COMMITTEE FOR EDUCATION

OFFICIAL REPORT

(Hansard)

Education Bill

16 September 2009

Members present for all or part of the proceedings:

Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Jonathan Craig
Mr Trevor Lunn
Mr John McCallister
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Alastair Ross

Witnesses:

Mr Chris Stewart ) Department of Education
Ms Eve Stewart )

The Chairperson (Mr Storey):

I welcome Chris Stewart and the departmental officials to this morning’s Committee meeting on the Education Bill. I remind you that the meeting is being reported by Hansard. I want to ensure that we work through the Bill as simply as possible this week, because members raised concerns last week about having to use a couple of folders. We will stay with the white folder, as best we can. We are awaiting more copies of the second version of the draft report, but there is one copy to share among members. You can set the black folders to the side.

Mr B McCrea:

Before we proceed, I would like to deal with a couple of matters arising. The amended clause 3(2)(a) will deal with employment schemes, and clause 31 with schemes of management. They relate to school governance and trustees, but they contradict the Minister’s letter of 17 June, in which she said:

“I have also made it clear that ownership will not convey any advantage or disadvantage to any school or sector in terms of the planning, governance, or funding of education.”

The amendments confirm the link between the ownership of schools and their governance, and it leads to a questioning of the Minister’s statement. We would like a response to that.

It just gives members more papers to read.

Mr B McCrea:

Other schools are designated as grammar schools, integrated schools, and so on. CnaG’s argument is that there is no designation for an Irish-medium school.

Mr C Stewart:

Mr C Stewart:

That is one possible approach. However, it might attract the very danger that concerns CnaG: a school might be officially designated as an Irish-medium or an Irish-speaking school without any guarantee that the form of education delivered in it is in the Irish language. That seems to be CnaG’s main concern. It feels very strongly that the immersion model of Irish-medium education is the correct one. That conclusion was supported by its view of Irish-medium policy, and it would want to ensure that an Irish-medium school is a school in which children and young people are taught in Irish. The mere designation in a scheme would not offer CnaG that guarantee or reassurance.

Mr B McCrea:

Dominic is better at arguing for CnaG than I, but it seems to me that there is a direction of travel here. Where a school is designated as Irish-medium, there would be certain expectations about the type of education that that school offered.

Equally, if a school is designated as an academic school, there would be certain expectations about the way that things were done. When trying to progress issues, what is sauce for the goose is sauce for the gander, and getting it right will reassure people that their views are being respected.

I cannot sign up to the one-size-fits-all approach because I believe in parental choice. It may not be my choice, but parents should have that choice, and we must ensure that there is a certain level of provision across the Province through area-based planning. Perhaps, as you have said, the law of unintended consequences brings a happy happenstance; nevertheless, it may be better to have equivalence across the board to allow for the development of other issues.

Mr C Stewart:

I can see where you are coming from on that, but I think that equivalence or a one-size-fits-all-approach, albeit flexible, might be difficult to achieve. Definitions arise for a variety of reasons. There is, for example, some commonality between the Irish-medium sector and the grammar sector in that the definitions of both need to turn on the nature of the education that is provided. For the integrated sector the situation is different, because the definition turns on the composition of the school population and is not really linked to the curriculum or the form of education. As has been said, it is possible to have an integrated grammar school or an integrated Irish-medium grammar school — I do not think that one of those exists yet, but it is certainly permissible under the law.

Mr B McCrea:

Mr D Bradley:

The Chairperson forwarded a letter that he received from Comhairle na Gaelscolaíochta to you in June, which outlined a number of issues that it wants the Department to address. Is that process ongoing?

Mr C Stewart:

Mr C Stewart:

At this time, any amendment stands only as a proposed amendment until the Minister or a Member tables it. The amendments have not yet been sent to the Executive for consideration. The guidance on legislative procedures suggests that that is done after Committee Stage. That, of course, would raise a difficulty, because there is a comparatively short time between Committee Stage and Consideration Stage. Therefore I believe that it is the Minister’s intention to take her proposed amendments to the Executive at the earliest possible date and probably before the end of Committee Stage. However, the Minister would, of course, make the Executive aware of the Committee’s views, wherever possible, on the proposed amendments, as the Executive would expect.

“The board would contend that the point to ‘amend, repeal, revoke or otherwise modify any statutory provision (including this order)’ should require prior and full consultation with the stakeholders who may be affected by any such change.”

I refer members to the Department’s response in paragraph 254 of the draft report that:

“The Minister would welcome the views of the Committee on the suggested duty to consult.”

At last week’s meeting, the Committee noted that clause 12(2) of the Bill specifies certain consultation requirements. It states:

“Before making any order under this section the Department shall consult—

(a) ESA; and

(b) such organisations representing—

(i) the interests of Boards of Governors of grant-aided schools; and

(ii) staff in such schools,

as appear to the Department to be appropriate.”

At last week’s meeting, members considered whether the same consultation requirement should apply where the Department proposes to exercise the power to make Orders pursuant to clause 50(1), bearing in mind that such an Order would have to be laid before, and positively affirmed by, a resolution of the Assembly. Chris, have you any comments on that?

Mr C Stewart:

The Minister will welcome the Committee’s view on that matter. At this point, she does not have a fixed or immovable view. As I said last week, I was slightly surprised to find that clause 12 would not be subject to that form of Assembly control. Nevertheless, counsel has drafted it in that way because that is the accepted and normal way to do things. It is not a new type of provision or a new provision in education law. A similar power to modify employment legislation exists in schedule 2 of the Education Reform (Northern Ireland) Order 1989.

