to adopt a model scheme, or a model scheme with only minor amendments, there would be little or no scope for the ESA to do anything other than approve that scheme.
Mr D Bradley:
How do you see the ESA, as a single employing authority, improving on the arrangements that we have at the moment?
Mr Stewart:
Under the arrangements that we have at the moment, the vast majority of schools are part of collective employment arrangements already. The figures are about 84% or 86%: about 14% of schools are employers in their own right. However, we do not have a single collective employer. We have the five education and library boards and the CCMS. Moving from six employing authorities to one offers the scope for improvements in efficiency and consistency as regards the operation of the terms and conditions of employment and the employment arrangements across the education sector. It gives us the scope for better and more effective planning of the education workforce, and for the redeployment of staff, not just in the redundancy situation that the Chairperson referred to earlier, but it gives us the opportunity for closer co-operation between schools and, perhaps, across sectors in pursuit of improvement.
The large and successful school will be in a much better position to put its arm round the less-successful school down the road to offer secondments and temporary postings of staff between schools, all of which is much easier to do with a single employer than it is under a multitude of employers.
The Chairperson:
This is a minefield. Is the Department drafting the high-delegation model scheme that a voluntary grammar or a Catholic maintained school could adopt as of right?
Mr Stewart:
We could do that. However, a better approach is the one that we are minded to follow, which is that the Department, or the ESA implementation team (ESAIT) on the Department’s behalf, could draw up the core of the scheme — the mechanistic procedural bits at the core of it — which would set down how a selection committee or appointment committee would be constituted and convened and the procedures that it would operate. However, we would then tell the voluntary grammar sector and the Catholic education sector to take that core of a scheme and turn it into something that would meet their needs and requirements. In particular, their main concern is that those employment arrangements would, somehow, be contrary to the ethos of their sector, so we would ask them to provide us with a draft model scheme that they feel contains sufficient safeguards to protect the ethos of their sector or education type.
The Chairperson:
Has that been done yet?
Mr Stewart:
I believe that that request has been made informally a number of times. We emphasized that when we circulated the work that ESAIT has done so far. The Catholic commission has written to the Minister and me, and when we respond in due course, we will want to make that offer again.
The Chairperson:
Has that offer been made to voluntary grammar schools?
Mr Stewart:
Yes.
The Chairperson:
The documentation that we received today from the Northern Ireland Commission for Catholic Education, and which was mentioned earlier, is well put together. I agree with the earlier comment that the document was probably put together by a raft of legal minds. The CCMS has been used as an example of good practice regarding the operational outcome of the process. However, in paragraph 6, page 6 of the documentation, the commission says:
“The fact that a school may, in certain circumstances, be entitled to obtain their own legal advice does not change the fact that the ESA retains ultimate decision making powers. Comparison with the present system that operates in Catholic Maintained Schools and the role of the Catholic Council for Maintained Schools (“CCMS”) is also misplaced. CCMS is a Catholic body committed to ensuring the ethos of Catholic schools and directly linked to the Trustees. The ESA is a state controlled secular body with no such link or commitment save that which is contained in section 8 of the Education Bill. As already stated, the duty on the ESA contained therein is so circumscribed that the Trustees could not and will not have confidence that ESA will protect (or could ever protect) the Catholic ethos.”
How do you square that circle?
Mr O’Dowd:
I have read that before. If you were to seek legal advice, you would not get Catholic, Presbyterian or Baptist legal advice, you would simply get legal advice.
The Chairperson:
Some people might argue that you can get those different types of legal advice.
Mr O’Dowd:
The ESA will have to operate under the same employment legislation as that which the CCMS and other bodies currently operate under. I do not understand why it makes any difference who seeks what legal advice or who is in control of the employment body. The ESA will have to operate under the legal framework that exists.
Mr Stewart:
I echo what John said, and to that I would add that I understand the commission’s position. In effect, the commission is saying that it could have confidence in an employing authority only if that authority overtly reflected the Catholic ethos. We are saying that we recognise the need for the Catholic ethos to be woven into the employment arrangements for Catholic schools, just as the ethos of any other type of school needs to woven into its employment arrangements. The way to do that is through the employment scheme, and the way to address the concern is to place the authorship of the employment scheme in the hands of the trustees, as they are the people who are responsible for fostering and developing the ethos of Catholic education. As John said, the organisation that is responsible for the mechanics and the heavy lifting at the end of the process is not the key to securing the ethos of Catholic education or any other type of education.
