COMMITTEE FOR EDUCATION

OFFICIAL REPORT

(Hansard)

Education Bill

1 July 2009

Mr B McCrea:

My view is that the issue might be resolved by regulation. Certain issues are creating an impasse that threatens to stop the passage of the Bill unless we resolve them. I wish to put it on record that I want issues that require further discussion and agreement with the Committee, such as the composition of the ESA, to be subject to regulation. That could be done by the affirmative resolution procedure.

The Chairperson:

The Committee reached consensus on that issue last week; it was felt necessary to consider the introduction of regulations. However, that was as a general principle; we did not get into specifics.

The issue is of concern and has been raised before. Paragraph 2(2) of schedule 1 says:

(2) In making appointments under sub-paragraph (1), the Department shall so far as practicable secure —
(a) that at any time a majority of members are councillors (within the meaning of the Local Government Act (Northern Ireland) 1972 (c. 9)); and
(b) that each member has experience in a field of activity relevant to the discharge of the functions of ESA.

We could insert a head (c) that would read:

“that members, as a group, are representative of the community in Northern Ireland.”

I apologise; I inadvertently mislead the Committee last week. I thought that the meeting was scheduled for this Friday; however, as you rightly say, it took place yesterday. I am more than happy to provide the Committee with a list of those who were invited and those who attended.

It was a successful meeting. Despite picking an extremely inconvenient day for people involved in education — the last day of term — we had a good turnout of approximately 15. We had an interesting, wide-ranging and helpful initial discussion, which was characterised by those with an interest in the controlled sector recognising the opportunity to take control of the exercise at an early stage. There was considerable enthusiasm for a sectoral body, and the discussion comprised mainly those with an interest in the sector quickly establishing a clear view of the ethos, values and identity of the sector and what it stands for. People in that sector broadly welcomed the opportunity to do so in a way that they had been unable to in the past.

The Chairperson:

You brought good news about the Minister’s willingness to introduce regulations to deal with concerns about employment schemes and the maintenance and protection of ethos.

Perhaps we should examine the creation of a system whereby if schools want to receive public funds for running and development costs and for paying teachers, all schools should be taken into the public domain. If those schools do not want to do that, that is fine, but they will have to fund themselves.

Mr Stewart:

The natural conclusion of that line of argument would mean the Department taking all schools into public ownership. That is not currently the Minister’s policy, and a great many, if not the majority, of the stakeholders who have been before the Committee would strongly oppose that.

Mr B McCrea:

I understand that. However, there is, as you have said, a logical argument about public funds and trying to attain equality. That is the reason why we are having that difficulty.

The Chairperson:

The Committee will return to that point.

We will now move on to clause 13. The Committee is doing well, but members will not be shown a video today. It is the last day of term, but they will not be receiving any perks.

Mr B McCrea:

What about toys? [Laughter.]

The Chairperson:

No, no toys either.

Clause 13 is entitled ‘ESA to provide or secure provision of training and advisory and support services for schools.’ The Bill’s explanatory and financial memorandum states that:

“This clause places a duty on ESA to provide or secure the training or further training and advisory and support services for Boards of Governors and teaching and other staff in grant-aided schools.”

I refer members to the stakeholder’s comments on this clause. Among the issues raised was a suggestion by the National Association of Head Teachers (NAHT) on behalf of itself, the Irish National Teachers' Organisation (INTO) and the Ulster Teachers’ Union (UTU) that the budget for training should be delegated to schools. Those organisations see the provision of training and support services by the ESA on a free-of-charge basis as a perpetuation of the current arrangements under which schools have no choice but to take what is on offer from the Curriculum Advisory and Support Service (CASS) or the Regional Training Unit (RTU). They suggest that the ESA should still provide training and support, but that the budget for that should be delegated to schools, meaning that they will be free to buy those services from the ESA or elsewhere if they wish. The Department believes that the obligation on the ESA to provide or secure the provision of those services would allow budgets to be delegated.

Chris, would the Department like to make any other comment on that? Will there be a difficulty with the ESA maintaining capacity to offer in-house training as currently provided by CASS and the RTU if there is no obligation on schools with delegated budgets to buy the ESA in-house offering?