The Chairperson:

In members’ folders, there is a letter from Eve Stewart about the Minister’s outstanding responses to the Committee. It states:

“The Minister does not believe there is a need to insert a consultation requirement in clause 50. Clause 51(3) requires a draft of the Order under clause 50(1) to be laid and approved by resolution of the Assembly. This is in our opinion a higher standard to meet than a consultation requirement.”

Her response on clause 12(1) states:

“The rationale for the different levels of Assembly control is that clause 50 can be used to amend the Act itself, whereas clause 12 is a power to modify employment law to reflect the provisions of the Act. Therefore the Minister does not intend to move such an amendment.”

The Committee should consider whether there is any merit in amending clause 50(1) by adding a reference to clause 12. For example, it could state that no Order shall be made under clause 12(1) or 50(1) unless a draft of the Order has been laid before and approved by resolution of the Assembly. That would give the Assembly the power and control, and there would be no way that one element of the legislation could be used to do something else that is not clearly defined in one clause of the Bill. What you cannot get in clause 50 or 51, you could get by using clause 12.

Mr C Stewart:

Only in relation to employment law.

The Chairperson:

Yes, but we need to settle that question in our minds. Does the Committee think that such an amendment would be useful? What would be the implications of such an amendment in light of the Minister’s response?

Mr C Stewart:

“consolidation exercises are major undertakings, and are normally carried out after, rather than during, major legislative reform”.

Mr C Stewart:

Precisely; one does not try to hit a moving target.

The Chairperson:

As the draft report notes, that issue was already raised by a member of the Committee on 18 February 2009.

The response from the departmental officials is also set out in the draft report. It describes the task as “mammoth and extremely technical.” Members will note a sequence of events that precede consolidation:

“‘When the two Bills on RPA are finalised — and, perhaps, one Bill to reform the legislation generally — we might be able ask counsel to create one consolidated piece of legislation.’”

Mr C Stewart:

It may be possible at that point, Chairman. I agree with the sentiments that may have prompted the Western Board’s comment: there is far too much legislation in education. It is difficult for those involved in education to deal with 11 primary Orders and Acts, and soon, one hopes, 12 or 13. Frankly, it is difficult even for the Department to keep track of it all. We share the desire to have a much smaller body of legislation. However, we are often asked to do that as if it were a simple and straightforward task; it is not. It would take several years and the work of many staff.

The Chairperson:

When we started our scrutiny of the Bill, we saw that there were 11 pieces of legislation. It is sometimes difficult for the Committee to comprehend matters relating to the Bill; a simple example of that this morning was when we keep referring to clauses 50 and 51 and then back to clause 12. That is in one piece of legislation, but there are references to other Orders throughout the Bill. Would it take that length of time to consolidate the legislative framework?

Mr C Stewart:

The process leading to consolidation would certainly take that length of time. The financing provisions that we referred to earlier, for example, are Byzantine in their complexity. Everyone would welcome a simplification of those provisions, and a move to a much simpler and more straightforward legislation on schools finance would have to be made first. We would need to adopt a new model of schools financing, repeal all existing provisions and introduce new ones that encapsulate the new model.

Similarly, if circumstances permit, we may want to simplify and clarify the arrangements on school governance; we may also want to deal with other provisions of the legislation. Having completed the remodelling or re-engineering of the legislation, we would undertake the consolidation task. It would be extremely difficult, challenging and resource- and time-intensive.

The Chairperson:

Do members have a view on whether the Department should consider consolidation at some stage?

Mr Lunn:

In February, I might have mentioned the task of dealing with all the previous Orders. It is not something that the Department can look at now; it is one for the future. The word “Byzantine” hardly begins to cover it; it would be a massive task. However, it might not be such a massive task if it were done gradually. It seems to be suggested here that, at some stage, the Department will be asked to accommodate all the Orders in one exercise. It would be a massive task, but it may be possible to look at it in an orderly way. The Orders could be considered gradually, starting with the oldest and moving on to what we are discussing now.

Mr C Stewart:

What the Chairperson suggests sounds terrific in theory, but in practice I am sure that it is something that Chris could do without.

Mr C Stewart:

It is perhaps best if I do not respond to that.

Mr Lunn:

I said it for you.

The Chairperson:

The Committee has already received documents indicating that changes will take place. However, let us move on.

Clause 53, “Minor and consequential amendments and repeals and revocations” applies to schedules 7 and 8. The Committee has received no stakeholder submissions on clause 53, and those that it has received for schedules 7 and 8 will be covered when we examine those schedules. Are there any comments on clause 53?

Mr Lunn:

None. Agreed. Move on.

The Chairperson:

At least we have some agreement on minor and consequential amendments. Chris, do you have any comment?

Mr C Stewart:

No. It is the most straightforward of straightforward provisions. You will not see a Bill without a similar provision.

The Chairperson:

Clause 54 contains provision for the commencement of the Bill. I refer members to paragraph 239 of the draft report, which relates to that clause. I also refer members to the extract from the departmental officials’ briefing to the Committee on 18 February 2009. It sets out the two methods of commencing the provisions of the Bill, either by Royal Assent or by commencement orders made by the Department under clause 54. The extract goes on to note that the commencement arrangements are unusual in that all the substantive provisions of the Bill will be initiated by means of commencement orders so that the commencement of the first Act can be adjusted if necessary to ensure that it remains synchronised with the second Act. That will enable the single legislative programme approved by the Minister and the Executive to be reflected.

Do you have any comment to make on that, Chris?

Mr C Stewart:

That is a very accurate description of the approach behind the commencement of the Bill.

Mr B McCrea:

Clause 54(2) states that:

“the Department may by order”.

