Session 2009/2010

First Report

Committee for Education

Report on the Education Bill
(NIA 3/08)
Volume 2

TOGETHER WITH MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE AND
WRITTEN SUBMISSIONS RELATING TO THE REPORT

Ordered by The Committee for Education to be printed 30 September 2009
Report: NIA 4/09/10R (Committee for Education)

This document is available in a range of alternative formats.
For more information please contact the
Northern Ireland Assembly, Printed Paper Office,
Parliament Buildings, Stormont, Belfast, BT4 3XX
Tel: 028 9052 1078

Membership and Powers

The Committee for Education is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 46.

The Committee has power to:

Consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
Consider relevant secondary legislation and take the Committee stage of primary legislation
Call for persons and papers;
Initiate inquiries and make reports; and
Consider and advise on any matters brought to the Committee by the Minister for Education.

The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.

The membership of the Committee is as follows:

Mr Mervyn Storey (Chairperson)[1]
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Jonathan Craig[2] [3]
Mr Trevor Lunn
Mr John McCallister[4]
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd[5]
Ms Michelle O’Neill
Mr Alastair Ross[6] [7]

[1] With effect from 10 June 2008 Mr Mervyn Storey replaced Mr Sammy Wilson as Chairperson of the Committee for Education

[2] With effect from 14 September 2009 Mr Jonathan Craig replaced Mr Edwin Poots as a member of the Committee for Education

[3] With effect from 17 June 2008 Mr Edwin Poots replaced Mr Sammy Wilson as a member of the Committee for Education

[4] With effect from 22 June 2009 Mr John McCallister replaced Mr Tom Elliot as a member of the Committee for Education

[5] With effect from 20 May 2008 Mr John O’Dowd replaced Mr Paul Butler as a member of the Committee for Education

[6] With effect from 14 September 2009 Mr Alastair Ross replaces Mr Nelson McCausland as a member of the Committee for Education

[7] With effect from 31 March 2008 Mr Nelson McCausland replaced Mr Jeffery Donaldson as a member of the Committee for Education

Volume 1

Executive Summary 1

Section 1 - Introduction 5

Section 2 - Consideration of the Bill 11

Section 3 – Final Decisions on Clause by Clause Scrutiny of the Bill 75

Appendix 1

Minutes of Proceedings 87

Volume 2

Appendix 2

Minutes of Evidence 179

Volume 3

Appendix 3

Written Submissions 759

Appendix 4

Other Correspondence and Written Evidence considered by the Committee 1019

Appendix 5

List of Witnesses 1361

Appendix 2

Minutes of Evidence

Departmental Briefing on the Education Bill	10 December 2008
Departmental Briefing on the Structure of the Education and Skills Authority (ESA)	14 January 2009
Departmental Briefing on Sectoral Organisations; ESA as the Single Employing Authority and Review of Employment Opportunities for Teaching Staff	21 January 2009
Departmental Briefing on Designing Modern Education Services; and ESA Outline Business Case	28 January 2009
Departmental Briefing on Ownership of Controlled Schools’ Estate	4 February 2009
Departmental Briefing on Area Based Planning	11 February 2009
Departmental Briefing on legislation, secondary legislation powers and commencement provisions	18 February 2009
Departmental Briefing on provisions on Employment Schemes, Schemes of Management and Boards of Governors	25 February 2009
Departmental Briefing on Schedules and related Clauses	4 March 2009
Governing Bodies Association (GBA)	11 March 2009
Northern Ireland Voluntary Grammar Schools’ Bursars Association (NIVGSBA)	11 March 2009
Department of Education response to evidence from GBA and NIVGSBA	11 March 2009
Northern Ireland Commission for Catholic Education (NICCE)	18 March 2009
Council for Catholic Maintained Schools (CCMS)	18 March 2009
Ulster Teachers’ Union (UTU), Irish National Teachers Organisation (INTO), National Association of Schoolmasters Union of Women Teachers (NASUWT)	25 March 2009
Department of Education response to evidence from UTU, INTO and NASUWT	25 March 2009
Department of Education response to evidence from NICCE and CCMS	25 March 2009
North Eastern Education and Library Board (NEELB), South Eastern Education and Library Board (SEELB), Western Education and Library Board (WELB), Southern Education and Library Board (SELB)	1 April 2009
Department of Education response to evidence from the Education and Library Boards	1 April 2009
Transferor Representatives’ Council (TRC)	22 April 2009
Department of Education response to evidence from TRC	22 April 2009
General Teaching Council for Northern Ireland (GTCNI)	29 April 2009
Northern Ireland Public Service Alliance (NIPSA)	29 April 2009
Department of Education response to evidence from GTCNI and NIPSA	29 April 2009
Northern Ireland Council for Integrated Education (NICIE)	6 May 2009
Comhairle na Gaelscolaíochta (CnaG)	6 May 2009
Department of Education response to evidence from NICIE and CnaG	6 May 2009
Association for Quality Education (AQE)	13 May 2009
Association of Northern Ireland Education and Library Boards (ANIELB)	13 May 2009
Department of Education response to evidence from AQE and ANIELB	13 May 2009
Committee Stocktake on Education Bill	20 May 2009
Departmental briefing on Education Advisory Forum	20 May 2009
Clause by clause consideration of the Education Bill	27 May 2009
Departmental briefing on Area Based Planning Policy	3 June 2009
Clause by clause consideration of the Education Bill	10 June 2009
Clause by clause consideration of the Education Bill	17 June 2009
Clause by clause consideration of the Education Bill	26 June 2009
Clause by clause consideration of the Education Bill	1 July 2009
Clause by clause consideration of the Education Bill and draft Committee Report	9 September 2009
Clause by clause consideration of the Education Bill and draft Committee Report	10 September 2009
Clause by clause consideration of the Education Bill and draft Committee Report	16 September 2009
Clause by clause consideration of the Education Bill and draft Committee Report	23 September 2009
Consideration of the Education Bill and final draft Committee Report	30 September 2009

10 December 2008

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen

Witnesses:

Mr Jeff Brown
Mr John McGrath
Mr Chris Stewart

Department of Education

1. The Chairperson (Mr Storey): I welcome John McGrath, Chris Stewart and Jeff Brown. Gentlemen, I am glad to see you again; no doubt, you will be here regularly in 2009. I ask John to make a few opening remarks.

2. Mr John McGrath (Department of Education): Chairperson, I am glad that you want to extend the time that we will spend with you.

3. The Chairperson: Yes; we value your company.

4. Mr McGrath: We are heartened to hear it.

5. The Chairperson: I am sure that you are.

6. Mr McGrath: We look forward to that. We will have much to learn from bringing this first major Education Bill through the Committee. It will be useful because we will be able to share our experience with colleagues who are involved in drafting future legislation. Therefore, when I said that we look forward to working more closely with the Committee, I did not say it lightly. We have provided the Committee with a briefing paper and a timetable of events. If the Committee thinks that it will help, Chris can speak about the briefing paper for a few minutes.

7. The Chairperson: That will be useful. I wanted to hold this meeting so that members can inform themselves of the process so that relevant questions and concerns can be raised now. That way, when the Committee reconvenes after Christmas recess, it can get to down to hard work.

8. Mr Chris Stewart (Department of Education): Thank you, Chairperson; and good morning, members. This paper follows on from the stocktake paper that we provided to the Committee a couple of weeks ago. It focuses on the two-Bill nature of the Department’s legislative programme, its timetabling and arrangements. We take members’ concerns about the two-Bill process seriously, as does the Executive.

9. That is reflected in the Executive’s decision that the Department of Education take forward the entire programme; cherry-picking is not an option. We will do that by means of two Bills in a way and to a timescale that addresses the Committee’s and other stakeholders’ need for clarity about the whole programme. The timescale and implementation arrangements outlined in our paper are intended to do that and to ensure that the two Bills remain synchronized.

10. The timescale is a significant challenge for us; a year of very hard work lies before us to meet it. However, our aim is that the First Stage of the second Bill should be given in the Assembly as the first Bill is being given its Final Stage. If possible, both Bills will become law at the same time in January 2010.

11. The fallback position is that the second Bill should come into operation no more than three months after the first. However, in either case, it is extremely important that the Committee be clear on the content and purpose of the second Bill before the first Bill has passed the point of no return.

12. We recognise that to achieve that and to earn the Committee’s confidence we must have an open and transparent process and that we must work closely with the Committee in developing the policy and the legislation of the second Bill so that there are no surprises. That is what we intend to do. We look forward to working closely with the Committee on the first Bill in the months ahead and on the development of the second.

13. We recognise that, despite what I have just said, many members will continue to have concerns about the two-Bill approach and would have preferred that the Department had presented a single Bill. However, as I have attempted to illustrate in our written submission, a single-Bill approach would cause another significant delay to the review of public administration (RPA) reforms in education. Worse, it would have prolonged uncertainty for staff throughout the education system; it would have reduced morale, which has been low until recently; hastened the recent exodus of mobile staff; and threatened the continuity in delivery of services in the coming year.

14. Monday’s debate and decision in the Assembly on the Education Bill’s Second Stage has already changed the outlook significantly. It has ended uncertainty and has reassured people throughout the education sector who, until recently, continued to doubt whether the RPA would ever happen. However, as the Chairperson correctly emphasised, it has also brought home to the Department the fact that it has a great deal of work to do. Committee and other Members raised significant concerns at Second Stage, and the Department recognises that it must work hard to address them. We look forward to working with the Committee in the months ahead with a view to doing just that.

15. The Chairperson: Paragraph 3 of your written submission on the legislation timetable says:

“This was reflected in the Executive’s decision that the programme in its entirety should be taken forward."

16. Am I right in drawing a distinction between the programme — that is the establishment of an education and skills authority (ESA) — and the details of the regulations? It is not saying that the Committee will not be able to make changes to the Bill during its scrutiny.

17. Mr McGrath: That is correct. Changes are subject to the will of the Assembly and the Committee. The paper simply says that the integrity of the programme must be preserved rather than, for example, deciding to stop halfway through.

18. The Chairperson: Paragraph 4 gives details of the intended timescale. You will have heard the Committee say earlier that it will seek an extension to the Consideration Stage. That extension is not to allow us to drag our feet but to ensure that we have appropriate time to consider the Bill. An exchange between the Committee and the Department on amendments, which would have to go to the legislative draftsman, would take time. There is an intended timescale, and we will endeavour to make it work.

19. I want the Committee to be clear that it has the power to scrutinise the Bill, express its concerns about it and suggest changes that will mould the authority into what it should be.

20. Mr McGrath: We fully recognise that. The outcome is subject to the decisions of the Committee and, ultimately, the Assembly. Members will recognise that we are becoming increasingly concerned about the state of play in the boards, for instance. I need not go into that; Members will know what I mean. Everyone agrees that it is critical that we get to the end point as quickly as possibly.

21. Mr McCausland: Mr McGrath said that everyone wants to get to the end point as quickly as possible. However, that will depend on the Committee’s receiving clear information from the Department on contentious issues such as the controlled sector and input into the sub-regional structures as soon as possible. The quicker you provide us with information on those, the quicker the process will be; the longer it takes to provide that information, the slower the process will be.

22. Mr McGrath: Those are fair points. Some areas might be regarded as contentious or unclear, and the Department must quickly paint a clearer picture of them. That is one of the matters that we are considering. Now that the timetable has been set, we are addressing parallel work strands that need to be accelerated; we also need to paint a picture of how we see the ESA operating. I accept your comments, Mr McCausland: it is our responsibility to fill those gaps.

23. Mr B McCrea: You will be aware from the discussions on the Bill’s Second Stage that the Ulster Unionist Party is suspicious of the ESA, and we think that we reflect a widespread concern throughout the education establishment. Although we understand that there are benefits in centralising certain functions — and we would like to see those pursued — we are worried that a £50 million invest-to-save fund is being made available to realise a potential £20 million per annum at a time when life is tough. From the information that we received from the chief executive designate, it seems that the savings are coming from a narrow band, and we are not sure that those savings can be trapped.

24. We are concerned about democratic accountability. If the Bill becomes a vehicle for the Minister of Education to bypass the Assembly, we will resist it line by line; I do not know whether I can make it any clearer. We are not happy with how the Minister of Education has engaged with the Committee, the Assembly or the people whom we represent. Our biggest concern is that everything else will become superfluous. Therefore you will need to help us in the process if you want our support.

25. We support the desire to devolve responsibility and resources to schools, but we must ensure that it is more than mere words. We hear all the nice stuff, but there is an old saying in the Civil Service that “he who drafts wins". It is imperative that in the drafting of the Bill the power and resources go to the authority because the voluntary principles that allow the schools the freedom for action — with appropriate resources and good leadership — are fundamental to good schools. That is what we want to see from the Bill.

26. Without that, it will simply be another layer of bureaucracy.

27. Mr McGrath: The Minister’s recent statements outlined that the Bill is designed to deliver a proposition that differs from the original ESA, which aimed at making savings and centralising functions and which might have been regarded as a sort of regional monolith.

28. Caitríona Ruane’s new proposition aims to maintain high standards at the top end and to raise standards elsewhere in order to reduce the gap between them. Furthermore, it will enable the ESA to help and support schools and, as we told the Committee previously, will leave schools in a commissioning model with the ESA and allow them the freedom to deliver the outcomes. Schools will be accountable to the boards of governors and local communities, to the Education and Training Inspectorate, the ESA and, ultimately, the Committee and the Assembly, which will assess the use of taxpayers’ money.

29. More work needs to be done to flesh out the important issues of local accountability and delivery; indeed, we discussed some examples of supporting schools with Ken Robinson at the last meeting. Although the ESA will be a single authority, that will not dilute accountability to the Minister, the Assembly and the Committee. The Northern Ireland Housing Executive and Invest NI are single authorities; a single model is only ineffective if it is unaccountable.

30. We accept those points, and we need to provide more detail about how the new body will operate, some of which will extend beyond dry words and drafting. It is not necessarily a case of he who drafts wins but of he who creates the first draft having more influence than whoever creates the final draft.

31. Mr B McCrea: That is where I have gone wrong.

32. Miss McIlveen: I am unsure how to follow the Ulster Unionists’ party-political broadcast.

33. Mr B McCrea: You should listen and learn.

34. The Chairperson: It is different from the party’s manifesto.

35. Miss McIlveen: Although we want John and Chris to brief the Committee as often as possible, has the Minister indicated that she will, if required, attend the Committee to provide clarification?

36. Mr McGrath: I am sure that the Minister would give that appropriate consideration.

37. Mr B McCrea: We do not want party-political broadcasts.

38. Mr K Robinson: I am sorry that I had to nip out; I thought that we were going to discuss the Bill, and I did not want to go through a brand new copy again.

39. John and his colleagues must realise the historic background — there is not much trust between most Committee members and the various forms of the Department of Education. The legislation was a twinkle in the eye of a direct rule Minister or a direct rule regime. Over the years, those Ministers patted us on the head, gave us tea and a bun and sent on our way; that was “consultation". The Committee is not prepared to endure that again.

40. We have some grave reservations, particularly about the role of controlled schools, which, we always felt, have received the short end of the stick; they are not even getting a stick this time. Moreover, we are concerned about delivery. You said that the ESA will not be a monolith, and you used the Housing Executive as an example. I am dealing with the retrenchment of that body, which is vacating its offices. Regional education offices could gradually be centralised.