Mr Stewart:

There is not much further to say on that. As many stakeholders have encouraged us to do in their representations to the Committee, we are looking at the idea of a mixed market. The ESA will be under a statutory duty and must ensure that services of the right type and standard are provided, but the Department does not envisage, and the legislation does not allow for, the ESA to have any guaranteed monopoly on that provision. Therefore, the challenge for the ESA is two-fold: first, it must respond positively to requests from schools or groups of schools to provide or commission services in a different way, perhaps involving the schools themselves; and, secondly, the ESA must also change the services that it provides to make them more responsive.

In answering that point, I fear that I may utterly fail to convince you that we constantly strive to do just that. It is difficult to draft statutory duties in a way that leaves them totally incapable of being interpreted pejoratively. Indeed, some stakeholders take an extremely pejorative interpretation of what are fairly standard approaches to legislation. There are those who are determined to see the ESA as Big Brother, and if they are determined to go down that route, there is little that we can do to frame the legislation to prevent them.

Mr B McCrea:

I do not want to go on, Chris, but I think that there is a way. Given that we are considering that clause, could you not come back with some suggestions about how to deal with my point. Are Bills not accompanied by notes sometimes?

Mr Stewart:

Bills are always accompanied by an explanatory and financial memorandum, although I am not sure whether such a document would provide the sort of illustration for which you are looking.

Mr B McCrea:

You are the expert. We agree on many things, and all I am asking you to do is to give some consideration to addressing those issues.

Mr Stewart:

Certainly, if a bit of explanation would help, that is not beyond our power. I would be less confident that we could reframe the legislation in a way that would address the concern. However, we can express in plain English what we want the clause to mean.

The Chairperson:

Could you provide the Committee with that?

Mr Stewart:

Yes, certainly.

The Chairperson:

There is an issue about the fact that clause 13 says:

“It is the duty of ESA to provide or secure”

Mr D Bradley:

According to the job description for the director of education quality and standards, which I mentioned earlier, the driving policies behind this particular function of the ESA would be ‘Every School a Good School’ and the literacy and numeracy strategies. It goes on to say:

“This will require a new approach to working with schools, including new relationships and re-definition of roles and responsibilities”.

The ESA obviously envisages a radically different approach. Unfortunately, it is very difficult for members of the Committee to see that from that clause, because, as you say, it does not vary much from clauses in previous legislation that applied to previous education bodies. The other unfortunate aspect is that we do not yet know what the new relationships will be, and how the roles and responsibilities will be redefined.

Mr Stewart:

First, you are right that the words of the Bill do not look much different from the words of previous legislation. The practice and the approach that is taken in the organisation are what need to change significantly, but there is no need for radically different legislation to bring that about.

That is a perfect example of what we have been talking about. The schools’ library service is extremely important; it is fundamental to education, but the provision of it requires only three lines of legislation. We have not felt the need to go for a more codified approach, because it is not necessary.

The Chairperson:

The BELB:

“notes with concern that securing provision is not the same as ‘providing’, and this could suggest that ESA will commission the youth services rather than provide or run the service itself.”

The Chairperson:

We will move on to clause 15, which is entitled:

“ESA to secure provision of educational and youth services and facilities”.

The explanatory and financial memorandum states that:

“This clause places a duty on ESA to secure the provision of adequate facilities for educational and youth services. Furthermore, ESA may, with the approval of the Department, carry out other activities, such as providing leaders and providing financial assistance to participants. ESA may also make grants for the establishment, maintenance or management of any facilities on such conditions as ESA may determine. This clause also allows ESA to make bye-laws, for example, preventing disorder and nuisance in these facilities.”

I remind members of the comments that we have received on clause 15. The South Eastern Education and Library Board (SEELB) suggests possible amendments to the clause. It says:

“As stated previously the Board is of the opinion that youth is an integral part of education and thus the separation into educational and youth services and facilities is unnecessary. The Board would suggest that (1)(a) and (1)(b) should be combined”.

Mr Stewart:

That is a further example of the point that we discussed earlier in relation to clause 2. For technical reasons, it is not possible to combine educational and youth services in a single provision as has been suggested. That would restrict the provision of youth services and reduce its flexibility in providing services for people up to the age of 25, which, we gather, is not unusual.