Yes and no is the unhelpful reply. I am over-simplifying, but the common funding formula defines how much money schools get and what they get it for. However, in legislation there are Byzantine arrangements for the mechanisms by which schools receive their money under the common funding formula. At its simplest, controlled maintained schools receive delegated budgets, and others receive maintenance grants. They get comparable amounts of money to do comparable things, but they get them through different legislative routes, to which differing degrees of control and administration are applied.

In pursuit of the policy of maximising the autonomy of schools, the Minister may, at some point, decide to try to move all schools to grants rather than delegated budgets.

The Chairperson:

Members are content with schedule 3, subject to its being amended as the Department proposes. We will go through the amendments later; at this stage, however, we want to go through the schedule.

Schedule 4 is the “Transfer of certain assets and liabilities of CCMS before appointed day”. Paragraph 284 of the draft report relates to the commencement arrangements for the provision and the reasons for them. Paragraph 285 of the draft report notes that on 4 September the Department provided the Committee with a proposed amendment to paragraph 2(3)(b) of schedule 4, which refers to clause 49, in which the relevant Church authorities are listed. However, clause 49 is being removed. Paragraph 2(3)(b) of schedule 4 refers to:

“the relevant church authorities (as defined in section 49(5))”

The Chairperson:

Are there any further comments on schedule 4, members? Are members content with schedule 4, subject to the amendment that is proposed by the Department? As there are no comments, we shall move on.

Schedule 5 deals with the transfer of certain staff of the Department. Paragraph 287 onwards of the draft report deals with that clause, which makes provision for the transfer of staff from the Department to the ESA. Staff will be afforded protection of their terms and conditions of employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

In that context, CnaG raised a concern about the protection of its staff who will transfer to the ESA. The Department’s response is set out at paragraph 288. Of course, that relates to the issue of the hybrid Bill, Chris.

Mr C Stewart:

The position remains as advised in that correspondence, Chairman. CnaG has a perfectly reasonable expectation that its staff who transfer will receive the same level of protection as staff from other any other organisation. The Minister has given an absolute assurance that that will be the case.

However, for the reasons that have been given to the Committee previously, it is not possible to include provisions to that effect in the Bill. That would have the effect of turning the Bill into a hybrid Bill — a mixture of public and private law. As yet, the Assembly does not have the agreed procedures to take forward a hybrid Bill. Therefore, if we attempted to do what CnaG wants, in the way that it has asked, the net result would be a significant delay in the legislation.

However, we can give effect to the request administratively. It is the case that a CnaG member of staff who transfers will do so with exactly the same protection as regards his or her pay and conditions and pension entitlement as any other member of staff.

The Chairperson:

Have members any further comments? If not, are they content with schedule 5 as it appears in the Bill? As there are no comments, we shall move on.

Schedule 6 is entitled:

“Schedule 1A to the Education (Northern Ireland) Order 1998, as inserted”

It is dealt with at paragraph 289 of the draft Committee report. Clause 29 and schedule 6 insert a new schedule 1A into the 1998 Order, which makes provision for investigation, hearing and determination of disciplinary cases by the General Teaching Council. The Committee considered clause 29 at its meeting on 10 September. At that stage, it indicated that it is content with the clause. If members have no further comments, we shall move on.

Paragraph 290 of the draft report relates to schedule 7 and is entitled ‘Minor and consequential amendments’. It quotes from a letter from the Minister to the Committee dated 17 June 2009:

“An amendment is proposed to Article 29(6) of the 2006 Education Order. This amendment will enable the Department to put in place the appropriate arrangements to facilitate a new exceptional circumstances procedure in relation to post-primary school admissions.”

I believe — and colleagues will correct me if I misquote it — that our advice was that that change was not required because the Minister felt that sufficient consultation requirements were already in place. However, at the risk of giving a misleading answer, I will check that and come back to you.

The Chairperson:

The NEELB said:

“In relation to Schedule 7 and proposals relating to controlled primary and secondary education, the Board would wish to reserve its position until the outcome of the consultation on RPA Policy Paper 20 is known. Although the general approach as outlined appears sound there may need to be an accommodation depending on the structures that eventually emerge for the management of the controlled estate and the role of the Transferors. The Board notes that in relation to the future of a school, the legislation does not include consultation with non-teaching staff and pupils. Is this not a serious omission?”

Mr C Stewart:

I do not know whether we are convinced that it is a serious omission. Consultation with those two parties could, and should — and I am sure that it does — take place. I am not certain that we will be convinced of the need to go one stage further and create a formal requirement in legislation. Although the Minister may not yet be convinced, if the Committee feels strongly about that matter, she will want to consider it.

The Chairperson:

From what we gather, the Minister indicated that she saw value in adding non-teaching staff.

Mr C Stewart:

I see the value in consultation. Whether or not we need yet more legislation and more requirements on consultation is, perhaps, another matter.

Mr D Bradley:

The notes state:

“Paragraph 9(4) of Schedule 7 to the Bill will insert a new article (14) into the 1986 Order, dealing with development proposals. Under that article, the trustees of any school must be consulted about a development proposal that would affect the school.”

Mr C Stewart:

That rings a bell.

Mr D Bradley:

Has the Committee seen the wording of that?

Mr C Stewart:

It is contained in new article 14, which appears on page 49 of the Bill. The particular wording is at line 4 of page 50.

The Chairperson:

The Committee will note the concerns that have been raised about the regulations, and we will move on to consider schedule 8, the final schedule of the Bill, which deals with repeals.