41. You talked about unease in the education and library boards. That unease is due to the job uncertainty that affects all grades. We sometimes forget that the lower- ranked people make the daily bread-and-butter decisions on which schools rely. Are those people in the loop? A newspaper headline last night mentioned the loss of 460 jobs in the education sector. There is a scare story doing the rounds before we have even begun our scrutiny of the Bill.

42. Mr McGrath: The jobs that will go are in senior and middle management.

43. Mr K Robinson: What about the people who have kept the system going? They will become uneasy too.

44. Mr McGrath: I agree entirely. The continued uncertainty has not been helpful to anybody, particularly staff.

45. Mr K Robinson: How did we get into such uncertainty? The Committee did not cause it.

46. Mr McGrath: Political uncertainty.

47. Mr K Robinson: There was a rush to bulldoze the legislation through before anybody understood its implications.

48. Mr McGrath: The ESA and the date of 1 April 2009 were included in the Programme for Government, for which there was political support; however, difficulties arose that created uncertainty. The problem was that it created uncertainty about whether, rather than when, the RPA changes that emerged in the Assembly were to take effect. That has caused difficulties. Some people were briefing against the very notion of the ESA until recently. However, the mood music has changed significantly in the past week or two; particularly since Second Stage when people realised that, subject to the will of the Assembly, there would be an education and skills authority.

49. There are issues about boards’ capacity to continue to provide a service to schools in the meantime. There are worries across the piece; no doubt the Committee has heard that from school principals. The status quo does not hold. The model that we offer is a single but decentralised organisation, the main focus of which is to help and support schools. It will centralise the back-office functions because that is where efficiencies can be made; and the outline business case makes it clear that the 460 jobs are in senior/middle management. I do not think that anyone would have difficulties in shrinking such posts.

50. Mr K Robinson: How do replace that loss of expertise? Will those people be put out of a job only to come back again next week as consultants at a higher salary?

51. Mr McGrath: If we centralise functions, we will be able to run the same single-functioning finance, human-resources and transport services without those posts. However, it is almost certain that there will be no compulsory redundancies. We will reduce posts, shrink the organisation and decentralise the back-office functions as a starter.

52. There is scope to make further savings as we centralise functions such as transport and operate them on a single regional basis; those savings will be made simply through efficiencies. The education transport budget is about half that of Translink — it is a big operation. I cannot believe that in moving from five organisations to one and introducing better logistical management, savings cannot be made that could go back into the schoolroom.

53. Mr K Robinson: Will it be more efficient?

54. Mr McGrath: It should be. I am talking about delivering a proper service more efficiently; I am not talking about simple cuts.

55. Mr Stewart: We cannot afford to lose expertise that is required for service continuity. However, such a risk already exists and has been exacerbated by the uncertainty that has pervaded the system until now. Vital mobile staff left educational organisations because they were not sure what the future of the RPA in education was. We hope that that pattern will now stop.

56. Mr K Robinson: Whose fault is this?

57. Mr Stewart: It is not a function of civil servants to apportion blame. Nevertheless, uncertainty has damaged staff morale and has impaired organisations’ ability to deliver the services for which they are responsible. It is incumbent on the Department to move matters forward as quickly as we can, recognising, as has been said, the role of the Assembly and the Committee, and to be satisfied that we have the right model and the right legislation.

58. Mr K Robinson: Some of us were on the Committee for Culture, Arts and Leisure when it scrutinised the Libraries Bill. We saw the difficulties ahead, so we dug our heels in, and, after a long struggle, eventually other people recognised that we were not being obstructive; we merely wanted to ensure that the Bill would be more efficient.

59. I am glad that the Minister has at least recognised democratic accountability, although I know that Trevor has reservations about that. There must be democratic accountability of the kind that has been built into the Libraries Bill. Ensuring accountability is one the functions of a Committee.

60. However, the Committee feels that this Bill is being steamrollered through. This Bill will effect such a massive change in the education system that we cannot afford to miss anything in it.

61. Mr Stewart: We do not want to give the Committee the impression that the Department will attempt to steamroller it.

62. The Bill is not immutable. The Department would not be surprised if significant amendments were proposed by the Committee and other MLAs; neither would we be surprised by a request for a significant extension to Committee Stage. Indeed, we bore that in mind when considering the timetable.

63. The Bill is the most important piece of education legislation in a generation. Therefore it is important that we get it right and that the Bill commands the broadest possible consensus.

64. The Minister has made it clear to John and me that she expects us to work closely with the Committee in addressing its concerns; there will be no attempt at steamrolling or at paying lip-service to the Committee.

65. Mr McCausland: In answer to Michelle’s question, John said that the Minister would give consideration to requests to appear before the Committee. The nature of that consideration is one of the factors that will influence how people view the Minister’s role and whether she is acting in good faith. Delighted though we are to see John, we are reminded constantly by the Minister that she is the Minister; therefore it would be appropriate for her to speak to the Committee. Not that we do not want to see you, John —

66. Mr McGrath: It is not my job to commit the Minister —

67. Mr McCausland: Yes, but will you convey that point to her?

68. Mr McGrath: I will convey your sentiments and the wish of the Committee that the Minister should appear before it on occasion to help explain the objectives of the Bill.

69. Mr K Robinson: In which context do you intend or not intend to commit the Minister?

70. Mr McGrath: I never commit Ministers unless I fully know their minds.

71. The Chairperson: You say that there is no intention to steamroller the Committee. This Committee will not allow itself to get into the same position as the Committee for Culture, Arts and Leisure with the proposed libraries authority. The Committee has raised several issues concerning the Bill, and we all believe that changes and amendments must be made.

72. Point 4 of your briefing paper states that:

“The first Bill will be introduced to the Assembly as soon as possible, with the aim that it would be on the statute books before the 2009 summer recess."

73. Why must it be on the statute book by the summer of 2009 if we have commencement orders for 2010? The Committee will seek an extension of Committee Stage; therefore it could be on the statute books by the end of 2009, but it does not have to be on the statute books by the summer recess.

74. Mr Stewart: You are absolutely right. The timetable in the briefing paper was a compromise that was agreed by the Executive. That compromise balanced the desire of the Minister and the Department to establish and maintain momentum and demonstrate clearly to the education system that we are making progress with the concerns expressed by the Executive and the Committee on the need for clarity on the entire programme before there was an irrevocable commitment to any of it. That is why the briefing paper is carefully worded and why we have recorded that date as an “aim".

75. If the Committee decides to extend Committee Stage significantly — and this is a significant and complex Bill — the Bill may not be enacted by the summer recess. We recognise that possibility, and it is a matter for the Committee to decide how long the Committee Stage will take.

76. The Chairperson: Thank you.

77. Mr Lunn: If the Bill had been presented a year ago, the Committee might have tried to extend its deliberations in order to stymie it. However, as John said, the mood music has changed and the Committee will examine the Bill in a constructive manner. We may need some extra time, but that extra time will be taken with a view to getting it right.

78. Ken Robinson is right that even the Alliance Party has reservations about aspects of the Bill. However, there has been a sea change and the Committee wants to see the Bill progressed. Some members still need to be converted, but as the months go on we will see how things progress.

79. I am looking forward to the next few months; it is nice to have substantive legislation to get our teeth into at last.

80. Mr Stewart: I assure the Committee that when the Second Stage of the Bill was passed on Monday, no one in the Department interpreted that as ticking a box. The first thing that I said to my team afterwards was that the work starts now. The Department has considerable work to do.

81. The Chairperson: John, Jeff and Chris, thank you very much for appearing before the Committee today.

14 January 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Ken Robinson

Witnesses:

Mr John McGrath
Mr Chris Stewart
Mr Joe Reynolds

Department of Education

82. The Chairperson (Mr Storey): The two issues that we want to discuss today are the regional and sub-regional structure of the education and skills authority (ESA) first, and the sectoral representation organisations. I welcome John McGrath, Chris Stewart and Joe Reynolds. Joe, you are very welcome, and it is nice to see you here. I will now ask John to proceed.

83. Mr John McGrath (Department of Education): I am very glad to be here this morning for the continuing process of the RPA Bill. I have my trusty support Chris, and also Joe, who has joined the RPA team in the Department, and who will be a constant feature at these meetings. We have provided two papers to the Committee: the first on the regional and sub-regional structure of ESA, and the second on the role and responsibility of sectoral organisations. I will speak about the first paper and deal with any questions that Committee members may have, and then Chris will discuss the second paper

84. A considerable amount of work has gone in to producing both papers, by the Department, and by the education and skills authority implementation team (ESAIT), but they do not yet represent signed-off proposals, particularly with regard to structure. The Department will shortly feed back some views to ESAIT on how its existing thinking matches the criteria set out by the Department. After that process, it is envisaged that ESAIT will begin a consultation process, involving particularly the trade union side and other stakeholders. After that, the proposals will formally come to the Department for the Minister to sign off. We would, obviously, like to accelerate that process in the next couple of months, because we are working to a tight deadline to get senior posts out to the market and filled in adequate time for ESA to be up and running by the target date of 1 January 2010.

85. As was set out by Catríona Ruane in several speeches in the Assembly recently, ESA has a number of clear, overriding objectives: to raise standards overall, and reduce the gap between the highest and lowest achievers, and in so doing reduce the barriers faced by many in accessing education and fulfilling potential; to provide a clear and consistent model of delivery focused on equality, which is child-focused and also reflects modern professional practice; to provide locally-based and accessible frontline services to help, support and, as necessary, to challenge schools and other education providers — education providers is meant in the widest sense, encompassing everything that is in the education basket, from early years to youth; and to provide efficient and effective support services, and free up resources to be redeployed to the frontline.

86. ESA, led by its chairperson and members, will be accountable for its performance to the Department, the Minister and the Assembly, and, in so doing, will be, in a broader sense, open to scrutiny by this Committee. The accountability framework for ESA will be clear, transparent and rigorous, and will also reflect the guidance and good practice and the oversight of arm’s-length bodies, which are emerging from the Department of Finance and Personnel and from previous work of the Public Accounts Committee.

87. The two main drivers in designing the structure are to provide locally, as much as possible, the services that schools and other providers need, and, parallel to that, to centralise and derive economies of scale from regional back-up services that need not be provided locally. Schools will be the focus of the system: they will be at the centre of the system, rather than being one element in a wider command-and-control system.

88. The paper that the Department has provided, therefore, outlines the current development of thought with regard to the regional disposition of central functions — that is, finance and human resources — and how they will be brigaded; and, linked to that, the current thinking with regard to a network of local area offices and the frontline services that they would provide to schools and other education providers. It is envisaged that those local offices, led by senior managers, should have the flexibility to respond to specific local circumstances in line with the central policy framework. They will aim to be sensitive to, and receive input from, local committees, comprising, among others, a number of elected representatives. The Bill under consideration already contains provisions for the establishment of such committees.

89. As members will know, the Department set out a range of criteria against which proposals for the structure of ESA should be shaped and, eventually, judged. There has been considerable rigour in the thinking to date. The outline business case, which has been signed off in the system and has now been made available by the Minister, demonstrates the robustness of the case for the creation of ESA and the reduction of a significant number of middle-management and senior posts, which will lead to savings of some £20 million per annum by the third year of implementation.

90. The intention for the number of senior posts — those that attract salaries in excess of £55,000 per annum — is that they will reduce from 80-odd to fewer than 50. That alone will generate savings of £2 million per annum. As regards the Department’s response to thinking on ESA’s structure, it is currently considering the cost parameters that it will set for ESA and is finalising the structure with regard to senior management posts.

91. I emphasise that although those proposals are well developed and have been tested against criteria that have been set by the Department, they have not yet been formally signed off. Therefore, there is still scope for the Department to offer views to ESAIT and for those to be reflected before final decisions are made. In that context, the comments and views of the Committee will be a welcome ingredient. I look forward to discussion on that paper.

92. The Chairperson: I remind members that the proceedings will be reported by Hansard. Therefore, it is important that you raise any concerns that you have, because they will be recorded.

93. Mr McGrath, what references are there in the Bill or in its schedules to ESA’s structure and sub-regional structure? How is that dealt with in the Bill? In addition, what staffing structure is envisaged below senior-official level for each of the six local teams? One of many concerns is that paragraph 12 of the briefing paper on the structure of ESA at regional and local levels begins with the words:

“Overall, the numbers of senior posts (equivalent to the Senior Civil Service)".

94. Are those posts equivalent to current Senior Civil Service posts in the Department of Education, or is that a generic term?

95. Mr McGrath: Those posts are benchmarked against the salary level at which the Senior Civil Service starts.

96. The Chairperson: Therefore, the number of posts will be reduced from 80 under the current arrangements to fewer than 50. I am not being a cynic, nor, in any way, suggesting that that will never happen. However, if the threshold is under 50, do we run the risk that, over a period of time, we end up in a situation in which there will be requests for more staff and resources? Five years after ESA has been established, more people will be employed than there are at present in the five education and library boards. People will ask what all that was about: you went through all of that only to have more senior-level staff and the savings that were envisaged were not realised.

97. Mr McGrath: I will deal with those questions in reverse order. A solid piece of work in the outline business case demonstrates that about 460 posts can be removed while still delivering the same functions by rationalising and centralising them.

98. The Chairperson: Are those 460 posts separate from the 80 senior posts?

99. Mr McGrath: Those 80 posts are a subset of that. You could remove 460-odd posts and deliver the same functions with that reduced number of posts. When that is fully implemented, £20 million per annum could be saved. At the senior-management core, 80-odd posts will be reduced to fewer than 50.

100. As I mentioned, the Department is considering the parameters that it will set for ESA’s senior-management costs. We must get that right at the outset so that ESA can do its job. We recognise that the public-expenditure structure and future budgets are almost certain to bring about continued expectations for efficiency savings from public bodies. Education will not be immune from that, although whether we believe that that is a good idea is a different matter. As the second biggest chunk of the block, it would have to be a contributor, and whether generating 3% or 3·5% per annum in the future one would expect to bear down on management costs. Therefore, we expect the drift to tighten up over time as ESA beds down more efficiently, not to increase.

101. The trick is to get the change process — that is, from the five education and library boards and the other organisations — right at the outset and managing that process over three or four years by putting in drivers that will, essentially, squeeze management costs. That is why it is important to get a figure at the start of the process — and it may be an envelope figure — whereby we say that senior management costs should not exceed X amount, and then — and I am speculating — to say that, in two years’ time, we expect that figure to be reduced by Y per cent.

102. Therefore, the driver will be intended to push down costs, and that is quite appropriate because the public will expect that, as much as possible, management costs should be what is needed but no more than that, with the maximum amount of resource going to the front line. If that answer is satisfactory, I will let Chris deal with the specific provisions in the Bill.

103. Mr Chris Stewart (Department of Education): Chairperson, you asked about how the legislation deals with the sub-regional structure of ESA as described by John McGrath. The legislation does not specify the model that John outlined but it allows for that model, or a variation of it, to be introduced if that is what is ultimately decided. The relevant provisions are in paragraphs 7 and 8 of schedule 1 to the Bill, which allow for the establishment of committees of the ESA and for any statutory function of the ESA to be delegated to those committees or to ESA employees.

104. That means that if the sort of model that John outlined is signed-off and decided as the right way forward, the legislation allows for that to be implemented from the outset. The flexibility of the approach in the legislation is also an advantage. If that model needs to evolve if we do not get it right first time, the legislation is sufficiently flexible to allow the changes to be made quickly, whereas, under the current arrangements, structures are prescribed in primary legislation and the only way to make a change is through more primary legislation.