The Chairperson:
Ultimately, that is dependent on getting approval from the ESA.
Mr Stewart:
Of course; again, I do not think that it is unreasonable for the Minister to conclude that the employment arrangements for the delivery of that public service in all grant-aided schools ought to be under the scrutiny of, and subject to the approval of, the statutory education authority, which, in turn, is accountable to the Assembly through the Minister.
The Chairperson:
Let us take an example of an employment issue. I am not picking an example from the maintained sector because of my political position; rather, I am picking that sector because this issue could be of particular concern to it.
Take the example of two members of staff who cohabit without getting married. Say that the board of governors is concerned and takes one view and the ESA takes a completely different one. Is disciplinary action taken by the governors?
Mr Stewart:
Disciplinary action up to the point of dismissal is a matter for the board of governors only. If we follow the subordinate legislation route, that is one matter for which there would be regulation. The responsibility for drawing up disciplinary procedures and for operating them is for the board of governors only.
Earlier, John made the point that anyone who discharges an employment function in education is subject to the law. There is nothing that a board of governors or employer could do or not do that the ESA could do or not do. The law is the same in all cases.
The Chairperson:
There is still concern. For example, the North Eastern Education and Library Board said that:
“There is an issue relating to the availability of model schemes, as and when the legislation becomes operational, although it is noted that ESA retains the powers to determine the date when such schemes have to be submitted for approval. The Board assumes that these schemes/guidance are presently under development.”
Mr Stewart:
The board is correct.
The Chairperson:
It also raises concern that:
“The transfer of staff to the employment of ESA is a very sensitive issue for some sectors and hence the greater the clarity on this issue the easier the transition. These paragraphs should set out clearly the nature of the relationship between ESA and all grant aided schools and of the need for all grant aided schools to operate within a strategic framework as laid down in legislation.”
You would probably argue that that is the current situation.
Mr Stewart:
We argue that that is the situation. I do not believe that the legislation lacks the clarity that some of our colleagues on the boards seem to believe.
The term “employing authority” has developed a sort of mystique, which is, at times, unhelpful. An employing authority is just that: an authority that employs. It is simpler and more accurate to refer to the ESA as “the employer”. The ESA will employ all staff in all grant-aided schools. Boards of governors are not the employer. The employer is the ESA. Boards of governors will exercise a full range of employment functions on behalf of, and in the name of, the ESA.
Mr D Bradley:
Are there any circumstances in which the ESA, in its role as the employer, might intervene in the operation of an employment scheme which might, in some way, contravene the ethos of a sector?
Mr Stewart:
We do not envisage that an employment scheme will allow for the ESA to intervene in its operation unless the board of governors opt for that. For example, we imagine that voluntary grammar schools, which oppose those arrangements, would want the ESA’s role in employment arrangements to be as small as possible — it would rather the ESA had no role at all. Therefore, it would be limited to the very end of the appointment process or the dismissal process, if there is one; for example, issuing a contract or a notice of dismissal to a member of staff.
On the other hand, some schools, particularly small schools, may want to leave the operation of parts of the recruitment process in the ESA’s hands for particular posts or classes of posts. The point is that, in all cases, that is the choice of a board of governors; not one that the ESA imposes upon it.
We have acknowledged that the area where there is the greatest potential for conflict between what boards of governors wish to do and what the ESA is able to do is dismissal.
The ESA, as the employer in law, must consider carefully a decision by a board of governors that a member of staff should be dismissed; the ESA cannot simply rubber-stamp a decision. It must examine the procedures that a board of governors has followed in arriving at its decision, and it must answer the question whether the decision to dismiss is lawful — is it manifestly reasonable?
If the ESA is so satisfied, it must put into operation the decision of the board of governors; if it is not satisfied, it must not. The lawyers have told the Department that if the ESA does not follow proper procedure, a dismissal would automatically be deemed unfair and unlawful by a court or tribunal. However, that is the only instance in which I see any scope for the ESA to intervene or take a contrary view from that of a board of governors.
If the subordinate legislation route is followed with regard to recruitment, we are likely to say in regulations that the ESA may not appoint any member of staff to work in any grant-aided school unless the board of governors has decided that that is what should happen.
The Chairperson:
Would a school with a religious ethos employment scheme be supported by the ESA? Would the ESA as the employing body support such a school in dismissing a member of staff whose conduct was unacceptable according to the religious but not the secular ethos?