Paragraphs 297 to 301 of the Committee’s draft report deal with schedule 8, and I refer members to paragraph 298, which deals with CCMS’s concerns about the repeal of schedule 2 of the Education (Northern Ireland) Order 1998. The Department’s initial response was that:

“respective roles of boards of governors and the ESA will be set out in schemes of employment.”

The Chairperson:

I want to consider the two letters that we received yesterday evening from the Minister and the Department, which have been tabled at B3 in the yellow folder. The letter from the Department responds to many of the outstanding issues raised by the Committee. The letter from the Minister advises the Committee that she will respond shortly on three amendments suggested by Sir Reg Empey, the National Society for the Prevention of Cruelty to Children and CnaG, and responds to the Committee’s letter of 9 September, following on from last week’s meeting regarding the local structures of the ESA and also on schemes of employment.

We will deal with the letter from the Minister first and then with the letter from Eve Stewart. Do members have any comments about the letter from the Minister?

Mr C Stewart:

May I offer a point of information that is relevant to one aspect of the Minister’s letter? Unfortunately, just before lunch, I inadvertently misled the Deputy Chairperson in response to one of his questions; I was inaccurate, and I apologise. There were two letters from CnaG, and I had forgotten about one of them; their content overlaps to a degree. The Minister replied to one of those letters, but has not yet replied to the other. I apologise for that omission. One issue in that letter remains outstanding, and that is mentioned in the Committee’s paperwork. It is the suggestion about the duty on the boards of governors of Irish-medium schools. I apologise to the Deputy Chairperson for having given him an inaccurate answer.

The Chairperson:

Thank you. I appreciate that clarification.

Mr Lunn:

Since I have asked for it every week for about 18 months, I should welcome the Minister’s increase in the number of members of the ESA board and her commitment to stick to the maximum number, which is 14. That was the limit of my expectations, so I am very pleased about that.

The Chairperson:

I am concerned about what the Minister says in today’s letter to the Committee; at the end of the paragraph entitled “Membership of the ESA” she says:

“I am not convinced of the need for the possible amendment as discussed by the committee for a further duty, and I am not minded to support it.”

I am concerned, because although the membership of the ESA board has been increased to a maximum of 14, education is not the same as education and library boards or health: it is more complex and diverse. If the ESA board is to have the confidence of the education community that it exists to serve, it is essential that it be reflective of that community, whether geographical, sectoral or religious. The worst scenario would be a board that, from day one, is perceived or accused of not being reflective of the community that it exists to serve. I speak as a member of the Committee when I say that the DUP has a severe concern that the Minister is not prepared to view that as a real issue that needs to be addressed if we are to have confidence in the ESA.

I am not convinced either that 14 as a maximum is the best option. Last week, we got into a debate about whether 11 or 14 was the best option. Does anyone have a comment?

Mr B McCrea:

The Minister’s letter states:

“I remain of the view that the role of the ESA is the management and delivery of services according to the policies of the Minister of the day.”

Usually, there is a caveat about the Assembly having some sort of influence on such issues, but that has been dropped. That confirms my view that the ESA is a Trojan horse being used by the Minister to put through policies that are not agreed by significant proportions of the people of Northern Ireland or by education stakeholders. There is a difficulty in that. People should realise that education is an important issue for many people, and a one-size-fits-all approach will not work.

There might have been an opportunity to get broad-based consensus if we had brought more people into the decision-making process, but that is not going to happen. I am concerned about the way in which the Minister intends to appoint people to the ESA board. They will be hand-picked by the Minister of the day and be given terms of reference forbidding independent thought; appointees will be allowed to implement only what the Minister decides. Although the Ulster Unionist Party has attempted to engage responsibly through the scrutiny of the Bill, the Minister’s letter does not in any way allay my fears about where the Bill is heading. I do not think that it will be sustainable. I urge departmental officials and the Minister to understand that if we are to make progress, we need to understand the points of views of others.

Mr O’Dowd:

I am disappointed and surprised that Basil has based that latest statement, which he has repeated many times in the Committee, on the fact that a line or a sentence has been deleted from a letter. I would not read any intentions into “policies of the Minister of the day.” That wording comes from various factors, including scrutiny by the Committee and implementation by the Assembly. The Minister will appoint people to the board in the same way that the Minister of Health appointed people to the various agencies, trusts and boards for which he has responsibility. Such appointment procedures are open to legal challenge by individuals who do not make it through the appointment process and by anybody else who believes that the appointment process has been unfair and does not reflect all the principles of open and fair employment.

It is the same way in which the Minister of Culture, Arts and Leisure appointed nine councillors to the Library Authority. It is not as though the Minister of Education has pulled an appointment process out of thin air; the appointments process has been approved by the Commissioner for Public Appointments, who will monitor and regulate it. That process is open to judicial review if it does not work. How many safeguards do you require?

You should be open and honest if you are opposing the Bill for political reasons. You say that you are open to persuasion and wish to enter dialogue; however, I am the Sinn Féin spokesperson for education, and you have never once rapped on my door and asked to talk about the Education Bill. You have never approached me to suggest that we sit down and talk about the ESA, party to party.

Mr B McCrea:

I have, however, spoken to the Minister of Education and her adviser about several issues. I think that she said that that would not lead anywhere because her mind was made up.

Mr O’Dowd:

Is that a direct quotation?

Mr B McCrea:

It would not be right to give a direct quotation, but that is the essence of her words. I am open to correction if that is not the case.

It is not sustainable for people to say that there is one view, and only one view, on education. There are fundamental differences of opinion, and I am not saying that one is right and another wrong; I am just saying that the different ways of educating our children should be reflected. My party happens to believe in the primacy of parental choice. I accept that there are other models that can be taken on board. As you say, I have stated it before, but I do not like procedural methods being used to get around policy differences. The scrutiny of the Committee and the oversight of the Assembly amounts to nothing, because there is no possibility of changing things after the event.