105. Therefore, the Department feels that the approach in the legislation will allow for the introduction of a model that meets all the principles and parameters that John outlined, or a variation on that, and for that model to evolve if necessary.

106. The Chairperson: The problem is that we could end up in the same situation as with pupil profiling — that is a different issue, but the same principles apply. In that instance, the issue was debated and, months ago, organisations went to CCEA and said that it was not working but the pilot was continued. Then, in September, the Department of Education issued the revised curriculum to all schools and although pupil profiling was mentioned in that, a number of weeks later an announcement was made stating that that was a bad idea and will be scrapped. Are you going to let the matter run, talking about it until March and then with reports having to be done by June? It is a mess. My concern is that, by having a provision whereby the model can be changed, we may allow a similar situation to develop. Is that really the best way to present policy?

107. Mr McGrath: A lot of work is going into getting ESA structures right, getting the key balance between local sensitivity and support, and centralising those functions that can be centralised and making them sweat to get savings out of them. My own view is that there are no magic answer regarding perfect structure for any organisation, and circumstances will change. I would like to think, therefore, that the issue is not about getting the model wrong. It is more the case that if, over time, there are changes with regard to strategic priorities, or if, for example, there are serious issues about public expenditure and the Department and the Minister are required to take out significant efficiency savings and one way to do that is to tighten up the management structure, the approach that the Department is adopting provides the flexibility to do that.

108. Almost certainly, once ESA beds down over three or four years, and moves from having been the amalgam from day one, particularly of the five education boards and the smaller organisations, and develops its own culture, any organisation will say that, once it gets over that initial stage and gains a degree of maturity, it may well want to consider and establish whether it has the correct balance that is appropriate for it to move ahead.

109. The issue is not about getting things wrong; it is about having the scope to fine tune and refine the job that has to be done and the wider policy planning and public expenditure constraints. Therefore, it is not setting in concrete something that could be unpicked only by introducing primary legislation. I believe that that is consistent with the approach that is taken by organisations such as the Housing Executive and, perhaps, Invest NI, which are not subject in primary legislation to any degree of specificity about their detailed organisational structure.

110. The Chairperson: Following on from that, the Bill says that the substructure could include committees. A decision could be made not to have any subcommittees, because the Bill says only that “ESA may establish committees". It may not agree to establish committees.

111. Mr Stewart: The Department will not give ESA that freedom. The Minister made it clear in the policy memorandum, which was agreed by the Executive, that committees will be established. The Department has, therefore, made a decision that there will be committees, and ESA will not be given that freedom.

112. The Chairperson: If that is the case, why is that not reflected in the Bill? Why does schedule 7 to the Bill use the word “may" when you say that the Minister has made a policy direction, and the policy memorandum uses the word “shall"?

113. Mr McGrath: It is the same issue. In five years from now, the Minister of the day from whatever party may decide that this model is not a good one. In those circumstances, legislation that stated that ESA “must" establish committees would allow no discretion. The word “may" is permissive, and that approach tends to be taken to legislation in general. If someone were to say in a couple of years’ time that those committees are not a good idea or that you want them to evolve with community planning, the Department would have to say that it was stuck with them because Bill had makes that arrangement compulsory. That would not be helpful.

114. The Minister’s policy direction to ESA, reflecting what is in the policy memorandum that went to the Executive, is that there shall be committees. The Minister will tell ESA that she wants it to establish local committees in line with the local area structure, and to get on with that, please.

115. Mr Stewart: There is nothing Machiavellian in the wording. It is normal legislative practice for such measures to be permissive rather than prescriptive. It is also worth emphasising that the Department does not see those committees as window dressing. The important distinction is that they will not be external scrutiny committees; they will be formally part of ESA, and they will be able to carry out functions on behalf of the organisation. They are not, in any sense, external; they are intrinsic to the structure.

116. The Chairperson: I want to give Members the opportunity to ask questions, because time has been set aside to deal with those two items.

117. Mr D Bradley: When the Committee had its initial discussions with officials from the Department about ESA, the selling point was the savings that would be made and that those savings would be redirected back into front line services. The emphasis then shifted to the raising of standards, which now seems to be the Department’s key selling point for ESA, and the point that savings would be made is now in second place, as it were.

118. In your introduction, John, you said that staff who operate in local teams would be guided, supported and, where necessary, challenged by senior management in their efforts to achieve the key priority of driving up standards of educational achievement, with particular regard to closing the attainment gap. Yet, the Committee has a letter form the leader of the CCMS primary principals’ group in the Derry City Council area, who already wrote to the Department on 21 May 2008 to ask questions in relation to the raising of standards. The letter states:

“I have been requested by our group to seek specific clarification on the points raised in our initial correspondence that we do not believe were addressed by your response. Accordingly, given the generic change in educational administration that will arrive with the advent of ESA, we feel it is imperative that frontline leaders are absolutely clear in terms of the following:

Is there any empirical evidence to suggest that the development of such a large unitary authority will improve the educational outcomes of our young people?"

119. With regard to the Minister, the letter continues:

“In your initial response you merely stated what the current educational outcomes are and the perceived economic benefits of a huge authority."

120. It is very important that education leaders in the front line at the chalk face have confidence in the ability of ESA to improve standards. That group of education leaders in Derry city from whom the letter came are not convinced that that will happen. They are asking whether there is any empirical evidence to suggest that the lofty ideals that the Department has for ESA with regard to raising standards will be realised.

121. Mr McGrath: That demonstrates the problem: that there is an issue about standards at present.

122. Mr D Bradley: Everyone knows that.

123. Mr McGrath: Those school principals and the children are not being served well by the current system. There is an increasing understanding of that, particularly in view of the profile that Caitríona Ruane has given the issue in recent months. There are significant issues about standards and the PAC reports on literacy and numeracy. One of the main problems at present, put bluntly, is that at least five systems — if not more — are doing things in different ways. That was highlighted in the PAC report on literacy and numeracy.

124. In some cases there are a plethora of organisations. If one organisation is using best practice, one would expect every other organisation to adopt that. However, we have a system in which people make a virtue of doing their own thing. That does not serve children well, and it does not ensure that equity or equality is provided across the Six Counties.

125. Under Caitríona Ruane, the language surrounding ESA has refined to make raising standards and reducing the gap the primary objective. Achieving savings is still an objective, but it is clear where the savings have to go: to the front line in order to improve standards.

126. As was the case previously, and as is still the case today, schools remain the focus of the new system. Schools are not somewhere down the chain of command; they are at the absolute centre, and they are to be helped and supported, and that will be the function of the local ESA structure. They will have more of a commissioning role in what services and support — particularly with regard to professional development — that they need and want. Given that facilitation and empowerment, the wider community — and the Department and ESA, on behalf of the wider community — will expect the schools to perform better with regard to delivering standards.

127. The issue is about not only organisational change, it is about the empowerment of schools. In parallel with that, however, it is finding a more rigorous system of monitoring and performance management, which is articulated through ‘Every school a good school: a strategy for raising achievement in literacy and numeracy’, which is moving to final fruition, and the school improvement policy. It is that entire package. The organisation — and that policy direction and the focus on putting pupils first and schools next — is the package which, we believe, will do far more to improve standards than anything than has happened to date.

128. There is no automatic empirical evidence that one single organisation will bring about improvements; that is not the issue. The issue is that the current system is, arguably, not serving children well. There has been disparity and an unsustainable patchwork of approaches, and they have not served children well. Surely, we need to do better by establishing a single, but decentralised, organisation. We have the opportunity to sweat out the amount of savings, which the outline business case demonstrates, without reducing service. A saving of £20 million, without reducing services, is a good start: it is not the end, it is the start. Against that context, the propagated model deserves the opportunity to demonstrate that it can improve on the past.

129. Chris may wish to say something about the specific correspondence from which Dominic Bradley quoted.

130. Mr Stewart: I am sure that you are familiar with that correspondence, we are —

131. Mr K Robinson: I apologise for interrupting, Chris, but my comment may actually tie in with what he is going to say. What reward is there for schools that improve their attainment?

132. The Chairperson: Currently?

133. Mr K Robinson: No, built into this process. If this process is going to raise standards, and the whole focus has moved to money, what reward is there for a school or schools to do that?

134. Mr McGrath: I may be naïve, but I would have thought that any school would want to raise and maximise the standards of outcomes of the pupils in its charge.

135. Mr K Robinson: Yes, but they would want recognition for doing so. How will the Department do that?

136. Mr McGrath: How are we going to recognise that?

137. Mr K Robinson: How is the Department going to recognise a school which really sweats itself out, to use your term, and raises standards? We are all in this game to raise standards. If a school really puts itself through a hoop, and the teachers, the principal, the governors, everyone pulls together and the school is assessed as having raised their standards, what reward is in it for them? What carrot? There are lots of sticks, but no carrots.

138. Mr McGrath: I think that there needs to be a balance. I would expect any organisation to take pride in the fact that it is doing a good job —

139. Mr K Robinson: We do take pride —

140. Mr McGrath: In general, I do not mean a school, I mean anyone —

141. Mr K Robinson: We take pride and there’s a satisfaction. However, if we are now moving to this super-duper authority, what recognition is going to be built in to make tangible rewards to schools? Will there be extra staffing or some sort of emoluments that can make people strive to improve?

142. Mr McGrath: First of all, the enrolments of a well-performing schools are likely to increase. On the other hand, if there are schools that are performing poorly, and the Department deals with the school improvement agenda —

143. Mr K Robinson: That is the stick. What is the carrot?

144. Mr McGrath: It is both. Parents and pupils will, increasingly, go to the schools that are deemed to be performing and performing well. If there is a more rigorous approach taken with underperforming schools than there has been in the past, there will be a further issue of capacity. First of all, there is the capacity of high performing schools to grow —

145. Mr K Robinson: John, we are moving to a business model here, and in business those executives who perform well, unfortunately, receive very large salary increases in addition and all sorts of bonuses. Therefore, what is in it for the school? I do not mean the individuals in a school, but the school as a corporate body. What is in it for the school if it improves its standards?

146. Mr O’Dowd: The improved life of its pupils.

147. Mr K Robinson: That is taken as a given, and that comment is a wee bit glib, actually.

148. Mr McGrath: This is speculation, but if we are in the territory of asking whether there are ways in which there can be financial incentives for the school, as an institution, to enable it to reinvest in equipment or employ more teachers, then that may well be something that the Department needs to examine. However, I would hesitate in doing so, and I am sure that Mr Robinson is not suggesting some type of bonus system for schools where money goes —

149. Mr K Robinson: I am sure that the unions would jump on that if I were to suggest it. I am not suggesting that.

150. Mr McGrath: One of the issues that the Department has at present is that it has given more money to poorly performing schools, which had no eventual outcome, because we did not link it —

151. Mr K Robinson: The Department did not reward the successful schools. Here is an opportunity to do that.

152. Mr McGrath: No, the Department actually rewarded underperforming schools.

153. Mr K Robinson: The Department rewarded failure.

154. Mr McGrath: We need to find a way, and I agree —

155. Mr K Robinson: Schools that were successful had their added bonuses taken away for raising school standards.

156. Mr McGrath: I do not have any difficulty with encouraging and incentivising the institution to do well, but in any discussion we have with school principals they say that they want to do their best. In many cases, those principals feel — and I am sure that the Committee hear this — that they are prevented from doing so and are disempowered. In matters of professional development, they are told what they can get rather than given the scope to say what they would like. Empowerment will be a feature of the future, and principals will be able to commission what they want, and will have far more freedom with regard to professional support. There will also be accountability.

157. I agree that schools that perform well should be recognised in the broadest sense of the word, and should be celebrated. Let us face it: well-performing schools — that is, well with regard to the circumstances with which they deal, and not just the pure academic achievement — already take great pride in doing well. The Department, and, I am sure, the Minister, would want to find ways to incentivise, as you put it, in such a way that it enables the school to progress and to do better.

158. Critically, if we are going to improve standards, we must improve teaching. That is the core of it. There are issues around incentivising and creating a better approach to the workforce, including morale and absenteeism, as opposed to investing a lot. As Mr Robinson put it bluntly, there will need to be carrots and sticks. It is not linked to just ESA: if we were not changing the organisational structure, we would still need to do something about standards. ESA’s importance is not seen in just organisational structure.

159. Mr D Bradley: I will go back to my question, which I am asking on behalf of that group of teachers which wrote to the Committee and to the Department. You outlined the difficulty with standards and the long tail of underachievement, about which we have known for some time. You said that it is worth giving the model a chance, but are those sufficient grounds to make such changes? In the letter, the leader of that group of primary school principals asked whether the Department has done any research which offers empirical evidence to support the establishment of such an authority as the best way to raise standards.

160. Mr McGrath: I believe that the issue is more complex than that.

161. Mr D Bradley: When you said that it is worth giving the model a chance, that does not sound extremely complex to me.

162. Mr McGrath: There is enough evidence that standards are not high enough.

163. Mr D Bradley: I did not dispute that.

164. Mr McGrath: The current organisational structure has not helped — and has, perhaps, hindered — achievement or the pursuit of it. We have not made the best use, as PAC reports have demonstrated, of significant funds that were invested in literacy and numeracy in particular. Therefore, the status quo is simply not good enough.

165. The ‘Every school a good school’ policy is soundly based and contains mechanisms and approaches to school improvement that have far more rigour and transparency in how to deliver that. Linked to that is the need to create the organisational structure, the vehicle that will help to support schools and drive improvement.

166. Mr D Bradley: Where is the evidence that that particular model is the most effective vehicle by which to achieve that improvement?

167. Mr Stewart: The evidence is in the GCSE results.

168. The Chairperson: I would like to go back to something that John said, because it is a worry. You referred to numeracy and literacy. The problem was not the education and library boards; the problem was the Department.

169. Mr McCausland: Hear, hear.

170. The Chairperson: I do not think that any of the education and library boards will take any of the blame for the failure of the Department which introduced a numeracy and literacy strategy on which it spent £40 million, and they are now being told that there has been failure and that that failure lies with the boards, when the failure on that occasion lay fairly and squarely with the Department.

171. Mr McGrath: I think that I said the current structure.

172. The Chairperson: The rationale of your comments, however, is that the boards were responsible.

173. Mr McCausland: The point is that the only things that are being changed are the schools and the system. The Department is not changing. It is a classic example of buck passing.

174. Mr Stewart: The Department is changing very substantially.

175. Mr McCausland: Well, maybe not for the better.

176. Mr Stewart: However, the Chairperson is absolutely right on the point that he made about literacy and numeracy. The PAC put the blame squarely on the Department and said that the Department was wrong to allow to continue a system in which there were five different approaches to literacy and numeracy. The PAC rightly criticised us for not having done something about that earlier.

177. If I could return to Dominic Bradley’s point. The Department is familiar with the correspondence that you mentioned, and we are engaging with that group of principals. It is very important that we do so, because, as we emphasised, all school improvement starts and finishes with school principals and school leaders. The Department very much wants to engage with them and take seriously what they have to say. It is, I believe, interesting that that concern comes from a group of CCMS principals, which is, of course, a regional organisation which covers all Catholic maintained schools throughout Northern Ireland. The schools and CCMS as a sector have been very successful in tackling underperformance and raising standards.

178. As John said, the evidence is there, but, sometimes, the question has the wrong emphasis.

179. As John said, we believe that the evidence is there. The size of the ESA is not the issue. We are not making this change because we feel that we have to achieve some kind of critical mass in order to achieve success. The issue is about the number of organisations and the number of approaches.