Mr Stewart:
Yes, provided that such a decision was lawful: a religious ethos does not allow an employer to act unlawfully. However, it is possible in law to discipline up to the point of dismissal a member of staff whose conduct interferes with the proper running of a school because that behaviour is contrary to a school’s ethos.
The Chairperson:
No doubt major issues remain about clauses 4 and 5. If member are happy, we will move along. Clause 6, “Reserve power of ESA to make employment scheme”, allows the ESA to make an employment scheme for schools in certain circumstances, where, 6(1)(c) states:
“it appears to ESA that a scheme submitted by the submitting authority of a school as required by subsection (1)(b) of section 5 does not accord with any guidance issued by ESA under subsection (3) of that section and cannot be made to do so merely by modifying it”.
The Ulster Teachers’ Union expressed itself satisfied with the reserve power. Other stakeholders might be less happy with such a reserve power in light of their comments on the underlying principles in clause 3. Bear in mind the analysis of the Northern Ireland Children’s Enterprise of those employment provisions.
Are members content with clause 6? In going through the clauses the Committee is trying to establish and underline the principle to which we referred earlier about where we think there might be requirement for regulation. Does any member have an issue with clause 6? I suspect, Chris, that you would say that clause 6 is a safety mechanism.
Mr Stewart:
It is precisely that. If the core of the policy is that employment arrangements hinge on employment schemes, then important scheme are important documents. We have to allow for the situation, hypothetical though it may be, whereby a school cannot or will not bring forward an employment scheme. There must be an employment scheme. In those circumstances, therefore, the ESA needs to be able to step in and fulfil that safety-net role.
The Chairperson:
We now move on to clause 7.
Miss McIlveen:
Under what circumstances would the ESA ask for a revision of an employment scheme, and does that work both ways?
Mr Stewart:
It would work both ways in the sense that the submitting authority, for reasons of its own, might want to change an employment scheme. The ESA triggering a change would be to allow for possible changes to the law.
If employment law changes or moves on in some way that would give rise to a need to change employment schemes, that is the mechanism by which we would do it. It is certainly not to allow for willy-nilly changes by the ESA or any attempt by it to reduce the autonomy of a school.
Miss McIlveen:
The Ulster Teachers’ Union was concerned about that being in place and that a school could change it willy-nilly.
Mr Stewart:
Yes, a school could, but it would be subject to the new scheme being approved by the ESA, and it would be subject to any new scheme still having to be in compliance with education and employment law.
Miss McIlveen:
There would have to be good reason for it.
Mr Stewart:
Yes.
The Chairperson:
The UTU was concerned, even though the Department stated:
“In keeping with the policy of maximising school autonomy, schools should be able to change their schemes of employment to reflect the ethos or if, for example, they wish to increase their role in employment matters.”
Is that still the case?
Mr Stewart:
Yes.
The Chairperson:
As there are no other comments on clause 7, we will move on to clause 8. We had particular difficulty with clauses 3 and 8. Clause 8 requires a board of governors to give effect to an employment scheme and ESA to give effect to any decision of a board of governors taken according to such a scheme. However, clause 8(3) gives the ESA a right to require a board of governors to reconsider any decision if the ESA is of the opinion that a decision has not been taken in accordance with the employment scheme. A board of governors will be required to reconsider if the ESA is not satisfied that the result of the consideration is in accordance with the employment scheme.
The AQE submission characterised that schools will be required to reconsider a matter until they agree with the proposal of the ESA. All employer functions are all delegated from the ESA and can be withdrawn it. The UTU and the South Eastern Education and Library Board (SEELB) supported the provision, but the SEELB felt that “ESA may require” should read “ESA will require” a board of governors to reconsider.
The Department’s response indicated that the Minister would consider such an amendment, but advised against it, preferring to leave the ESA with discretion in minor or trivial breaches of the employment scheme. That is another contentious issue.
Mr Stewart:
I wish that we could write the clause in plain English rather than in the language of the law. The clause states that there have to be rules for employment. The ESA and boards of governors have to stick to those rules, and if a board of governors does not stick to them, it has to do its work again. That is the sum effect of the clause.