You said that I was making this a political issue as though that makes it a dirty issue, but I am here as a political representative; everything that we do here is about politics and trying to find a way forward. If the Bill is used as a way of getting round all the objections, there will be further objections from the community. Phones work both ways, John. I am not aware of you, as Sinn Féin’s spokesperson for education and a representative of the Minister, ever coming to me to talk about the matter and attempt to come up with a solution. I am willing to engage if you want to engage.

Mr O’Dowd:

I will take you up on that offer, but I will do so as a representative of the party rather than of the Minister.

The member opposite seems to be confused about the role of the ESA. The ESA will not exist to carry out the role of the Committee or the Assembly; it will exist to implement and manage day-to-day educational practices. The implementation of that and the policies and procedures that flow from the ESA will be directed by the Department or the Minister and by the policies and statements that have to be agreed by the Assembly and the Committee.

Perhaps Mr McCrea wants to live in quangoland for the rest of his life. I want to move away from quangos; that is why the Assembly is in place. People are elected to this place to debate politics and to thrash out solutions, and I have no difficulty with what you said in that regard. When I say that you are approaching the Bill from a political point of view, I do not mean left, right, unionist or republican; rather, I mean a tactical position of stopping the Bill because of the Minister who sponsored it. If that is the case, I think that you are making —

Mr B McCrea:

That is not what I said. My party is concerned about the Bill because, if I read the letter correctly, it will be used to implement the policies of the Minister of the day.

The problem is that I have no influence on the policies of the Minister of the day; yet many people who talk to me and other Committee members disagree with the policies of the Minister of the day. We will be creating a large bureaucracy, not dissimilar to the Department of Education, to which people can come with good ideas, yet those ideas will be turned down because of what is stated in the regulations.

The Chairperson:

I do not want the Committee to become embroiled in difficulties that have arisen in correspondence between the Ulster Unionist Party and Sinn Féin; that is an issue for those parties. I have raised a concern from my party’s perspective about the Minister’s response. It behoves the parties in the Committee to regard that letter as outlining the Minister’s definitive position and vote accordingly on the amendments.

If John’s analysis is correct, why did the Catholic bishops intervene on employment issues? They raised genuine concerns that will now be reflected in changes to the Bill. Basil and others are raising genuine concerns about how the Minister’s intentions will affect a particular sector or sectors. John, you say that there is nothing wrong and that there is no cause for concern. You advocate that we all sign up because the ESA will deal only with how to organise chairs, cut grass, and so forth.

If that were the case, amendments would have not been proposed by the Minister to deal with the genuine concerns of the Catholic bishops. Therefore, we must take seriously the concerns of members and other organisations who feel that some provisions of the Bill do not reflect their needs as education providers.

Mr O’Dowd:

Let me clarify. Basil objects to the Minister’s letter because several words are missing from it that had been included in a previous letter. I would not read too much into that. The process, although painstaking, repetitive and sometimes monotonous, has been useful. Perhaps we could have done it differently or more efficiently, but it has been useful.

The Catholic bishops or trustees raised concerns before the process even started, and any genuine concerns should be listened to and, if possible, resolved. Many concerns were resolved as the Bill was being drafted. The ESA is an important body and represents a major change to the education system. Some members’ concern is that the ESA will carry out the policies of the Minister of the day: they should remember that the education boards, each with 35 or 40 members, were not policy-making forums; their role was to carry out the policies of the Minister of the day.

The Chairperson:

Other elements in the letter include the local structures about which the Minister says:

“The regulations, far from providing certainty and clarity, may merely impose a solution with no guarantee that it will be fit for purpose, or that it will meet evolving local need.”

The Minister does not, therefore, accept what the Committee said about putting in place regulations to provide clarity. We sought clarity not so much on the form but on the function of local committees; it was the function that we considered important and we made that distinction. The maximum number of the ESA board members has now increased to 14. Remember, the Minister said that if 11 committees are set up, the chairperson will be one of the members of the ESA. That would mean someone having to be chairperson of two bodies.

Mr Lunn:

There will be 15 members.

The Chairperson:

That is correct; there will be 15 altogether, including the chairperson.

Mr O’Dowd:

It is important that the record reflect accurately what the Committee has done thus far. The Committee did not agree on an amendment; it suggested an amendment to the Minister.

The Chairperson:

Yes, and that amendment has been rejected. Therefore, it is up to the Committee to decide whether it should propose its own amendment, and we will come to that.

Mr B McCrea:

What is the position on that? Since the Committee is unlikely to get consensus on those issues, can it propose an amendment by majority vote?

The Committee Clerk:

Yes; a paper has been circulated to members dealing with that issue. The Committee must examine each of the 55 clauses and 8 schedules and decide on three possible options: first, the Committee must decide whether the clause as drafted stands — in other words with no amendments; secondly, the Committee can decide on the Minister’s amendments; thirdly, the Committee can propose its own amendments. Consensus is neither here nor there; any vote will be taken on a majority basis, as Mr McCrea suggested.

Those are the three possible decisions on each clause. The paper that has been circulated spells that process out and it is a process that must be completed by 24 September 2009, or by 25 September 2009 at the latest if the Committee decides to hold another meeting. However, that is for the Chairperson to discuss with members.

Mr B McCrea:

Would any vote that we take be recorded?

The Chairperson:

Yes.

I want to raise concerns about the employment arrangements in the Bill. In the final paragraph of the Minister’s letter of 16 September 2009, she states:

“I welcome the Committee’s support for the amended employment arrangements”.