180. We have seen — and the empirical evidence is in the GCSE results — an unacceptable variation in outcome and an unacceptable inequality in the standards of attainment in different parts of the fragmented education system in Northern Ireland. Good practice is being developed by principals; however, it is not crossing sectoral and organisational boundaries.

181. They are not the only source of good practice; good practice is being developed in all the other sectors, including the controlled sectors, but it is not spreading. It is being trapped in the organisational boundaries of the present system. The PAC rightly criticised the Department for not doing anything about that.

182. Ken asked me to make the link between the two. We need carrots — I will be careful in how I phrase this because it may sound as if the carrot may involve a great deal of work — but where a principal or school leader or group of school leaders have demonstrably achieved success we should publicly recognise and celebrate that success. However — and this is part of the change — the completely different approach that the ESA will take compared to the education and library boards will be to ask what a principal has done or what new approaches have been developed in a school or a group of schools that have worked? Should the ESA be made amenable and responsible to that principal who, along with his local colleagues, may ask for money because they have developed good practice in one school which will spread, rather than the ESA’s simply offering a set of services to schools and telling them that they must take what is on offer? That good practice could spread from one school through the neighbouring area by means of co-operation, sharing of staff, and the sharing of resources.

183. The development of services in schools or groups of schools — and this is captured in the Every School a Good School policy — is based on their self-improvement and self-development rather than simply taking what is offered on a very restricted menu from education and library boards, as they do at present.

184. The two straight-forward carrots are recognition and money for the development of services and expansion of good practice in schools, which, as John said, is driven by the schools in a commissioning role and making the ESA responsive. If the ESA cannot provide the services, and the schools can provide them better, then we shall make sure that the ESA responds appropriately.

185. Mr K Robinson: Thank you very much, Chris; that is quite heartening. A school that came here showed how it had changed things around, and how with added flexibility they could do so much more —

186. Mr Stewart: It could put an arm around the school down the road as well.

187. Mr K Robinson: You said something right at the end of your presentation that interested me. However, it has gone for the moment; I have lost my train of thought.

188. Mr McGrath: May I respond to what Nelson said? Reports have highlighted failures of the Department. Many of those failures, to be blunt, stemmed from the Department’s failing to performance-manage the education system — to give direction and expect people to take account of it. It has allowed a system without the necessary orchestration in which people did their own thing. That is not acceptable in a devolved context where a Department and a Minister are accountable to the Assembly, and in which the Committee would also have a role.

189. The Department is changing; it is about to change its structures radically. However, it must accept that its job is to police the policies and targets that have been endorsed and police them across the system. I referred to the accountability framework for ESA, and it will expect to be held to account by the Assembly and by the Committee that is it doing its job in overseeing and pursuing targets and holding people to account. The Department needs, culturally and structurally, to address its weaknesses, and it is doing so.

190. Miss McIlveen: In relation to the recruitment of the core structure, which you refer to in paragraph 8 of your paper on the structure of the ESA, saying that you aim at finalising the overall proposals by mid-February and at starting recruitment in early spring.

191. Paragraph 6 talks of undertaking a consultation on a proposed structure. It almost looks as if the proposed structure has been pre-empted and that that consultation has already been sorted. Drafting job descriptions for the core structures gives the impression that decisions have already been made, irrespective of the consultation.

192. You refer to the PAC recommendations and the commitment to appoint high-calibre candidates, and we would not expect you to recruit anyone less than high calibre. However, experienced people who would meet the requirements are likely to come from the existing boards. I raised that issue before when I mentioned asset-stripping and our concerns about the transition. I know that you are aiming for an operational date of 1 January 2010, but that may not be realised; there may be slippage. How will we ensure that the boards operate efficiently and that there is no asset-stripping?

193. Mr McGrath: To date, much work has been done to consider structure in ESA and in the Department, and consultation on that will begin shortly with trades unions and other sides. The timetable is very tight, and work is ongoing on various issues on which there is no disagreement: we will need a director of finance, because there is a £2 billion budget; that is almost a given. People can begin to work on the bones of a job description and have it in the tank while the consultation is under way. Indeed, it is important to remember that commitments have already been given to the PAC that high-calibre appointments would be made to the human resources post and director of finance post. Reports on job evaluation and other issues highlighted a lack of expertise in those areas.

194. As regard asset-stripping, the Minister met the chief executives of the boards on Monday morning. ESA will largely be made up of people who have moved across from the education and library boards. The boards will largely be responsible for the delivery of services until 1 January 2010. It is in nobody’s interest for ESA to “asset-strip" boards by moving people thereby leaving gaps in delivery. If people in the board structure are successful in their application for a post in ESA — whether they be second or third level — we will have to adopt a clever management approach to deal with the situation. We must first ensure that they are not removed from their day job any earlier than need be, and we must work out a sophisticated system in the autumn when staff move posts.

195. We must be very careful, because this transition is not about asset-stripping. The first step is to identify who will hold the posts in the future. The second is to figure out how to, in a sense, migrate from managing the current situation to managing future changes. However, we know that we must not suddenly pluck successful applicants out of the system on a given date, thereby leaving the boards beleaguered in the last months of transition. That is by no means our intention; such a move would not help ESA or us.

196. Business continuity, which has been flagged up, will be critical over the next 10 months. We have already said that there must be a careful balance between managing existing services and supporting schools and getting ready for ESA. We must ensure that the second does not prejudice the first. It will not be a matter of asset-stripping, Michelle. It will be about allowing people to apply for the posts — and, of course, people are free to apply — getting some certainty about who will do certain jobs and then working out how they migrate over and when.

197. Miss McIlveen: At the same time, you do not want anyone to feel that they cannot apply for those posts.

198. Mr McGrath: The matter will have to be very carefully managed, for the reasons that you have outlined. The earlier we know who will fill the posts in ESA, the better — even if those people are not actually in post. That is important.

199. Miss McIlveen: There is mention of business changes, and you talked about the seven main functions and a process that would last three to five years. Do you foresee a post being established so that someone can oversee that change?

200. Mr McGrath: Gavin Boyd is making a strong case, based on empirical evidence, that it is a significant challenge for any organisation to weld more than five organisations together, create new structures, build in the identity of the new organisation and then set strategic targets so that everyone is moving in the same direction.

201. Books have been written about managing change. In the early years, there must be someone whose job is to oversee that process of change in the organisation and to get systems built in and bedded down. There may a post that reports to the chief executive for the first three or four years of ESA, but when systems have sufficiently bedded down, that post would not be needed. Change does not end on 1 January next year: it starts then. We will have to look at how far the transformation from the boards and the organisations into a single cohesive body has progressed. That is an issue that the Committee will want to be reassured on.

202. It would be a time-limited post that will not, however, be a part of the permanent structure.

203. The Chairperson: Paragraph 17 states:

“The Department’s initial thinking is that a configuration of six units (one covering the greater Belfast area and five others)".

204. In his presentation Gavin Boyd said that ESA had envisaged 11 units.

205. Mr McGrath: I do not wish to talk behind anyone’s back. However, at that time ESA might have thought that such a structure should be compatible with 11 local authority areas.

206. The Chairperson: Gavin showed us a diagram setting that out.

207. Mr McGrath: If Gavin were here, I imagine that he would say that that is one option. The Department’s view is that we need to strike a balance between having a local structure that is sensitive and coterminous with local government and also cost effective. We envisaged that each would be headed by a senior manager, as they will be doing an important job.

208. However, we need to strike a balance between a decentralised structure with 11 offices —which would complicate the reporting relationships in ESA — and cater for local sensitivities. Therefore a six-unit model, five of which would dual two of the new district councils and one of which would be in Belfast, is preferable. Which council areas would be paired is an issue for further discussion. Many of the deep-seated issues of school improvement and performance concern Belfast, and we need a focus on that. That is not to say that there are not significant issues about performance elsewhere. The six-unit model strikes the right balance between local sensitivities and keeping management costs sensible without over-complicating the structure of the organisation. That is within the parameters that the Department has given ESA and will limit senior management costs in future.

209. The Chairperson: Where is the thinking on children’s services? Three options were given originally. How many posts will be needed to deliver children’s services?

210. Mr McGrath: There should be a second-level post in charge of children’s services, which will be one of the primary posts in the system relating to quality and standard of service. We have not yet considered the structure below that post, but children’s services will fit into the role of the local offices. ESA is setting up two groups to advise it: one on education quality and another on children’s services.

211. Mr Stewart: Members will know the background and the concept of children’s services. It originated in England in response to several serious cases of child abuse, including the Victoria Climbié case. It is not a direct read-across to Northern Ireland. However, the key point about directors of children’s services in any organisation is not about the quantum but — uniquely in this case — the level of the post. He or she must be at a sufficient level in the organisation to have the clout necessary to ensure that the difficulties and deficiencies revealed by the Climbié case and similar cases do not occur here.

212. Those difficulties include issues that fall between stools, a lack of sharing of information, and a lack of co-ordination within, between and across organisations. The issue, therefore, is having someone at sufficient level in the organisation to pull the levers and ensure that that cannot happen. That is why thinking has evolved to show a particular focus on the second tier.

213. Mr McCausland: I welcome John’s assurance that the Department will act in a way that is clever and sophisticated.

214. Mr Stewart: There is nothing new in that.

215. Mr McCausland: It is a novel approach, and one that the Committee welcomes.

216. Paragraph 16 of your submission states:

“Local managers and service staff will have the flexibility to respond to specific local circumstances and need. They will be sensitive to and receive input from a committee for that area comprising, amongst others, a number of elected representatives."

217. What do you mean by:

“They will be sensitive to and receive input from"?

218. Mr McGrath: It means that a range of functions would be provided locally to the education system, including schools, statutory and non-statutory youth providers, and so forth. However, they will also act as the local front offices of the ESA, they will be expected to connect and interrelate with local representatives and other service providers.

219. Mr McCausland: What power will the local committee have?

220. Mr McGrath: The committee will be largely advisory, but it is a question of striking a balance. The model for the committee may be based on bodies such as the district policing partnerships (DPPs) — and I use that model carefully — which are there to advise the system. It is not a central decision-making body. I am trying to find a body in the pantheon of local bodies with which to draw a comparison. It will identify the challenges and the particular circumstances of a local area, of which ESA and its parent organisation must take account.

221. Mr McCausland: Staff in a local office will take decisions, and they will probably be advised by a local committee. However, they can ignore that advice, in the same way that the police often ignore the advice of a DPP.

222. Mr Stewart: Perhaps the key difference is that this committee, unlike a DPP, is part of the organisations, and I do not think that it can, therefore, be ignored. The formal power of a committee would depend on which, if any, formal functions are delegated to it from the ESA.

223. Mr McCausland: At what point would that be decided?

224. Mr Stewart: We would welcome the Committee’s views on that; it is not set in stone. As John said, we must strike the right balance: on the one hand, this is not intended to be a federated model, and we do not intend to move from five boards to six or 11 boards. On the other hand, there is a genuine recognition that for this sort of model to work properly, those committees cannot be ignored. The representatives of local communities and locally elected representatives must have sufficient influence over what is happening at that level. Otherwise, the structure would be a waste of time.

225. Therefore, we want to strike the right balance, and we welcome the Committee’s views on what functions the committee have and what decisions should it make. How far beyond the role of advice ought it to go?

226. Mr McCausland: Might it go beyond being merely advisory?

227. Mr Stewart: The legislation allows for that; it allows for functions to be delegated to the committee. However, the key point is that the committee is not, in any sense, a separate organisation acting off its own bat; it remains functionally part of the ESA. Anything that a committee does or says, it doesan says in the name of, and as part of, the ESA.

228. Mr McCausland: I am interested in the possibility that its role might be more than simply advisory, because that has not been clear until now.

229. Paragraph 17 mentions:

230. “six units (one covering greater the greater Belfast area and five others)".

231. I understand that grouping 11 councils into pairs results in five units, but does “greater Belfast area" refer to the Belfast council area as it emerges, or might it not necessarily be totally coterminous with that?

232. Mr McGrath: Our starting premise will be that it should be based on the new Belfast district council area.

233. An issue with area-based planning is that several areas will straddle the boundaries. However, we suspect that that would be the case regardless of where the boundary is cut. That is something that is facing other Departments as well as education. In the current Belfast area, there were planning issues concerning Poleglass and Newtownabbey. It would take a strong argument to convince us that we should not stick to the new Belfast district council area.

234. Planning work has to be done on a cross-boundary basis. Two or three of the area offices might be engaged in strategic planning; the travel-to-school patterns, for example, do not adhere to administrative boundaries.

235. Mr McCausland: Have you any indication of what percentage of the activities and expenditure that are currently dealt with by the individual board would remain at a local level? Human resources, pay systems and so on will be centralised, but hat percentage of activity will continue to be delivered at a local level?

236. Mr McGrath: I cannot give you a figure because thinking on area offices is still developing. It may well be that there will be a change in the pattern of spending within boards.

237. Mr McCausland: I am not seeking an exact figure such as 36·9%, but is it a half, a quarter or three quarters? I want you to make a guesstimate.

238. Mr McGrath: We will need to come back to you on that, Nelson. The thinking is that local area offices will have a number of functions, including dealing with standards and school improvement. Ken Robinson might comment on this point, but the view is that anyone who is talking to schools about standards must have credibility. The model might be a principal who is on secondment to ESA, and the budget for school improvement would be devolved locally to deal with that.

239. There will be an arm that deals with area-based planning. The area teams will have to undertake several area-based planning exercises because, for example, travel-to-school areas will be much smaller than some of the other areas. There will be a range of direct educational-support mechanisms, including education welfare officers, educational psychologists, help for literacy and numeracy, and child protection. The current CAS budgets will be disaggregated and reshaped to the fit the commissioning model that we talked about earlier. There will be support for a linkage with youth in early-years education.

240. There will be management support and a finance support function in the local management of schools. There will be human resources capability to help schools on local issues of recruitment and discipline. Some elements of the function area will even be available locally.

241. Mr McCausland: Consider, for example, a building on Academey Street in Belfast that has x number of staff carrying out a range of activities. What presence will remain in that building if these plans come to fruition? Will a similar number of people be employed there? We are trying to get a sense of what situation you envisage. When will it become clear how the process will work out?

242. Mr McGrath: It will be a while before that becomes clear, but there are two strands. As Gavin Boyd has explained, the education and skills authority’s thinking is that centralised functions reflect its current footprint. For example, finance could be centralised in Ballymena; human resources could be centralised in Omagh; the teachers’ payroll is already based in Derry; something else could be centralised in Armagh; and there could be a centralised function between the south-east and Belfast. Therefore, some of that would remain under the new model. There would also be an area office for Belfast, which might be —

243. Mr McCausland: It is the area offices that I am talking about.

244. Mr McGrath: We do not anticipate the area offices being big — they will have, perhaps, 50 people in them. Those offices will have budgets and will be dealing with the support for the local management of schools; that is, the services that need to be available locally. Subsidiarity is important — we must provide services locally in order to support schools, but those services that do not need to be available locally should be centralised. Doing so will produce economies of scale and will mean that the services benefit from more professional oversight and management.

245. Mr Stewart: Some services may move out of Academy Street, but they will not all necessarily move centrally — some may move more locally. I am sure that the Committee is aware of the good examples that exist of services that have been developed by particular learning communities, where groups of schools have developed services, functions, and activities that call for staff to be recruited and based in the schools. As we move beyond the Curriculum Advisory and Support Services (CASS) into school-led self-development and self-improvement, we see a lot of scope for that model. Therefore, some services that are currently based at Academy Street will end up being provided out in the schools.