Clause 15 is fairly standard; in fact, it is a re-enactment of existing provision and contains nothing radically new. The Belfast Education and Library Board made the point that the word “secure” is used in that clause. It has a different meaning from “provide”, but there is nothing sinister in that; it is intended to reflect reality. There is a mixed market, particularly for youth services. In fact, most youth services are non-statutory and are provided by some 8,000 volunteers, and we do not wish to introduce legislation that would imperil that.

The Chairperson:

NIPSA had an issue with the words “together with any other person” in clause 15(2), because it felt that that could permit the privatisation through a PPP or the PFI.

Mr Stewart:

I recall that comment, as we were rather perplexed by it because the clause has nothing to do with the procurement of the schools estate. We could not understand NIPSA’s comment.

The Chairperson:

Clause 16 is entitled:

‘ESA to pay capital grants to voluntary and grant-maintained integrated schools’.

The clause provides that capital grants that were formerly paid to schools by the Department will be paid by the ESA. We received no comments from stakeholders on that clause.

Clause 17 is entitled:

“ESA to pay superannuation benefits of teachers”.

That clause provides that the superannuation benefits for teachers, which were formerly paid by the Department, will now be paid by the ESA.

Members should stop me if they feel that I am moving too quickly.

Clause 18 is entitled “Ancillary powers of ESA”. The clause affords the ESA the scope to do anything that, in its opinion, would be useful in fulfilling its functions; for example, the ability to form bodies corporate, to carry out research and to provide advice to other statutory bodies. Chris, was that power previously vested in the Department or in the boards?

Mr Stewart:

The boards have similar powers. Clause 18 is fairly standard and would be associated with any new public authority. Members who are also on the Committee for Culture, Arts and Leisure will probably recall a similar clause from their consideration of the Libraries Bill.

The Chairperson:

Clause 19 is entitled:

“Power of ESA to undertake commercial activities”.

The clause allows the ESA to charge other bodies or persons for goods or services provided by the ESA. The exercise of that power must be approved by the Department of Education and may be subject to certain conditions placed on the ESA by the Department.

Chris, do you have any examples of the types of commercial activity in which the ESA might engage? There is a concern that clause 19 gives the ESA huge power, and for many people perception is reality.

On one hand, the Department does not want the ESA to be Big Brother. However, despite those reassurances, the more one examines the Bill and recognises the multiple clauses that are added on, one could ultimately conclude that, by the end, a Big Brother has been constructed. The powers in clause 19 are an example. That provision — correct me if I am wrong — was not available to boards.

Mr Stewart:

Mr B McCrea:

There is an equality issue in that.

Mr Stewart:

Having held a position in OFMDFM, I can tell the Committee that there was a bunker, which was the responsibility of OFMDFM, but it was closed for health and safety reasons.

The Chairperson:

I am told that a review is taking place.

The Chairperson:

Mr Stewart:

Just to summarise, I would not argue that the promotion of mental health is nothing to do with the Department or with education. It clearly is, and education clearly has a vital role to play. I am merely advising of the need for caution and careful consideration of how we would frame a general duty for the Department, which, at face value, could be very similar to the general duty of the Department of Health, Social Services and Public Safety.

Mr B McCrea:

The papers will come back from NIAMH, but it did make a compelling presentation that showed how the mental health of children has long-term effects on their educational attainment. Therefore, there are two issues: one concerns distressing matters such as suicide, while the other concerns the organisation’s argument that picking up on mental distress at an early age results in a much-enhanced educational outcome. So, it is not just about well-being, it is also about enhancing educational outcome. That was the argument that that group made, and I think that the Committee should examine it.

Proposed new article 3(1)(e), which is contained in clause 23, mentions:

“an effective and efficient system of youth services”.

The Youth Service may be covered elsewhere in the Bill, but I might have missed the discussion on it. However, it is regarded by many as the Cinderella service. Do we give it more prominence? It is a fairly modest element in the Bill.