That support, I feel, must be with the caveat that concern was expressed at the Committee meeting earlier today. From our discussion with Chris Stewart, the Committee learned that it seems that only one sector engaged in consultation with the Department, and in saying yea or nay to the Minister’s proposed amendments. That is gravely concerning, and raises a further concern regarding what the Bill proposes.

I wish to consider members’ views on the letter from Eve Stewart, which is a summary of some of the concerns and issues that were raised on clauses and schedules. One of the core elements of the letter, which provides new information, concerns the controlled schools ownership body that Basil raised earlier. There is concern about the timing of the establishment of that body and how it can be focused, given the very short timescale for establishing the ESA.

If members do not wish to raise issues, given that some of those issues were referred to earlier in the Committee’s examination of clause 12 and 50, I suggest that we continue our clause-by-clause scrutiny.

That done, the Committee will next week go through clauses 1 to 55 and schedules 1 to 8, clause by clause, following the procedure that the Committee Clerk outlined earlier. I am aware that the process is laborious and repetitive, but we had to go through the Bill clause by clause. All we have to do now is go through the departmental amendments, and that will conclude the process.

The Committee Clerk:

That is correct. Basil McCrea raised the business of the Committee’s formal clause-by-clause decision making on the Bill; that process will be recorded in the Committee’s report that will go before the Assembly for Consideration Stage.

The secretariat needs direction from the Committee. We are hearing individual members’ concerns about what amendments might be drafted. If the Committee is considering an amendment, members need to know all the possible options.

I fully support Dominic’s point. Approximately 20% of young people suffer from some sort of depression or face a mental challenge, and there are unfortunate incidents of suicide, and so on. We have already talked, even earlier in today’s meeting, about sexual education and domestic violence, which are the preserve of the Department of Health, Social Services and Public Safety. However, those issues affect education as well.

I truly believe that an emerging theme is the importance of young people’s mental well-being. If we ask schools to take a role in that — which we appear to be doing, because they have counsellors — we ought to give them the remit to do so. Otherwise, they, or the ESA, will be carrying out work that we have not asked them to do. The inclusion of that one word may sound insignificant: however, if we want to be progressive, it is an important way forward.

Mr D Bradley:

We are splitting hairs as regards the definitions of mental development, intellectual development, and so on. There is a close relationship between mental and intellectual development and mental health. If a child does not have good mental health, that has a detrimental influence on his or her mental and intellectual development. Therefore, if schools can help to foster — not be solely responsible for — good mental health in their programmes, which they do already in their social and personal development programmes, that enhances schools’ ability to nurture children’s mental and intellectual development.

Mr C Stewart:

You are coming dangerously close to taking my side in the argument. It is important that we do split hairs. If we do not have precision and clarity about the legislative duties that we place on organisations, it is a recipe for extreme difficulty down the line which, ultimately, would only be resolved by the courts.

It is absolutely correct to say that education services have a role to play in fostering mental health. You are absolutely correct to say that in the absence of mental health, intellectual development would certainly be impaired. In the absence of physical health, intellectual development would certainly be impaired. However, there is no proposal to make the education and skills authority responsible for the physical well-being of children and young people. There is a responsibility for it to contribute to children’s physical development. The two matters are quite different.

Mr Lunn:

I am listening to all that with interest. I am not sure whether we are talking about well-being, health or development. Basil started off talking about mental health, which appears to me to be, primarily, a matter for the Department of Health.

If the ESA manages to make a positive contribution to children’s spiritual, moral, cultural, social, intellectual and physical development, surely that should go a long way towards, at least, providing a level of mental well-being. When you move into mental health, that is a different matter. That clause will help to produce happy, well-rounded, holistically perfect children.

The Chairperson:

Is there a way out of that by means of delineation between function and duty? At present, we are talking about function under clause 2. However, clause 23 is about general duty. Can something be included there? Would that help? Perhaps, I am answering my own question. Is clause 23 merely a restatement of what appears in clause 2(2)(a)?

I understand what you are saying, Chris, about who would, ultimately, have responsibility. However, even with current legislation, we already have that problem because people try to argue that something is the responsibility of the Health Department, while others argue that it is the responsibility of the Education Department.

Mr C Stewart:

I believe that if the focus were to shift to clause 23, it would make matters worse, because it deals with the general duty of the Department, rather than that of the ESA. Certainly, if there are two Departments with overlapping statutory duties, it raises all sorts of issues.

The concern that members have expressed is a real one. No one would disagree with that. It is the need for a range of statutory authorities, which have a contribution to make, to operate in a joined-up way, and not to spend their time arguing with each other about who is responsible for what. I do not believe that there is any disagreement about the problem. However, there might be disagreement on what would be an effective solution.

It is our contention that overlapping statutory duties are not an effective solution. A better solution might lie in seeking some sort of compulsion on the ESA and health authorities to co-operate. That might take us into the realms of community planning, which would bring a third Department, our colleagues in the Department of the Environment (DOE), into the equation.

Mr B McCrea:

Perhaps it is late in the day to be going back over the issue, but a tree in Hillsborough was cut down without telling anyone because a second person was found hanged from it. A 14-year-old child hanged herself because she was depressed. I deal with such incidents all the time, and I do not know what to say on those occasions. The same thing happened in Dromore. If we consider the effect on the school, community, and so forth, the loss of a child who has taken his or her life is simply devastating.