246. Mr McCausland: I have no problem with that; there are services that should be moved from what are currently boards into schools.

247. Mr McGrath: What do you have in mind, Nelson? I think that we are talking the same language.

248. Mr McCausland: I agree that a conversation should be had about that, but not necessarily this morning.

249. Mr McGrath: The idea is that the services that need to be available locally to help support schools should be available locally, which is why some elements of finance and human resources will be available locally, services relating to recruitment, discipline, and absence management, for example. The big machine elements — for example, payroll and awards — can be centralised.

250. Mr McCausland: People are familiar with the current system because it has been there for some 30 years. It would be helpful is to have some indication of what a typical board will be like. That is why I am asking about percentages — I want to know what is moving up, what is moving down, and what is left sitting there. That would help us to develop a better understanding of what the system might be like and the implications of that.

251. Mr McGrath: I understand your point, but the problem is that in the case of Belfast, for example, some people are probably not based in Academy Street, which makes it difficult to calculate figures for before and after. I hope that, before too long, we will be able to provide an embryonic idea of the structures that might exist in an area office, which should help.

252. The Chairperson: You must be pretty near that stage, because you mentioned going out to consultation and having some of this in place by February —

253. Mr McGrath: It has been an iterative process and we are still testing because, to be frank, I have been in the Department for almost 12 months and the whole issue of local presence and sensitivities has moved on significantly in that time. That issue was not on the radar as much when I joined the Department, the concerns were about the money agenda and centralising. However, the issue of local sensitivity and local support has come much more to the fore because the Minister has put it to the fore and it fits with the whole issue of standards. A lot of elements are in train currently; the issue is not signed off.

254. ESAIT will go out to consultation shortly and I am quite happy to return to the Committee before too long — perhaps with Gavin — to try to paint a more detailed picture of that. The scheme is on the cusp of being realised; we are simply fine-tuning a lot of the detail. We need to feed in how area-based planning will work — an issue that I know that the Committee will want to discuss; examine what skills are needed to do that locally; find the balance between local presence and engagement; and undertake core pieces of research, analysis and number crunching about how we do that.

255. I see area-based planning as an issue that the area offices will have a major role on and that will be very labour-intensive. It is not just education providers who will want to know about this issue — local communities will also want to know about it. It will be very time intensive so we need to factor that in to the thinking. We are developing that but will want to come back to it pretty quickly, because — as you pointed out to us previously — the more that we paint the picture and fill the gaps, the more that that will help Committee members to understand what we are about, which is something that we take very seriously.

256. Therefore, we want to be able to add quickly to the information that we have given today. I am not sure whether we have the precise number analysis that you would like. However, we could, perhaps, look at a hypothetical board and imagine which functions might go in which direction in the future. If the Committee wishes, we will talk to ESAIT to see whether we can do that, if the Committee thinks that that it would be helpful.

257. Mr McCausland: Could that be done in the next few weeks?

258. Mr McGrath: Yes, of course. The structure of ESA and the functions of the area offices should be put out for consultation soon, as Michelle McIlveen said. We need to be explaining what the area offices will do. We want to be explaining more. Although we are explaining to the Committee, we also want to be explaining and filling in the gaps much more for the wider stakeholders. That is one of the issues that Joe Reynolds is on board to help us to do in the period up to the spring.

259. The Chairperson: We could table a motion for the Assembly and maybe get the information on the day before.

260. Mrs M Bradley: It could be rushed through.

261. The Chairperson: Not that I am not a cynic, by the way.

262. Mr O’Dowd: We would have to make sure that the Irish version was available.

263. Mr McCausland: Yes, for Michelle.

264. Mr B McCrea: The Ulster Unionist Party has deep-seated concerns that this is a triumph of process over policy. We do not think that there is agreement on what the policies should be and that some sort of mechanism has been arranged in lieu of that agreement. It does not seem right that regions should be divided on a geographic basis. Inner cities provide a big challenge, so I wonder why the Department takes Belfast as a council area and lumps all the schools in together, because some schools are in challenging inner city areas and others, such as Grosvenor Grammar School, that straddle borders.

265. If you had told me that Northern Ireland has a population of only 1·8 million people and that that is why we could afford to have one regional body, and why ESA works — despite what was being said by colleagues from Londonderry — I could, perhaps, have understood the intellectual thinking behind that. I though that the essence of this process was about removing duplication. Yet, we are just going to go back in and do the same thing again. There will, effectively, still be five boards.

266. Mr McGrath shakes his head, but he must recognise that there is a dichotomy in the views that I am expressing. On the one hand you say that ESA will police the system, look at standards and control the problems that were highlighted in the PAC report on numeracy and literacy. On the other hand, we talk about decentralisation and about getting as many resources as possible to the school level. I view those as being inconsistent.

267. With regard to local involvement and political input, I do not particularly want local councillors involved in the issue. The changes that you are trying to bring about have a political — with a small ‘p’ — connotation. If you do not get on board the views of everyone, you are not going anywhere with this. I see no mechanism in the new arrangements to get those views on board; in fact, I see a mechanism to sidestep what are the widely held views of different political parties, because one particular grouping may be in the ascendancy at this time. I am looking for a mechanism that ensures these matters are not run roughshod over the views of a lot of people.

268. Mr McGrath: ESA is a public body to deliver public policies, as signed off by the Assembly and the Minister. The political level and political process have to determine the policies. ESA can only take them and deliver. With regard to your point about boundaries, you are correct in saying that it is a small population, and I am not sure whether we made it clear if we can afford a model with at least five organisations all doing things differently in such a small population. If everything was being done consistently, there might have been a different debate.

269. I made the point that there are differences, and the challenge about school improvements in particular circumstances presents differently in inner city Belfast than in some rural areas. Therefore, in each area office, the profile of school improvement, as opposed to raising standards, will be different. In some areas of Belfast, it will be the major issue, elsewhere it will be a problem but not the major issue compared with the balance of staffing. However, no matter where the administrative boundary is drawn, there will always be a problem that crosses it, whether it is in health or in education.

270. Mr B McCrea: I hope that you do not mind me saying, but that is why drawing boundaries on a geographic basis seems illogical. If you had said to me that numeracy and literacy is a core issue cutting across the entire 1·8 million of the population, albeit focused on various areas, I could understand a body being set up to deal with numeracy and literacy, or if you had said that the Department understands the problems about early years and that it wants to have an early years strategy across Northern Ireland —

271. Mr McGrath: Which we are working on.

272. Mr B McCrea: Absolutely, but it is form following function. We are carving up what seems to be, and I apologise for saying this, a rehash of the old system, and that is a worry. I will not labour the point, but you need some help.

273. Mr McGrath: Yes, but essentially anything that makes this seem as if we are moving from five boards to six or 11 is not what my Minister is about, and it is not in the remit that we have given to ESA. This matter needs to be viewed in tandem with the issues that we discussed with Ken Robinson. It is about putting schools first and enabling them to have as much scope as possible regarding how they shape and go about their business. Therefore, there need to be things that are closer to them. I do not see any contradiction between delegating responsibility to schools and getting more control over their affairs but then holding them to account for delivering standards. There is no contradiction it that. You empower them to do as much as they can, and then you say that you will measure what they have done against benchmarks and expectations.

274. Mr B McCrea: I could get into a discussion with you about that, because I do not subscribe to a one-size-fits-all approach. Some schools are operating in very challenging areas and have different sets of standards. Furthermore, I reject free school meals as being a proxy for social deprivation, because many people do not take them up. I look at all those issues to find if there is a system that will help to move things forward, and my personal feeling — and I think that there is some support for this view from the public — is that devolving control to local school leaders, with appropriate financial support, appears to be the way forward. However, all the time I am worried. We will not sort out this issue today, but I am simply telling you our concerns.

275. It all comes back to the failed command and control structure of a centralised Department or a centralised ESA telling people what to do, standardisation, one-size-fits-all, what happens here will happen there. All of that seems to strip the professionalism away from the teachers and the people who can make developments.

276. You said that ESA is not really for policy — it is for implementation and that policy happens elsewhere. However, everything is connected. There is no forum for my colleagues and I to influence policy, short of winning the election and taking the position of Minister of Education.

277. The Chairperson: You have 20 years. [Laughter.]

278. Mr B McCrea: One of the good things about coming from my culture is that I do not mind being in a minority of one, if that is the case, because the truth is still the truth.

279. When it comes to the issue, therefore, I put to you another challenge, which I am not necessarily expecting you to resolve, because there are other political aspects to it. Nevertheless, I tell you that our biggest concern is that ESA is a Trojan Horse designed to propagate other policies that do not have the agreement of a significant proportion of the population. If ESA is given all of those powers, people will fight battles by proxy, and I do not believe that rationalisation and cost saving — which the Ulster Unionist Party supported in the early stages — will be achieved. However, we are extremely unhappy that ESA is being used for purposes for which it was not originally intended.

280. Mr McGrath: The political process by which policy is determined is not for me to comment on. Whether the organisational structure will be ESA, five boards or something else, it will have to deliver whatever policies come down. I cannot offer a view on the political input into that.

281. The Department favours the points that you made about local sensitivity with regard to the local structures. The approach to tackling issues about standards and school improvement in inner city areas and the mechanisms for that are likely to be different to the approach that is taken in a rural area where schools are not close together and issues of scale are a consideration. Therefore, a policy of school improvement will be set down and driven forward by strategy from the key post at the centre of ESA, but the precise delivery mechanisms may differ depending on the local area and the circumstances.

282. Particular issues relate to inner city schools in areas such as north Belfast, Shankill and west Belfast. A special push, which might not be needed elsewhere, will be needed from one of those area offices to deal with a significant problem, and school leaders will need to be directly involved in that.

283. Mr Stewart: I shall answer Basil McCrea’s earlier point. John has explained why the Department sees the need for local services to be locally based. That lends itself, therefore, to a structure of delivery of services that has a strong geographical element to it, whatever that may be.

284. However, the legislation is flexible enough that if ESA, for example — or if the Department instructs ESA — needs to take a particular focus on youth services, early-years provision or some other aspect of education delivery, ESA can set up a committee on early-years provision, youth services or on raising standards for the length of time and with the focus that is deemed appropriate to deal with a cross-cutting or thematic issue. The legislation does not bind us to having everything squeezed through a geographical sieve; it is flexible enough to cope with the challenges that are there.

285. Mr McGrath: Mr McCrea made a point about free school meals as indicators of social deprivation. The Department will introduce proposals for a longer term review of the common funding formula, and Catríona Ruane is keen to address how to recognise deprivation in the funding formula. That vehicle is available, and, when results come out of that through the political process, ESA’s job will be to distribute funding in line with that.

286. Not every policy aspect is covered by the legislation. As Chris said, as policies emerge and are signed off, ESA will have to cope and flex itself to deliver that with the appropriate balance between regional strategies and coherence and local flexibility. That needs to be fairly sophisticated, because this is a very complex and sophisticated business. I use that term in a generic sense, because we are trying to improve.

287. Mr B McCrea: I want to ensure that you understand the key point. The Ulster Unionist Party does not see the intellectual rationale for having five or six sub-regional bodies. That appears to be an arbitrary decision. If you said that there are different challenges, one could argue that there is an inner city challenge in Belfast, that there is a Belfast travel-to-school challenge and that there is a rural challenge that is separate from those two challenges.

288. A regional body is required in order to achieve the real economies of scale that have been set out for ESA. The sub-divisions should focus on the challenges that schools face, such as numeracy and literacy, early years, and social deprivation and exclusion. Why has the Department arrived at five plus one as a set of bodies? That is not logical to us. John said that the travel-to-school areas are likely to be different —

289. Mr McGrath: But smaller.

290. Mr B McCrea: — different to those inner city areas. I personally believe that policy decisions on area-based planning need to be taken in a regional context, because people travel such large distances, and there are other areas in which two schools can be only 500ft apart and yet have completely different demographic intakes and challenges. I have set out those issues in an attempt to be helpful. Our concern is that the new structure will simply be a replication of what went before, and we do not like the look of that.

291. Mr McGrath: That is helpful. The education and skills authority is designed to help to support schools. One of the issues that Ken Robinson raised was having support available locally, whether in human resources or school improvements, whereby someone can go and have a dialogue with a group of local principals and suggest that they should have something available to them.

292. However, it is difficult to pitch where on the spectrum an issue sits between, for example, literacy support or something that is a bit more sub-regionally significant. Basil McCrea essentially summarised that balance. The authority is not six bodies, it is six areas, and, in one sense, it is not unlike the way in which the Housing Executive is organised. It is a regional body with a number of areas. Area managers do a lot of the political connection and facing up, dealing with local councils and representatives. However, policy is set down centrally. ESA is a similar sort of model: it is not six new education and library boards; policy will be set down centrally by the Department; and the delivery of issues such as special educational needs, where there are five different approaches, which is unacceptable, will move towards more coherence.

293. There are different circumstances, and Basil McCrea has just produced an example of such a difference in travel-to-school. Addressing area-based planning in the Belfast area will present a different set of challenges to those in Fermanagh, which, being a larger county, will be identified as having a larger travel-to-school area, whereas Belfast has a hub-and-spoke model. The solutions may be different, but the same principles about area-based planning are needed and will come out from the centre.

294. I take Basil McCrea’s point, which is helpful. It is precisely on that spectrum that we all want to get it right: that ESA is a regional organisation, with central policy and guidance from the Department, a consistent approach, and equity and equality with regard to what children get, while having a sensitivity to respond to local needs and circumstances.

295. Mr Stewart: That is why we were cautious in our answer to the earlier question about what might be formally delegated to local committees. On the one hand, we must avoid the situation in which a committee could be ignored by a local office. On the other hand, we do not want to bring about the thing that you fear, which is a federated model of six boards. Therefore, the Department must strike the correct balance with regard to what powers would be devolved formally to a committee.

296. Mr O’Dowd: My questions have been covered, but perhaps I might comment on Basil McCrea’s previous point. Health and education almost mirror each other in the sense that where there are poor educational outcomes, there are poor health outcomes. If you advance Basil’s argument, the Health and Social Care (Reform) Bill, which was recently passed by the Assembly, would have further broken down the health structure, with a health trust for north and west Belfast, or broken it down even more for west of the Bann in order to zone in on areas of poor health outcomes. As I see it, ESA can, under its structures, be broken down in order to examine areas of poor educational achievement, just as, under the health trusts, it will, hopefully, be possible to zone in on north and west Belfast. Therefore, the ESA structures are not so rigid that they simply apply a one-size-fits-all, as Basil put it.

297. The other side of your argument leaves us with the prospect of having not five or six new boards, but 950 boards — one for each primary school in the North. If each primary school were allowed to set its own educational agenda, there would be 950 different outcomes instead of one centralised outcome. That can not be done for the same reason as the Health Minister does not allow doctors and nurses in each hospital or health centre to set health policy.

298. They implement, and are key to, the health policy, but there needs to be a centralised direction, which must also be as democratically accountable and as responsive as possible to the needs of local communities. Under ESA, that is possible, because the majority of members of the board of that authority would be political representatives. The local communities would have their political representatives. Nelson McCausland’s point about what heed senior management must take of the committee needs to be expanded and further explored.

299. Mr B McCrea: I think that I have obviously not made my position sufficiently clear: I was not going down the route of having 950 individual boards; I was going in the other direction. The idea of having a regional body is an interesting one, because many of the issues, such as area-based planning, have regional implications. If a solution is provided for Downpatrick, for example, that will have an impact on the intake of schools in Belfast, because some pupils currently travel from Downpatrick to Belfast. My view is along the lines of give onto Caesar what is Caesar’s; that is, certain issues must be dealt with on a regional basis, while others must be dealt with on a topical basis, because the geography is not relevant.