The Chairperson:
Clause 9 is the “Transfer to ESA of staff employed by Boards of Governors”. Although some stakeholders oppose losing employer status in principle, those who commented on clause 9, specifically the UTU and the Northern Ireland Public Service Alliance (NIPSA), were in favour. The Southern Education and Library Board (SELB) raised a concern regarding the effect of clause 9 on existing legislation establishing voluntary grammar schools. The Department’s response was that the transfer provisions in clause 9 would be effective. Chris, would you like to comment on that?
Mr Stewart:
I do not recall, in detail, the particular concern that was raised, but we are satisfied that the clause is technically correct. It will effect the transfer of all staff employed by boards of governors to the ESA.
The Chairperson:
The SELB said that:
“Since voluntary grammar schools are grant-aided schools the Bill provides for ESA to be the employer of all their staff. The Board, being aware that certain voluntary grammar schools were established by legislation, inquired if the proposed legislation had the force to rescind legislation in respect of individual schools.”
Mr Stewart:
It does. The Assembly is all-powerful in that respect.
The Chairperson:
The response was that
“The Department confirms that the staff transfer provisions in the education Bill will take effect for all schools including voluntary grammar schools.”
Mr Stewart:
That is correct.
The Chairperson:
Clause 10 requires the ESA to prepare a scheme providing for the appointment of peripatetic teachers, their numbers and the purpose for which they are employed. Clause 10(2) defines the term “peripatetic teacher” and clause 10(3) requires the ESA to consult boards of governors and to take into account any departmental guidance in the preparation or revision of any such scheme.
Mr D Bradley:
For what purposes do you envisage the ESA employing peripatetic teachers? Do they include the hospital service, home teaching or something else?
Mr Stewart:
It could be for any such purpose; music tuition is often delivered by peripatetic teachers. Wherever there is a need for education to be delivered —
Mr D Bradley:
This clause is simply intended to replicate the services delivered at present by the education and library boards.
Mr Stewart:
That is right. This clause proposes nothing new.
The Chairperson:
Clause 11 provides that boards of governors of voluntary grammar schools may continue to pay, on behalf of the ESA, the salaries of staff of a school. Boards of governors of grant-maintained or integrated schools may continue to do so if they were doing so immediately before the transfer of employees to the ESA.
Except for schools that fall into certain categories, the budget share of a grant-aided school shall not include money in respect of salaries, etc. The AQE suggested that all schools, not just voluntary grammar schools, should be permitted to pay the staff salaries. Belfast Education and Library Board felt that one system of payment would be preferable and NIPSA suggested that all staff should be paid by the ESA on the grounds of cost-effectiveness and ensuring uniform application of pay policies. The South Eastern Education and Library Board’s submission favoured a single-payment system. The National Association of Head Teachers (NAHT) felt that the removal of the staff salary element of the delegated budget ran contrary to maximising local autonomy and was a retrograde step; NAHT also raised the issue of special schools having only partly delegated budgets. We understand that that issue will be addressed by the special educational needs review and the current funding formula. Is that correct?
Mr Stewart:
It is.
The Chairperson:
The Western Education and Library Board and the General Teaching Council for Northern Ireland (GTCNI) said that clause 11 will adversely affect arrangements for the common-funding formula. The Department said that it intends to bring forward a substantive amendment to commit all boards of governors to have control over school budgets and salaries. CCMS supports that course.
Will there be an amendment, Chris?
Mr Stewart:
Yes; we will bring the Committee the wording of it soon. This is one clause whereby we managed to unite stakeholders because, without exception, they all felt that we got it wrong. We acknowledge that we got it wrong. In doing one thing, we inadvertently did something that was not intended.
What lies behind the clause is an intention to allow those schools that run their own payment systems to continue to do so as they wish; it is an economy measure. Some stakeholders feel that that is wrong on policy grounds, and we note their views. However, the policy intention was merely to allow those schools that operate payment systems to continue to do so. We ran into an unintended consequence, the net effect of which, as NAHT rightly pointed out, is to remove or reduce the autonomy of controlled and maintained schools because they would no longer have control over their salaries budgets. That was not our intention; it was a mistake — our mistake, not the draughtsman’s mistake. We wrongly instructed him. We recognise that and want to rectify it. The net effect that we want to bring about is that the board of governors of every grant-aided school will have control over the salaries budget for that school and how it is spent. Regardless of who makes the actual payment, it is important that boards of governors control what is paid and to whom.
The Chairperson:
Here, too, it is urgent that we see the detail of the amendment.
Mr Stewart:
I accept that.