That is a genuine concern that educationalists should be picking up on. Child psychologists and others are involved but we should also take some responsibility. To pick up on Dominic’s argument, it could be argued that spiritual and moral development are not the business of education and are the responsibility of the Churches. The similar argument that could be made about culture is that it is the responsibility of the Department of Culture, Arts and Leisure and is none of the Department of Education’s business. It could be argued that physical development is the responsibility of the Department of Health, Social Services and Public Safety, and not the Department of Education. It is not a matter of semantics, but a change in the way that schools should be seeking to bring up young people.

Dominic is right in saying that if some young people are either physically or mentally unwell, that will have a hugely detrimental impact on their development. That impact could spread to colleagues, friends, and so forth. Whether the issue is included in the Bill or not, the problem will persist and the schools will have to deal with it, but without any support. I am simply saying that, if we are seeking to be progressive by tackling a modern and emerging issue, the Department of Education, through its agent, the ESA, and the schools should address the issue of mental well-being.

The Chairperson:

The Committee will give a joint presentation with the Committee for Health, Social Services and Public Safety, probably in October, based on Professor Ferguson’s report that deals with health and education. Work is, therefore, ongoing. Speaking personally, I would not trust the ESA and the Department of Education with the issue of spiritual well-being, which is why my children are being educated in an independent Christian school, but I will not go into that. The fact that it is mentioned in the Bill does not cause me undue concern but the fact that another sector is not mentioned is a huge issue and a matter of concern.

Mr D Bradley:

I would be happy to insert the word “mental” between social and intellectual, so that it would read: social, mental, intellectual and physical development. There is a difference between the mind and intellect. Intellect is a function of the mind, but there is more to the mind than purely intellect. Someone may function adequately intellectually but suffer from poor mental health.

Mr C Stewart:

I will not second-guess what he will say, but I strongly suspect that legislative counsel would regard that as a tautology.

Mr D Bradley:

What the Office of the Legislative Counsel regards as a tautology may differ from what people living in the real world regard as a tautology.

Mr B McCrea:

What is the Ulster Scots version of tautology, as a matter of interest?

The Chairperson:

Mr C Stewart:

My concern is that that would be too strong.

Mrs O’Neill:

A lot of good work on mental health is being carried out jointly by the Health Department and the Education Department. In particular, there is a focus on some sort of work programme for mental-health issues to be dealt with in schools.

All the aspects of development that are mentioned in clause 2(2)(a) contribute to the overall well-being of a person. The clause takes a whole-person approach, and that is good. However, PlayBoard springs to mind as an example of something that is passed between the Health Department and the Education Department because we are not sure who is responsible for it. Chris, are you saying that we could end up in a similar situation with this provision?

Mr C Stewart:

That could happen, but another issue could arise if you give an education body a specific legal duty around mental health. At the moment, there is joint participation and working by the two sectors, but, in the area of mental health, the overall priorities are determined and led by the Health Department, which has the greater professional expertise in that area. If there are two bodies with similar duties, that will create rivalry. The Health Department and the Department of Education would both be bidding for scarce resources in the mental-health field, and arguing about where the priorities ought to be. It strikes me that that is not going to provide an effective solution to the sorts of problems that Basil quite correctly pointed to.

The Chairperson:

Surely that is an admission that the two Departments cannot come to an amicable arrangement as to what ought to be done. It is not a definitive interpretation. If you take Dominic’s point, the word “mental” would be used in the context of development and not in the context of health. That may not go far enough for Basil, but it would, at least, put the onus on the ESA to make sure that it pays due regard to mental development — I do not know whether we want to get into that. At least the word “mental” would be included in the clause. If it is not included, it will not even be considered.

Mr C Stewart:

I understand that, and I understand that it might provide some reassurance to members and, perhaps, the public at large. Forgive me, however, if I look at the matter through a civil servant’s eyes. Our job, when not dealing with legislation, is to make the best possible case for funding for education, to argue that it is the most important area for the Assembly to consider and to ask the Assembly to give us lots of money. If Eve and I were transferred to the Health Department tomorrow, we would do exactly the same job arguing for its priorities. Government always face the difficulty of allocating scarce resources between competing priorities. If we set up a situation whereby two Departments are making rival bids or arguments for the same thing, that will not solve the problem.

Mr B McCrea:

I think that the mental well-being of children in schools should be a fundamental responsibility of the Department of Education. I do not think that the issue can be addressed as well in other areas. I realise that that may involve a change in policy, and one which may have to be debated elsewhere, but I cannot get away from the fact that the mental well-being of children is inextricably linked with their overall well-being and their educational advancement. Indeed, the Committee has received papers on that fundamental issue, and we attended an event in the Long Gallery.

I am telling you now, folks, in the gentlest and nicest way possible, that whether you propose an amendment or not, I will be bringing an amendment to the House on the issue. The schools have been placed in an invidious position, and the Committee ought to give them the support that they require. Schools are best placed to tackle some of those issues, and they should have the support of their colleagues in the Department of Health. I am not suggesting that teachers should go to the hospitals to speak to patients there. My point is that children are in their teachers’ care, and there are serious ramifications if mental-health issues are not picked up on. We, as part of the education system, should be progressing that issue. My feelings on that issue are as strong as Mary’s.

Mr D Bradley:

I wish to make a proposal that reflects what Chris said earlier. I would be reasonably happy if the Committee proposed replacing the word “intellectual” with “mental” in clause 2(2)(a). I do not know whether Basil would be happy with that. To my mind, the word “mental” is a much more inclusive word. It includes intellectual development and the development of emotional intelligence, which is key to good mental health.

Mr B McCrea:

I would have a difficulty with the word “intellectual” being removed from that clause altogether. The whole idea of a school is that it should enhance people’s intellectual ability. I know that Dominic is seeking a compromise, and I am not averse to that, but I feel that I should raise that point.