300. Mr McGrath: There is nothing in the structure which means that that cannot happen.

301. Mr B McCrea: I just wanted to make that clear, because John O’Dowd was, perhaps, thinking that I was heading in a particular direction. My view is that the Ulster Unionist Party supported a regional body because Northern Ireland is a relatively small area with a relatively small population, and it is possible to do it on a regional basis. However, one then gets into situations in which, quite patently, that sometimes does not work due to different regional variations.

302. I want someone to tell me the guiding principles, in which everyone’s views are respected and worked out. A process that works properly can then be devised. In other words, we should try to get the cart behind the horse, not in front of it. My worry is that, in the absence of having worked out those guiding principles, we come up with a set of rules, which is almost like shaking dice and seeing what way things fall out. I do not believe that that is helpful.

303. I apologise, therefore, if I did not express myself properly at the outset. I agree with John O’Dowd that there must be a tie-in with health, because the inequalities in each sector are linked, and there is also an interesting point with regard to regional structures.

304. Mr McGrath: John O’Dowd made a very good point. The other dimension in all of this is what happens when the RPA of local government occurs and community planning rolls out. Health inequalities cannot be dealt with in isolation from wider issues. Forums are required, and the Department believes that the structure of ESA offers the potential for community-level planning into which the education aspect can slot neatly. Furthermore, the structure will also allow for someone of sufficient calibre to be available to contribute to the wider process from an educational perspective, in relation to the health perspective. Whether each sector should have exactly the same boundaries is always an issue and is never right.

305. Basil McCrea is quite right in saying that an area-based planning exercise around Belfast would be of sufficient weight that it would not be done by the Belfast office alone, because it would have such significant knock-on implications that it would probably be centrally led within ESA and have to be signed off at a very senior level. An area-based planning exercise for somewhere such as Fermanagh or Coleraine would be much more self-contained within that area, and could probably be led locally. However, it would still have to be signed off centrally in order to ensure that it met the central principles governing area-based planning, and did not have repercussive implications that were not spotted locally.

306. That is how that balance would be achieved. It is not a do-it-yourself-locally thing. It is a question of balance. Whether tackling health inequalities or wider issues of deprivation, a joined-up public sector approach is required. That is not easy to do, under even the current structures, and ESA offers the potential to achieve that.

307. In my previous work in the Department for Social Development, we tried to pull the various factors together. If I may cite one example: we did work at Dunclug a couple of years ago, and, from the education sector alone, one had to get someone from the CCMS, someone from youth services and so on, and one would end up with four people in the room to deal with just the education bit. Under this model, however, the person leading the local area office is the front person in education, with, for example, the chief executive of the local trust or council. That is where you begin to get some of the advantages of the new model.

308. The Chairperson: I want to tease that out: it is vital that there are public representatives on the, for want of a better phrase, local committee. However, how do we then define the key stakeholders, who they are and how they get onto that committee? What we do not want is a local strategic partnership (LSP) Mark II, when everyone came and said: ‘That is fine, lovely, great but I am sorry, I cannot make a decision on that because that is outside the remit of my Department’, and it becomes pointless.

309. Mr McGrath: I understand exactly where you mean.

310. The Chairperson: If that local committee does not have the power to make a decision, one wonders why bother getting everyone around the table in the first place, because paragraph 5 of the document entitled ‘Structure of the education and skills authority at regional and local levels’ – which is, I suppose, directed at the board – states that::

“The Minister, through her Department, will direct the work of the ESA Board."

311. If the Minister does not give direction to the board, and if the board does not delegate power to the local committee, we will all be shaking our heads and saying that we disagree, but nothing could be changed.

312. Mr McGrath: I understand exactly. However, the LSP was, in a sense, a collection of representatives of every stakeholder. These committees will be committees of ESA. There will not necessarily be officials from other public bodies on the committee, because that would be mixing up governance issues.

313. The Chairperson: Do you understand the rationale behind my question?

314. Mr McGrath: I understand exactly.

315. The Chairperson: How will we identify who is a key stakeholder in a local area and is best suited to sit on a local committee? Taking the point that Basil McCrea and John O’Dowd made about the crossover between education and health, there is a big issue there, because we have all visited schools in which there are problems with, say, getting psychologists into schools each side of the current provision that is made by the Department.

316. Mr McGrath: I think that one has to be very careful. These are committees of ESA, and I am not sure that officials from other public bodies would sit on them, because that would put them in a difficult position. In my view, the key stakeholders begin with the community — the people that we are trying to serve — followed by schools and other bodies. Within youth and early-years services, there is a large voluntary representation. One would want to involve those who are more closely connected. The local committee must reflect the community — the pupils and the parents — rather than institutional stakeholders.

317. You are right; further work is needed, but you have highlighted some of the issues about which we need to be very careful.

318. Mr McCausland: You say ‘we need to be very careful’: I think that there are questions around who would represent the interests of parents and the community. Those matters must be teased out very carefully.

319. Mr McGrath: I know, but I just meant that, at times, stakeholders are seen as just schools and some sector representatives. In my view, the principal people that we are trying to serve are communities and children and pupils.

320. I understand the point that you make about determining who are to be the representatives of those groups, but they should not be populated with the providers, rather than the users, of the services.

321. Mr McCausland: That is fine.

322. The Chairperson: Is there any paper or emerging thinking that you could provide to the Committee to help that process? Has ESA done anything in regard to that?

323. Mr McGrath: To be honest, I do not think there is a lot in stock on that issue. We are grappling with the issues that have been well articulated by Basil McCrea regarding how a balance can be achieved between local sensitivity without diluting the advantages of a regional body, and without confusing decision making or mixing up accountability, which can lead to trouble. The factors that were flagged up about the role of the committee and the delegations will need to be addressed. Today’s meeting has been helpful, because issues were raised that had not yet come into our ken. The Department will do some work on those and bring back a think-piece paper on the committees.

324. Mr Stewart: You have given us two areas on which such work clearly needs to be done and more detail produced. One is more detail on the precise delivery functions at the local level, and the other on what those committees will do, who will be on them, and how they will get there.

325. The Chairperson: That would be very useful. I have purposely allowed the discussion on the first paper to carry on rather than moving to discuss the second paper. If members agree, and if John McGrath is happy with that, we will deal with the second paper, on the sectoral bodies, next week.

326. Mr McGrath: I am quite happy with that.

327. The Chairperson: I am conscious of the time, but I want these sessions to be focused and beneficial, and we have stuck reasonably well to dealing with the paper, for which I commend members. I know that Trevor will do the same.

328. Mr Lunn: Of course I will. I want to ask about the establishment of the organisational structure as outlined in the paper. If recruitment is to begin in early spring, does that mean that senior people will be recruited before ESA has been legally established?

329. Mr McGrath: The ideal is that we are not actually appointing people. The recruitment process can be started, but people cannot be appointed until the Bill is, ideally, on the statute book, or is in such a condition that it is clear that it will be on the statute book. There is a balance to be struck. The target date is 1 January 2009, and people will have to be appointed so that there is an organisation to pick up the reins on that date. Therefore, there are difficult judgments to be made with regard to balancing the implications of a political process, the scrutiny of this Committee and the Assembly in general, and taking some preparatory steps.

330. Advertisements will be placed, but it is only when someone is appointed that a definitive decision has been taken. In the same way, as I have mentioned, for the sake of openness we need to identify the chairperson-designate for ESA at an early stage, because the chairperson should, ideally, have a role in the appointment of senior executives, so one would want him or her to be in place. The chairperson should also be involved in the appointment process of the members of the authority, in line with the practice for commissioners. Therefore, the Department is now looking to start a process to identify a chairperson, but it could be June before that process has culminated. However, some of those processes must be started.

331. The Chairperson: Who would appoint the chairperson?

332. Mr Lunn: Presumably the Minister will appoint the chairperson. On the issue of appointing staff, I presume that we are talking about the 50 senior staff to which the paper on the structure of ESA refers. I believe that there was a suggestion earlier that they would come mostly from within the existing education and library boards. However, some will not: staff in the boards may be reluctant even to apply until they see what way the whole thing is going. It is not certain that ESA will be established, although I would like to think it will be.

333. Mr McGrath: The point is that something needs to be done, because if it is established on 1 January, everyone, including the Committee, will be exercised to ensure that it is ready to pick up the mantle. We spoke earlier of asset stripping, as Michelle McIlveen termed it. There must be a balance. We must start some processes and then make a judgement to finish them. For example, are people appointed formally or on another basis?

334. Gavin Boyd has been chief executive-designate of ESA for a significant period because he did not envisage this delay. Under a different scenario, if there was no ESA then that status would end. We would want to appoint a chairperson, or a chairperson-designate, subject to the Assembly passing the Bill. We should do everything in the proper sequence for the 1 January date. The Department has put together a fairly detailed and critical path, which is still being refined, listing everything that needs to be done in order to get ESA up and running. It is highly challenging, and slippage on one item will have a knock-on effect. For example, if there is no chairperson to participate in the recruitment of senior posts, that will be delayed, which will delay the appointment of members, and the structure will be up and running.

335. At the same time, we have serious concerns about the position in boards as a result of the uncertainty to date, which has people voting with their feet and moving to other jobs in other organisations because they did not have the certainty of ESA coming along and applying for positions there. We need, therefore, to send signals to the recruitment market. Senior posts will be advertised in line with the Public Service Commission’s guidelines on the review of public administration. There will be due process within the parameters set and the outcome will be the most appropriate that can be achieved within a proper recruitment process. The expectation is that a number of those working in the current system will be successful, but there is no automatic presumption: it will depend on the outcome of the recruitment process. In some areas, it may well be that there is not the same reservoir, because with regard to age profile, a lot of people are part of the present – they will choose not to be part of the future.

336. Mr Stewart: I will add some detail to that in order to reassure Trevor Lunn further. We do not in any way ignore the democratic process, or anticipate the will of the Assembly. As John McGrath has said, however, the practicalities demand that certain processes have to get under way now.

337. There are rules that govern this: we can take certain action at only certain points in the process. It would be entirely wrong to move on the appointment of a chairperson or members of ESA before the Bill had proceeded to Second Stage. The Department of Finance and Personnel’s rules on financial guidance and accountability state that it is legitimate for us to incur expenditure in the appointment of staff at this stage, and to take steps related to the appointments now that the Second Stage of the Bill has been reached. That does not mean that there is any guarantee that this will go ahead. Therefore, we must take steps to manage the risk involved in doing that. We cannot at present appoint senior staff to ESA, because ESA does not exist. If we appointed staff at present, it would have to be, as John McGrath said, on a designate basis and to an existing organisation — the Department or one of the existing education organisations.

338. That might provide a part of the answer to Michelle McIlveen’s question on asset-stripping. If senior appointments are made in advance of 1 January 2010, then those staff could be based, initially, in one of the existing organisations and combine their new role with a transitional role in that existing organisation.

339. A further risk-management arrangement would be to make the appointments, initially, on a secondment basis. Then, in extremis, if the Assembly decides to vote down the Bill and not to proceed with the review of public administration, the secondments would be ended and the staff would return to their original organisations. We would still have incurred expenditure, but only nugatory expenditure, and we would have managed the risk to highest possible degree.

340. Mr Lunn: If we could move on to the authority itself and the appointment of members and chairperson: if the Assembly decides to amend the requirements for members of the authority, particularly that the majority of them should be local councillors — and I believe that only the Alliance Party is absolutely certain that that is a bad thing; however, we are very important, you know —

341. Mr B McCrea: I think that you got a little support from others on that matter.

342. Mr Lunn: If we managed to persuade the Assembly that that is not a good thing, is it possible that the Minister and the Department would have already moved ahead and appointed members-designate, so to speak?

343. Mr McGrath: Given that a chairperson-designate would need to be appointed in order to participate in the process of identifying members, it is unlikely that the process to appoint members would begin until after the summer. Therefore, I imagine that if any detailed changes were made, we would know about them.

344. Appointments are appointments, as opposed to jobs. If it turned out that the nature of those appointments no longer existed, there would be scope for the Minister to terminate them. Appointments are not the same as jobs, whereby it would be too late to terminate the appointment if someone was already in post. People would be appointed on the basis that they would take up a post at ESA if the structure of the authority was as originally intended. If that structure changed, the matter would be orchestrated in such a way that the appointments would lapse or would have to be made again. It is a process that can be refined very easily. Appointments are easier: they are not jobs; they are appointments made at the Minister’s discretion.

345. Mr Stewart: They can be un-appointed.

346. Mr McGrath: They can be un-appointed.

347. Mr Lunn: I might stand down from my position as a councillor and join that.

348. Ms McIlveen: I want to return to a point that Trevor Lunn made with regard to appointments. Would the situation be similar to that of area-based planning groups, whereby the Minister simply taps someone on the shoulder, or will there be open recruitment?

349. Mr McGrath: No. The Office of the Commissioner for Public Appointments has very clear guidance. Any of those appointments – for example, the chairperson – will be widely advertised publicly. People will apply and will receive a job description, et cetera. They must submit an application form. Application forms will be scrutinised in the first place with an assessor who has been identified by the Office of the Commissioner for Public Appointments. In that case, for each competition, an assessor is identified and chosen by the commissioner. The Department does not choose the assessor. That individual is there to ensure that the process is conducted properly.

350. From that process, those candidates who meet basic eligibility requirements will be interviewed by a panel which, again, includes an assessor from the Office of the Commissioner for Public Appointments. That will result in the selection of the names of those deemed fit to do the job – the key principle which the commissioner must ensure – which will go to the Minister, who can choose one of them or instruct us to start the process again. No Minister can appoint anyone who, under the commissioner’s rules, is not judged to be up to the job.

351. Ms McIlveen: Presumably, those positions will be time-bound and reviewed after certain periods? There will not be a situation in which the same board remains in post for life.

352. Mr McGrath: No. A term would normally three or four years. The commissioner’s rule is that no one should normally do more than two terms. When a board is appointed, the convention is that a stagger is built in whereby there would not be a date when all members would stand down and a completely fresh board appointed. Some people would, for example, be appointed for four years and then another two, and others for four years followed by another four, while some would stand down after four years and there would be rolling membership. That is the convention, and it is carefully orchestrated and scrutinised by the commissioner’s office.

353. Ms McIlveen: The remuneration will, presumably, not be too extensive. Will members be paid a wage? Obviously, the role will carry heavy responsibility.

354. Mr McGrath: There will be remuneration, which would take account of the role. ESA will be a major public-sector body.

355. Ms McIlveen: I would be concerned that members would, essentially, be on a wage that competes with that of the chief executive.

356. Mr McGrath: No, we are very clear on that matter: the entire process to identify chairpersons and board members is designed to test their understanding of what non-executives do on a board, as opposed to executives, and that they understand the balance of boards. Their role is to scrutinise and challenge. They are not there to run the organisation on a day-to-day basis. The critical test in any such competitions is to understand corporate governance and the role of non-executives. The principal role of a chairperson is to manage and hold to account the chief executive and other executives.

357. We can return to that issue. When the proposals come out, we will be happy to talk, but this is a well-trodden path across the public sector.

358. Mr McCausland: When do you expect to start the process of appointing a chairperson? Do you already have the job description and personnel specifications?