That probably ties in with the issue of multiple responsibility for 14- to 19-year-olds, which was mentioned earlier and which I accept. Clarity is needed about who will have to take our youth services forward. There is a general failing because youth services are under-resourced or are not a high enough priority or because of some other reason. Perhaps some other part of the Bill brings the issue to the fore.

The Chairperson:

Clause 2(2)(b) places a duty on the ESA to:

“ensure the provision of efficient and effective youth services”.

The Committee agreed last week that it would flesh out clause 2(2)(b) to make it similar to clause 2(2)(a).

Mr Stewart:

That is correct. The point is valid. We received many representations from stakeholders, and, indeed, from policy colleagues in the Department, who emphasised the importance of proper recognition being given to the contribution that youth services, and, indeed, early years educational services, make. Although they are not part of the formal system of schooling, they make a very significant — indeed, vital — contribution to the educational development of young people. Therefore, in everything that we do and say, including in the language that we use in legislation, we must not be seen to undersell or downplay the importance of, or the contribution of, youth services.

With that in mind, when we looked again at clause 2(2)(b) our view was that we had done exactly that — we had rather undersold the contribution of youth services. That is why we will attempt to make clause 2(2)(b) look much more like clause 2(2)(a). For reasons that we have gone into in the past, we cannot simply knock the two things together.

The same issue arises with clause 23, but it is constructed in a slightly different way from clause 2. One can read what will be the new article 3(1)(b) into everything that follows it. Therefore, I do not see the same need for amendment of clause 23 as there is for amendment to clause 2(2)(b). Nevertheless, your point is valid, and we need to ensure that, in everything that we do, we treat, and are seen to treat, youth services with similar esteem to that shown to the other parts of the education system.

Mr O’Dowd:

I have no difficulty with exploring whether mental well-being can be included in that clause. However, it could be argued that the promotion of the spiritual, moral, cultural, social, intellectual and physical development of children is also looking after their mental health, because mental-health illness appears for many reasons and has many contributory factors. If one looks after all those other factors, one is, in turn, looking after children’s mental health and well-being. However, if that can be explored and the Bill can be used to promote mental well-being, then I have no difficulty with its inclusion.

Mr B McCrea:

I did not want to take up too much time on the point. I realise that this is like throwing a big boulder into a millpond. However, we do not have sufficient facilities for young people other than schools. Therefore, I would like funds to be made available for a capital infrastructure programme to consider where to move young people on to in order to get them off the streets and to consider who would organise that. That seems to be a fairly chunky piece of work. However, when we look at other issues such as knife crime and alcoholism, we can see that do not have enough provision to deal with them, so the Bill might be an opportunity to put some meat on the bones. We are not talking about just a clause. Rather, let us really tackle this issue and say clearly what we will do for 14- to 19-year-olds outside of the school environment. I think that this is an opportunity. It is not just about amending the phrases.

Mr Stewart:

Part of the answer may come when the Committee sees the clauses on area planning in the second Bill, in which we have made it clear that the statutory duty on the ESA around area planning is not limited to schools; it will include schools, youth services and educational services. We want young people’s need for youth services to be addressed in the comprehensive and strategic way that you suggest, and for that to be reflected in areas plans and, therefore, in the capital allocation and the capital programme that will be driven by the area plans.

Mr B McCrea:

I will be guided by you as to what is possible. You were nodding in agreement when I said that we have not quite done enough, even in this first Bill. Although I accept that you might do more in the second Bill, there is a deficiency. It would be a positive step to address many of the concerns that people have raised. Maybe you can reflect on that and see whether there is anything you can do to help us with this Bill, and I will take on board what is being done in the second Bill.

The Chairperson:

Obviously, time is an issue. We had hoped to get sight of the second Bill. Will there be anything on this amendment over the next few weeks?

Mr Stewart:

Mr Stewart:

I feared that you might.

The Chairperson:

As I said earlier, I must leave now to attend to another commitment. We will conclude the meeting now rather than move on to clause 24.

On behalf of the Committee, I thank Chris and Jeff. We know that you will be working hard over the summer because a raft of information has still to come back to the Committee. We trust that you will have an enjoyable summer. Thank you very much.

Mr Stewart:

Thank you, Chairperson. We wish the same to you and the members.