The Chairperson:

In light of that conversation, and if Dominic is happy with the suggestion, can we ask the Committee Clerk and his staff to formulate an amendment that we could consider as a Committee? I am very conscious of the timing issue with respect to the Bill Office, as we are at a critical stage. However, if that amendment could be produced by next week, the Committee would be able to consider it.

Mr B McCrea:

OK. Thank you.

The Chairperson:

That discussion was very useful. Let us move on to consider clause 2(2)(b), to which the Department is proposing an amendment. That amendment clarifies that the duty on the ESA in relation to youth services is similar to the duty in relation to schools and educational services. Are members content with the amendment?

Members indicated assent.

The Chairperson:

That could be said of the other sectors. The Department’s own report identifies underachievement among working-class Protestant boys. It could be argued that a duty should be placed on the ESA with regard to controlled schools, as its own research shows there to be a huge problem there. Why can we not argue for equality? Why should we argue for one sector over another?

We move to clause 4, which relates to employment schemes for grant-aided schools. Members will recall stakeholders’ concerns on the issue of employment schemes. The Minister now proposes to amend clause 4 by inserting the following at the end:

“(4) The Department may by regulations make provision as to the form and content of employment schemes.”

This matter is covered in paragraphs 93 to 111 of the draft report. The Department’s employment paper and draft regulations have been received and are included in members’ packs. Do members have any comments? I suppose that this amendment follows on from the amendment to clause 3. If a change is made to clause 3, a change must be made to clause 4.

Mr C Stewart:

The two amendments are related, Chairman, but one does not necessarily follow the other. The change to clause 4 reflects the concern of many members and stakeholders that it is not sufficient to regulate employment schemes simply with guidance. Members and stakeholders felt that greater clarity and certainty were required in the form of subordinate legislation, and that is the approach that the Minister has decided to take.

The Chairperson:

If members do not have any comments, we will move on. Clause 6 relates to the reserve power of the ESA to make employment schemes. We are at paragraph 114 of the draft report, and the amendment appears to stem from the enabling provision that we have just considered in clause 4.

Mr C Stewart:

You are correct, Chairman. This one is consequential to the previous amendment.

The Chairperson:

If members do not have any comments, we will move on. The Department’s next proposed amendment is to clause 11, “S alaries, etc. of staff: administrative and financial arrangements”. Paragraphs 128 and 129 of the draft report relate to the background to this proposed amendment. Do members have any comments on clause 11, which enables staff salaries to be included in the budget share of all grant-aided schools?

Earlier, I spoke about designation, an issue that the Gaelschools were examining and which would require schools that are so designated to perform in a certain way. Therefore, there are ways of accommodating legitimate sectoral aims without making special cases. All that I am saying, Dominic, is that it seems that the Bill is specifically for Irish-language schools and not for everybody.

Mr D Bradley:

I do not agree with you, Basil. Academic schools or faith-based schools in the system —never those outside it — have not had the experience of being neglected, left out of policy making or not being provided for in service-training programmes. As a result, those schools would not need or want a specific mention in the Bill. The Irish-medium sector has had that experience, and, in some cases, it has had to fight to be included, even though it was entitled to be included from the beginning.

The amendment is an attempt to ensure that the Irish-medium sector does not have to continue to experience what it has experienced in the past. However, there may be other ways of satisfying its desires.

Mr Lunn:

There is a difference between the argument that the Committee had earlier on new clause 2(4A) and this amendment. The previous argument related to the ESA’s requirement to encourage the development of Irish-speaking schools, whereas this is purely to do with curriculum and examinations. Irish-speaking schools have special requirements with respect to curriculum materials and examinations, because they are conducted in a different language from other schools. I understand the first argument, but I cannot understand this one.

The Chairperson:

The argument relates to what is currently being provided, and provision is surely already being made for those who wish to have curriculum materials and examinations in Irish. The argument is about the need for an additional amendment to deal with one sector of education. The Irish-medium sector exists, and there are curriculum materials and examinations in Irish; therefore why must an additional requirement — that I assume would be very costly— be placed on the ESA?

Mr C Stewart:

I cannot comment on the size of the cost implication of the provision. However, the Irish-medium sector argues that the present curriculum support does not meet its needs. That is not because that support does not exist, but because it is not sophisticated enough and does not sufficiently recognise the particular needs of the sector. For example, it is not sufficient simply to translate English-language curriculum support materials into Irish; that does not meet all the needs of Irish-medium education.

In making its argument, CnaG acknowledges the developments that have taken place in the education organisations and that things are better than they were. However, they argue that things have not developed sufficiently, and that there is a need to give that development greater impetus through the proposed amendment.

Mr D Bradley:

It has implications for the staffing of the ESA. In order to fulfil the needs of Irish-medium education, the ESA will have to employ staff who are not only skilled in the language, but in the other aspects of the curriculum, examination, and design.

Mr B McCrea:

Other people — and I will not embarrass or bring the Chairperson into the debate — will make an argument that they are distinctly unhappy with the teaching of evolution and might want an amendment to the Bill that says that the Department must take cognisance of their deeply held beliefs. Issues of special cases will begin to emerge. I would rather include a general requirement on the Department or the ESA to look after the needs of all schools and to give them the appropriate level of support and advice. That can be done in other ways, rather than through including specific issues in the Bill. I am open to suggestions about how to do that. I only know that when one sector is accommodated, that raises the issue of including other sectors.

The Chairperson:

The Chairperson:

“(a) the requirements of industry, commerce and the professions regarding designated qualifications; and

(b) the requirements of people with special learning needs”.