359. Mr McGrath: The Department is working on such material to bring to the Minister about the critical path. It would be our advice that we need to start the process soon by publishing advertisements and so on with a view that it could well be May or June at the earliest before we would be in a position to appoint someone. Even the appointment would be on a chairperson-designate basis subject to the organisation’s coming into existence. Therefore, we need to start soon because it takes time to get to the position of having a chairperson ready to step into place at the appropriate time.

360. Mr K Robinson: The Library Authority has already started that process by sending circulars to councils and so forth.

361. The Chairperson: The travel-to-school issue was raised several times by members. What work has the Department done on that, and what is its current thinking on that? Perhaps you could prepare a paper for the Committee on the issue.

362. Mr McGrath: Travel-to-school is very much in the context of area-based planning, so would that be the framework in which to put it?

363. The Chairperson: Yes, exactly. It is not included in the context of this subject, but it has emerged as an issue, and I would like some more detail on it.

364. Mr McGrath: That is an issue at which the Department is looking generally. I know that the Committee is interested in it, so we would be happy to bring something back to the Committee in the context of area-based planning.

365. The Chairperson: Thank you, John, Chris and Joe. Next week, we will look at the issue of sectoral bodies.

366. Mr Stewart: We will also endeavour to supply the Committee next week with the input on employment matters for which is asked, if you wish to address that at the same or at a subsequent session. In any case, we will get it to you in time for next week’s Committee meeting.

367. The Chairperson: Thank you.

368. We will move on. The Committee agreed at its meeting on 10 December 2008 that there would an extension motion on the Bill, which we would consider today. We have until next week at the latest to make a decision on that. We have agreed that there would be a motion to extend the time that we can spend on the consideration as a Committee. You can see the reasons why the Committee needs to take as much time as it possibly can, not to delay the process unduly, but to make sure that the Committee has satisfied itself that the issues of concern are being properly and adequately addressed.

369. Another reason, which we also discussed at the meeting on 10 December, is that we do not know at this stage what is in the second Bill. If the Department makes sure that that information is brought forward in a due and timely fashion, as it has said that it will be, then I think that that gives us all confidence as we work through this process. It is not about trying to have a delay tactic for the sake of delay; it is to ensure that the integrity of this Committee is maintained and kept intact, and that we have given every possible consideration to all the issues of concern.

370. Therefore, I ask all members, particularly, I suppose, in relation to the parties, to make sure that we will make a decision by next week. We must decide on the date, and whether it will be before the summer recess or after the summer recess. That decision must be made, because the deadline for moving the motion in the House is 13 February.

371. The Committee Clerk: The Assembly must meet in plenary session and debate the motion before 13 February. Therefore, it is imperative for the Committee to put forward its motion by next week.

21 January 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill
Mr Edwin Poots

Witnesses:

Mr John McGrath
Mr Chris Stewart
Mr Joe Reynolds

Department of Education

372. The Chairperson: I welcome the witnesses from the Department. Good morning, gentlemen.

373. Mr McCausland: I understand that the embryonic education and skills authority (ESA) has been holding staff-consultation seminars with various sectoral groups. Can we get information about the nature of those meetings, who was in attendance and the contents of the presentations? I have received feedback that mixed messages were sent at one meeting in particular. For example, the impression was given that the ESA was unclear about where it was going — what a surprise. Moreover, it appeared to be asking what its role should be. I suppose that one should expect that in a consultation, but papers were tabled and PowerPoint presentations were given. Can we get copies of those presentations and papers?

374. Mr John McGrath (Department of Education): Yes, that should not be difficult. It is important to distinguish between those meetings and the workshops that the education and skills authority implementation team (ESAIT) has been involved in since the summer with staff members who fulfil various functions for the boards — transport, catering, education and children’s services — to inform them about what services might look like under the ESA. Such meetings dealt with operational matters. For example, how might catering be configured under a regional organisation? Papers were presented at the workshops and people were asked for their thoughts about how structures might be reorganised.

375. Mr McCausland: I am concerned that papers were presented about how the ESA envisages itself. The ultimate shape of the ESA depends on legislation; even last week, you spoke about flexibility.

376. Mr McGrath: Yes.

377. Mr McCausland: It is important that, rather than ESAIT simply consulting the various sectors, the political process be involved as well. We are talking about the legislation in very general terms, but its practical outworking is equally important.

378. The Committee should be updated on all the information that was given to those sectors.

379. Mr McGrath: Do you mean the representational sectors that we are about to discuss?

380. Mr McCausland: No. I mean the “services", as you would call them.

381. Mr McGrath: That is fine. The Department can obtain material for the Committee on that.

382. Nelson is correct that this is subject to legislation and to the overall framework that will eventually be agreed. The Department and the Minister will also have views, but someone must begin the preparatory work to realise what the options for delivery are, before those options are signed off. There is no assumption that the process has been taken for granted or that the political process is being ignored. For example, last week the Chairperson asked whether there would be 11 offices or six, and although ESAIT might have its own view on that issue, the Department feels that six offices would be more appropriate. There may be different strands of thought at the moment, but no decisions have been made.

383. In relation to keeping the Committee updated on all the work with the various services, ESAIT has conducted a series of workshops and presentations, so there would be a great deal of paper to present to the Committee. The alternative would be to ask Gavin Boyd to make a presentation on that process to the Committee.

384. Mr McCausland: Let us do that.

385. Mr McGrath: Would that be suitable? I am wary of drowning the Committee in 35 PowerPoint presentations.

386. Mr McCausland: Has ESAIT also conducted workshops with the various education sectors?

387. Mr McGrath: No. The sectoral organisations — as envisaged and set out in the paper that Chris will present to the Committee — do not yet exist. It is a different relationship. Gavin Boyd is talking to people who will move into the ESA as the legislation develops. For example, he is talking to those responsible for catering and asking how they would run a regional catering service. Entirely different discussions will need to be held with the embryonic sectoral organisations. Those discussions are on a different basis and require the policy context to be set before they begin.

388. The Department will lead the negotiations and will make arrangements for them. When the ESA comes into being they will have a dialogue role with it, as set out in the paper.

389. Mr McCausland: It would be useful to have a presentation from Gavin Boyd fairly soon.

390. The Chairperson: OK. We will take a note of that and see how we can fit it into the work programme.

391. Mr McGrath: I ask Chris Stewart to make his presentation on the sectoral organisations.

392. Mr Chris Stewart (Department of Education): Good morning. The Committee asked for more detailed information on the role and responsibilities of the various sectoral organisations under the review of public administration (RPA) arrangements, and I will provide that information through this presentation.

393. First, I will provide the Committee with some background information and context. The policy for those organisations is set out in policy papers 20 and 21, which the Committee has received; however, it is worth recapping the principles governing the development of the policy. I will not weary the Committee by reading all the principles out, but there are several key points that set the context for addressing the Committee’s concerns. Those are that all the sectoral-support organisations will be small; they will be non-statutory and without statutory functions; they will be modestly funded; and all sectors will be treated on the basis of equality, including what we refer to as the controlled sector.

394. On the organisations and their roles, the sectors that have indicated that they wish to be included in the arrangements are Irish-medium schools, represented by Comhairle na Gaelscolaíochta; integrated schools, represented by the Northern Ireland Council for Integrated Education; voluntary grammar schools, represented by the Governing Bodies Association (GBA); and Catholic schools — both maintained and voluntary grammars — which will be represented by a new voluntary organisation to be established by the Commission for Catholic Education. As I have said, the controlled sector must also be included in those arrangements; however, a slightly different approach is required for that sector, which I will describe in a few minutes.

395. The Department has commissioned, and received, initial draft business cases from those organisations and is undertaking a robust and detailed scrutiny of those business cases.

396. We aim to complete the process within six to eight weeks. At that point, we will be able to advise the Committee in considerable detail on the proposed grant agreements with each of the organisations, including the level of funding and the detailed activities that those grants will support.

397. The Committee may find it useful to receive the details of the commissioning brief that we gave to the organisations to inform the development of their business cases, which lists the functions in the paper that we asked them to consider. I emphasise that that is the long list — not all organisations will want to engage in all the activities outlined in the paper. The potential functions are grouped under five headings.

398. The first group comes under the heading of ethos and identity, and the type of functions that we are prepared to support include: the fostering and development of the collective ethos of schools in a sector; the identification of potential foundation or community governors to serve on school boards; and the offering of advice to the ESA on the ethos and content of support and training programmes that have been provided for boards of governors.

399. The second group of functions comes under the heading of employment. The paper describes the centrality of schemes of management and schemes of employment in the legislation, which will set out, respectively, the governance arrangements for schools and the role of boards of governors in employment matters. In the paper we describe the role of the “submitting authority" in those schemes, including a potential change to the legislation that we are minded to introduce, subject to the Committee’s views.

400. In that context, the role of a sectoral body might include: the preparation of draft schemes of management and employment on behalf of submitting authorities; providing responses to any consultation by the ESA or the Department on guidance that governs the preparation of those schemes; providing assistance to trustees or owners of schools in the discharge of their role in the preparation and submission of schemes, and general liaison with the Department and the ESA on that matter.

401. The next group of functions comes under the heading of ownership, planning and procurement. The functions that we could consider are: advising trustees or owners of schools on their roles; and participating in the area-based planning arrangement that the ESA will operate, which might include assessing provision in a sector, future need, consultation with parents and communities, development and advancement of options and proposals. It is important to emphasise that we are talking about a single planning process that the ESA will operate, to which sectoral organisation will provide input — we are not talking about separate planning processes in each sector.

402. We have also stated that we will support sectoral bodies to enable owners or trustees to discharge their role in procurement arrangements. Again, those procurement arrangements will be operated by the ESA. That will provide the link between owners and the ESA. The last function under that heading is to engage with any other statutory planning processes that exist or come into being, particularly the community planning process that district councils will lead.

403. The fourth group of functions comes under the more general heading of representation and advocacy and includes liaising with schools in a particular sector; liaising with, and offering advice to, the ESA, the Department and our colleagues in the Department for Employment and Learning, including, through participation in the education advisory forum when it is established; engaging with other education sectoral interests or stakeholders; and responding to any policy consultation processes that the Department may initiate.

404. The final group of functions comes under standards and performance. I emphasise that there will be only one statutory authority with legal responsibilities for raising standards — the ESA. However, we recognise that a strength of the present arrangements is the interest that sectors and sectoral bodies take in the performance of their schools. In that context, we see the role of sectoral organisations as including: promoting high-quality education; advising and supporting owners or trustees of schools on strategic issues on performance as they arise; advising owners or trustees of schools on data, reports or information that they may receive on the performance of schools in their sector; offering advice and support to owners or trustees when consulted by the ESA on the discharge of its functions; and liaising generally with the ESA on matters related to the performance of schools in the sector.

405. That is the long list of functions in which we see a sectoral body being potentially involved. We have received business cases from the existing organisations and from the Catholic trustees on that issue.

406. The controlled sector requires slightly different treatment because the starting point is different and is, in some ways, more difficult than for the other sectors. No existing organisation is well placed to take on the sort of role that we have outlined. It must also be acknowledged that there is no real tradition in that sector of those sorts of functions or that type of interest being taken on behalf of schools.

407. We must also recognise that the controlled sector is large and serves diverse communities across Northern Ireland. The starting point is different, but we are clear that, on the basis of equality, the end point must be same for that sector as it is for all other sectors and that the timescale must be the same. By 1 January 2010, those schools must have effective sectoral representation and advocacy, and in doing so it is important that we ensure that there is a strong sense of ownership across that sector. The sector must have trust and confidence in the arrangements that are established; the arrangements cannot simply be parachuted in by the Department.

408. Therefore we have proposed the first steps of a way forward on which we welcome the views of the Committee. As a first step, we suggest the establishment of a small working group to act as interim advocates or champions for the controlled sector. That group will be charged with developing more detailed proposals for the more substantive arrangements that will be put in place. In the interests of effectiveness, we have suggested that that group should be relatively small, perhaps comprising between six and eight members. That group should include education professionals; the Transferor Representatives’ Council (TRC) would also have an important role to play.

409. In addition, an important element of the group will be representatives from the communities that are served by the controlled schools. The representatives would have a good understanding of their communities, particularly communities that face the greatest education challenges and in which the socio-economic challenges are considerable. The representatives would understand the service that education can provide and the contribution that it can make to their communities.

410. The group should be asked to undertake a short, focused exercise with the terms of reference that we have set out in the paper; it should be asked to report as quickly as possible to the Department and, through us, to the Committee. The Department will, of course, be prepared to provide support for that group, including a secretariat. I am happy to take questions from members.

411. The Chairperson: Members will wish to tease out many issues during this section. You referred to “modest" funding. You said that a sectoral body will be established for the controlled sector and that it will have a different starting point because it is a completely new organisation. Given that you referred to equality of treatment across those bodies, how will you ensure that the deficit in the controlled sector — because there is no sectoral body — will be adequately filled?

412. The deficit in the controlled sector must be given particular attention and assistance because of its diversity. The controlled sector includes controlled grammar schools, which cover a wide diversity. Can we be assured that objections will not be raised on the basis of equality? There is a disparity, and that inequality must be addressed first. All the sectoral organisations should not be lumped together and treated in the same way because that will cause one sector to lag behind.

413. Mr Stewart: That is correct. We have to address the issue that the controlled sector is lagging behind. It is difficult to comment on what the precise outcome will be, because we do not have a draft business case for the controlled sector. However, I assure you that the Department will work with the interim champions — if we can establish them — to introduce as quickly as possible a business case that is fit for purpose and that will lead to a level of grant that will allow the controlled sector representative body to discharge as many as possible of the functions that we have outlined.

414. The structure and funding for the representative body that is established for the controlled sector will have to reflect the sector’s diversity; it must be fit for purpose and must be capable of discharging its functions.

415. I assure you that even though it is starting behind other sectors, we will not leave it there. There is no question of our sorting out all the other sectors and merely seeing what is left for the controlled sector; the equality principle will be central. The controlled sector must be able to operate on the same basis as the other sectors.

416. The Chairperson: You mentioned the possibility that the TRC could be included in that. Given that the TRC’s representative constituency has changed in the years since it was brought into existence and that the Churches handed over their schools to the Government, how will equality be assured for denominations that are not covered by the TRC? Those denominations have increased in number over the past 30 or 40 years. How can we ensure that they will be adequately represented? Is that discussion ongoing with the TRC?

417. Mr Stewart: Yes, Chairman, to all those questions. This afternoon, the discussion will continue when I meet the TRC to discuss those and other points.

418. The TRC recognises that although it is a voice for the controlled sector, it is not that sector’s only voice; it would be the first to acknowledge that other denominations’ interests must be reflected. The interests of the increasingly diverse communities — ethic minority groups, for example — that are served by those schools must be recognised and considered carefully.

419. The Department’s challenge is to ensure that it recognises that, in putting together the interim champions and the more substantive organisation in due course, it can speak on behalf of all the schools in the sector and all the communities that they serve.

420. The Chairperson: I will open up the discussion, and if my questions are not covered during the discussion, I will come back to them.

421. Mr D Bradley: What protections does the Bill afford to the Catholic ethos?

422. Mr Stewart: It is the Department’s contention that the Bill offers protections to the ethos of any sector and, indeed, to any school. The Bill does not seek to challenge or interfere in any way with the ethos of any school or type of school.

423. Earlier, I referred to the provisions on the role of submitting authorities and the submitting of draft schemes of employment and draft schemes of management. The change that we are minded to suggest is to define the submitting authority of every school as the owners or trustees of that school, while recognising that, in some cases, the board of governors owns the school.