Mr D Bradley:
What of the more detailed aspects of salaries, such as awards of promotion, allowances and so on? Does it come under management schemes? How is it paid for?
Mr Stewart:
That would be a decision for boards of governors.
Mr D Bradley:
Would it be under management schemes?
Mr Stewart:
It would be under schemes of employment, perhaps, rather than schemes of management.
Mr D Bradley:
Would it be part of the employment scheme?
Mr Stewart:
Yes.
The Chairperson:
We have considered clauses 3 to 12. Next time, we will consider clauses 13 to 20.
Clause 12 relates to modification of employment law. In response to the stakeholders’ concerns, the Department said that clause 12 gives it unlimited powers to modify employment law in order to facilitate the operation of the employment arrangements in the Bill. The Department said that it is not aware of any need to modify employment law in that regard and has no plans to do so. Members will recall the concerns raised by the education and library boards in relation to the need for certainty and clarity about who was responsible in the event of employment litigation. Officials said that the arrangements in the Bill are modelled on the CCMS and that the Department can make specific regulations clarifying the relationship between CCMS, governors of Catholic maintained schools and employees in the event of litigation.
Do members have any issues with that, bearing in mind that it would allow the Department to make regulations to clarify relationships in the event of litigation?
Mr Stewart:
A great deal of the evidence presented to the Committee seems to focus on litigation. Reading the evidence, one would think that boards of governors do nothing but sack staff, but I am not certain how common an occurrence it is. If there a need to modify or change legislation to address any lack of clarity, we will look at the scope for doing so. Our legal advisers stress that the question of who is responsible or made amenable if there is a complaint about an employment matter is largely for the courts or tribunals to determine. They will not be slow at joining to proceedings any person who or body that has played a part in a decision that is the subject of a complaint. That is a decision for them, not the Department. I do not think that the courts would look too kindly on any attempt by us to intervene in that.
The Chairperson:
Why was the regulation made for CCMS?
Mr Stewart:
I do not recall; I was not involved at the time of that particular regulation. However, it must have been the case that it was felt that responsibilities were not clear and needed to be clarified and that regulations were brought forward to achieve that.
The Chairperson:
We will stop at clause 12 and return to schedule 1. There is an issue that we overlooked; it is my fault that we did so in an attempt to make haste. Paragraph 7 of schedule 1 states that the ESA may establish committees. We did not revisit the issue of local committees, but the Minister’s letter states clearly that:
“I do not propose to amend the Bill in this regard, as the existing clauses make adequate provision for the Committee and local structures.”
Does the Committee agree with that in principle? We talked earlier about making use of regulations that would give clarity, certainty and confidence. Is the Committee happy that it would also take that issue into consideration? I said at the time that there were issues not only about the employing authority but about the controlled sector and other matters. Regulations would be useful in providing clarity, certainty and confidence, given the fact that the Minister says that she does not propose to amend the Bill in that regard.
Mr O’Dowd:
Chris suggested that in order to change the amendment we would have to put the make-up of the committee in legislation. Although firming up the legislation might be an advantage, it may also be a disadvantage, because the ESA’s day-to-day operations and what it can do with committees may be restricted.
Mr Stewart:
I meant that the more we specify the structure of local committees in primary legislation, the more difficult it becomes to change committee memberships if the need to do so arises. If we specify a particular committee structure and, when the ESA has been up and running for, say, a year, we find that we need to change that structure, further primary legislation will have to be brought to the Assembly to do so. Therefore, it is not that the Minister in any way resists the need for clarity and certainty about the committee structure and what it will do; she simply wants to retain some flexibility while recognising that the ESA is a new type of organisation that will almost certainly have to evolve over time.
Mr D Bradley:
That might be why other people want certainty.
The Chairperson:
A huge number of issues has been raised, and John McCallister is at a disadvantage, so I hope that we can help him to come to grips with them. For instance, there has been much concern about the establishment of committees, what they might look like and their membership. The simple line that the ESA may establish committees is pretty bland; indeed, the ESA could decide to disestablish committees. At this stage, all we want is an idea of whether legislation would provide the clarity, certainty and confidence that we seek. The nature of the committees need not be defined specifically; however, even a broad-brush picture would be more than we have in the Bill, which is merely that the “ESA may establish committees”. Are members content that regulations could provide a solution?
Members indicated assent.
The Chairperson:
Thank you, Chris and Jeff.