424. That is to allow the owners or trustees of every school to ensure that its ethos is lawfully and properly reflected in a school’s governance and employment arrangements. We proposed that change because we believe that we did not get the legislation entirely right in that respect. We want to ensure that there is consistency across all sectors and all types of schools.

425. Mr D Bradley: The ethos of an Irish-medium school, for example, is not necessarily protected under the Bill, as a board of governors could un-designate an Irish-medium school. Is that correct?

426. Mr Stewart: I believe that that is correct.

427. Mr D Bradley: Where, then, is the protection of the Irish-medium ethos in the Bill? Could a Catholic school do the same?

428. Mr Stewart: I do not wish to avoid your question, but I am not sure from what we would be protecting the ethos. If a school’s board of governors — presumably reflecting the wishes of the community that it serves — decided for some reason that it ought to become a different type of school, I am not certain from whom we would be protecting it.

429. Mr D Bradley: Would a maintained school be able to do the same thing?

430. Mr Stewart: Yes.

431. Mr D Bradley: Could a Catholic school become a school other than a Catholic school if it so wished? Could the board of governors decide that?

432. Mr Stewart: Yes, although there is a caveat: the ethos of a school is not prescribed in legislation, and neither would the Department seek to control or direct it in any way. The important caveat relates to a question that Nelson asked several meetings ago and to which I still owe him an answer. He asked whether it would be possible for an integrated school to “reverse-transform" or transform into a different type of school, and we agreed to check the legislation to find out. It is not possible in a straightforward way. In fact, the legislation specifically rules out either a controlled integrated school or a grant-maintained integrated school transforming into a different type of school. A further caveat is that the only means of achieving it in practice is for a school to close and reopen as a different type of school. Forgive me if that is a rather long, technical and involved answer.

433. Mr McCausland: It is a very interesting answer.

434. The Chairperson: Could it technically close and reopen?

435. Mr Stewart: Yes, as a different type of school.

436. Mr D Bradley: Would the trustees of maintained schools rather than the board of governors not have to change a school’s ethos?

437. Mr Stewart: Yes. The commonality or the consistency across all schools and sectors is that it is the owners or trustees who determine ethos. In the case of Irish-medium schools the owners are the board of governors, and in that regard there is consistency between the two sectors.

438. Mr D Bradley: Therefore there is a different system of management or ownership?

439. Mr Stewart: There are certainly differences in ownership.

440. Mr D Bradley: Is that why those differences are emerging in the Bill?

441. Mr Stewart: No, quite the opposite; we want to ensure that the effect of the legislation is the same, regardless of any differences in ownership. Part of the central thrust of the RPA is that there are differences in everything from governance arrangements, structures of boards of governors through to finance arrangements, which simply reflect historical differences and ownership. It will require the two RPA Bills to achieve that fully. However, we want, as far as possible, to enable any grant-aided school to enjoy the same relationship with the ESA and be part of the same administrative arrangements as any other type of school. The owners or trustees of a school can determine its ethos, but that will have no bearing on the administrative arrangements.

442. Mr O’Dowd: The scenarios that Dominic outlined can happen now; in a sense, the Education Bill does not change anything.

443. Mr Stewart: That is the case.

444. Mr O’Dowd: My question is about sectoral support, particularly for the controlled sector, and I will touch on the Chairperson’s comments. There is some validity in the argument that a sector starting from a standstill position may be disadvantaged; therefore it might need some further departmental or financial support. The Committee would have a role in any evidence-based argument that is developed along those lines.

445. Will the finances and role of sectors collectively be subject to review? As the ESA develops, will the role of the sectors come together without the loss of ethos or identity about which Dominic expressed concerns? Does the ESA plan hold out that hope?

446. Mr Stewart: Yes, very much so. The business cases that we are scrutinising aim at arriving at grant agreements with each sector. Normally, grant agreements would last for no more than three years. That strikes the right balance between allowing an organisation a reasonably stable base on which to plan, but it also recognises the need to review continually such arrangements to ensure that they continue to be necessary and that they represent and provide value for money for the public purse. That is what we expect to happen.

447. Over time, we envisage that the role of the sectors will evolve. However, we do not foresee a time when the diversity, ethos, character or identity of any type of school or sector will be reduced, and it is not our intention that that will happen. However, the thrust of the RPA is the need for a consistent, equality-based approach that recognises that education is a publicly funded public service from which children and young people in any community are entitled to receive the same provision. We expect and require sectors to operate in the spirit of co-operation more than they have in the past, when they were separate and, at times, antagonistic and adversarial — particularly in the planning of the schools estate and the delivery of the curriculum.

448. There is no room for sectors to pursue their own agendas in a modern education service. We must proceed on the basis of co-operation.

449. Mr McGrath: The Department will support the sectoral arrangements for three years, at least; however, the present division of schools into different sectors might begin to break down. The Chairperson referred to controlled grammar schools; perhaps they might see themselves as having more in common with voluntary grammar schools. The way in which the pie chart is divided at present may change; there may well be less differentiation. For instance, the sector-support bodies might decide that they want to migrate to a different place, because the situation might change. If that happened, we will respond to it, but we will not be driving any changes.

450. Mr Stewart: We do not want to engineer change, but, as John said, we will respond to it. That is already happening. In your papers you will have seen the proposal for a single body representing all Catholic schools. The senior trustees want a more coherent Catholic education sector in which the Catholic maintained schools and Catholic voluntary grammar schools come together closely and co-operate as a single, more coherent Catholic-managed sector.

451. Mr D Bradley: Why does the Bill contain a separate clause on Catholic maintained schools and not for other sectors?

452. Mr Stewart: There is a range of definitions of school types. A definition of Catholic maintained schools is provided in the Education Bill because at present it sits in the midst of the provision that established the Council for Catholic Maintained Schools (CCMS). That provision is being repealed because that organisation is being dissolved. Therefore, rather than leave one subsection in splendid isolation in a long provision, we will repeal the whole clause but, for the time being, leave the small part of it that is required — the provision on the definition of Catholic maintained schools.

453. The other definitions are less affected by the legislation, so they can remain in the existing Orders. However, the Committee will see that our aim in the second Bill is to reduce the number of definitions and separate school types. The only reason for having a definition of Catholic maintained schools was to identify the block of schools for which CCMS is responsible.

454. When the ESA is the only statutory authority for all schools, there will be no need to separate Catholic maintained schools from other maintained schools. It will be relatively easy to make that change in the second Bill, and, in time, the second Bill will contain a provision to remove the definition of Catholic maintained schools.

455. Mr D Bradley: Is that why it says that Catholic maintained schools are designated under a scheme “for the time being".

456. Mr Stewart: That is correct. It is a curious provision in many ways. It means that a Catholic maintained school is a school on the list of Catholic maintained schools. That is the most circular definition that I have seen in legislation; it is a technical hangover from the present legislation, and it will be taken out in the second Bill.

457. The Chairperson: I do not want to go off the subject, but there has always been an issue about controlled grammars — and they have been mentioned already. They are different from voluntary grammars in that controlled grammars are under the jurisdiction of the education and library boards.

458. In respect of function, is that the only difference?

459. Mr McGrath: In the round, yes; therefore, in future, language will be needed that does not state that it is a controlled sector support group, because the schools will no longer be controlled.

460. The Chairperson: Will that create almost the same situation as that which currently exists in the maintained sector?

461. Mr McGrath: We must think about our language around that situation. I would welcome suggestions that are better than “ex-controlled". When the schools come out of the jurisdiction of the education and library boards, there will be fundamental differences. Many schools have aspirations of autonomy, which we talked about last week. In the future, they may want to see themselves in a broad voluntary grammar sector, rather than in an ex-controlled one. The boundaries between those sectors may move in the future. In a sense, we would want that, because sector support arrangements should not act as a barrier to schools that seek more autonomy.

462. Mr Stewart: That is correct; indeed, nor should those arrangements determine the outcome. John O’Dowd raised the issue of the future of sectors. Although we do not intend to reduce sectors, we note that they may change by themselves, and we do not want the autonomy of schools to be determined by anything other than the capability of the school and its wish to have autonomy. That should not be determined by historical accident, resulting from the fact that the school happens to find itself in a particular sector. We want policy to go in that direction, and the Department does not regard that as being incompatible with the existence of sectors, or with the champion or advocacy role that those sectors may have.

463. Mr Lunn: The Department’s paper to the Committee on the functions of sectoral bodies states that their roles will be allowed to “prepare", “respond", “assist", “advise", “assess" “liaise", “engage" and “advocate". It does not state that one of their roles will be to “decide". May I take it that no decision-making powers whatsoever will be left to the sectoral organisations?

464. Mr McGrath: They can decide how they run their own business, but they are not statutory organisations. One model that is used in many other sectors is that voluntary bodies perform an advocacy role in the discharge of tasks. Age Concern is one example of that.

465. The Department is very clear that ESA will have the statutory role. That is the function that it is funded to perform. Accountability for raising standards, for example, must not be blurred by involving too many organisations. Clearly, the sectoral bodies will be non-statutory organisations, which the Department will fund to carry out a range of functions of the nature that are described in our paper. The Department will fund them for what they must do, but no more than that. That is a difficult area.

466. To pick up on the Chairperson’s point, equality is an issue in the controlled sector. However, the Department is focusing on equality in respect of the support that we give the sector. We will not take a mechanistic, “count the money in" approach, because there is no value in fostering an ex-controlled sector support body if it cannot do its job. That will not serve us in any way.

467. Mr Stewart: I have an example of school improvement that may illustrate that point. As John McGrath said, the statutory authority with responsibility for action will be ESA. However, if a performance issue arose in the controlled sector, one might expect the controlled-sector champion — its representation and advocacy body — to closely scrutinise and, if necessary, to challenge ESA. As a body that understands the schools it is serving, it might ask ESA: what is it doing to raise standards in controlled schools; what work is it doing with controlled schools; does it understand the ethos of controlled schools and the communities they serve?

468. The contribution that the controlled-sector body might make is just that — one of challenge, liaison, and of examining whether there is a sectoral ethos. However, the professional, technical, formal, legal and statutory roles are all with ESA.

469. Mr Lunn: Your presentation says that the role of sectoral organisations in the area-based planning process will be brought to the Committee in a few weeks’ time. Even at this stage, can we assume that the roles of those sectoral organisations will be reduced to the provision of advice and advocacy? Is there any possibility that they might be left with some decision-making power?

470. Mr Stewart: No. The ESA will operate a single planning process. The role of any sectoral organisation is to provide input into that process, not to decide anything.

471. The Chairperson: Will that also include development proposals?

472. Mr Stewart: Yes. In due course, we still see the legislation focusing on development proposals. At present, a development proposal can come from any source. In future, the key difference will be that, in deciding whether a development proposal should go forward, it will be scrutinised with due regard to the area plan that is in force at the time. By and large, if a development proposal does not accord with the area plan, it is unlikely to go forward. If it does accord with the area plan and has been brought forward in order to deliver the area plan, then it is likely to go forward.

473. The Chairperson: Can the sectoral bodies produce development proposals?

474. Mr Stewart: They can produce development proposals, but if a sectoral body, or, indeed, any other interest, produces a development proposal in defiance, if you like, of an area plan, it is unlikely to get very far.

475. Mr McCausland: I want to pick up on two issues, on which, in a sense, Dominic touched earlier. The first is about equality, and the other is to do with ethos. Some time ago, the Committee asked the Minister to provide information on the range of issues in the education system in which structural or other inequalities had been identified. That request has not been answered yet.

476. The Chairperson: Several issues were highlighted in that correspondence.

477. Mr McCausland: Yet we are always being told that inequality is one of the issues that must be addressed. We do not have a list of those inequalities, or what they are in the Minister’s view. Mr Stewart mentioned another inequality — that a controlled school can change to an integrated school, but it cannot transfer back. That is clearly inequitable.

478. Mr Stewart: I note your view on that.

479. Mr McCausland: Is it inequitable?

480. Mr Stewart: That is an issue of policy. I note your view on that.

481. Mr McCausland: Whether that inequality exists is a matter of policy. Whether it is an inequality is not a matter of policy; it is a matter of fact. Is it an inequality or not?

482. Mr Stewart: I contend that it is a matter of policy. It is for the Minister of the day or the Administration of the day to determine policy. The current policy is that legislation does not require a route to transform from integrated status to another type of school.

483. Mr McCausland: It is not permitted. There are many things that were not permitted in the past but are now permitted because of equality arguments. We are back to the question of whether the Department has considered, or intends to consider, the equality implications and other implications of such a course of action.

484. Mr Stewart: The Department has not considered such an option. The issue was not raised until you asked the question.

485. Mr McCausland: Now that it is on the radar —

486. Mr Stewart: Now that it is on the radar, I will, of course, convey your view to the Minister that it constitutes an inequality. I have no doubt that the Minister will consider that.

487. Mr McCausland: I will park the other equality issue. You say in your paper that:

“It will be important to ensure that sectoral support arrangements treat all sectors on an equitable basis."

488. Is that the same as saying — I contend that it is not — that all children will be treated on an equitable basis?

489. Mr McGrath: It is a different paradigm.

490. Mr McCausland: Will you be able to ensure that the new structure will treat all children equally? Will that be checked by way of an equality impact assessment (EQIA)?

491. Mr McGrath: The Minister has made it clear that her priority is to raise standards and to ensure that each child who goes into the education system has the maximum opportunity to fulfil his or her potential. Therefore, we focus on equality of outcome. If we focus on equality of inputs, we are missing the fact that there is a gross disparity in outcomes. The Minister is very clear about that. In a sense, sectoral support is a different frame of reference.

492. Mr McCausland: A policy decision is being made to create a new structure. Has an EQIA been conducted to test whether that structure will treat all children equally, or will it impact on some children differently than on others?

493. Mr Stewart: Equality impact screening has been applied, and consideration has been given, to the review of public administration programme in general, and to the first Bill in particular. I am aware that the Committee has been waiting for the results of that exercise for quite some time, but, although the results have yet to hit the streets, we expect them to come out within the next week or two. We concluded that, subject to consultation, ESA will treat all children equally.

494. The obvious answer is that the new arrangements will be based on equality. As a public authority, ESA will be subject to the statutory duties that are contained in section 75 of the Northern Ireland Act 1998. I suspect that that is not the answer that you are looking for, or perhaps you are attempting to make a different point

495. Mr McCausland: We have already talked about the integrated/controlled issue, from which inequalities emerged that had not previously been picked up. Such things can happen, so it is important that all arrangements are checked.

496. Dominic Bradley mentioned the religious and cultural ethos in Catholic-maintained and Irish-medium schools. Who will determine the cultural and religious ethos of controlled schools?

497. Mr Stewart: An ethos will evolve and emerge from individual schools and from the sector, and a test of the effectiveness of the central body will be the extent to which it can articulate an ethos. Perhaps a multi-dimensional ethos will be required to cover such a diverse range of schools and communities. However, one cannot define, or prescribe, an ethos. The Department made a heroic attempt at doing so in an earlier policy paper, and, as a result, we managed to unite all education stakeholders in the view that we had got it entirely wrong. At that point, we recognised that any attempt on our part to define ethos is doomed to failure. An ethos comes from schools and sectors; it is not in the Department’s gift to define or create it.

498. Mr McCausland: My point is that the focus for those matters is very much on sectors; whereas, I think that it should be on the rights of individual children. Therefore, it is important that the cultural and religious rights of the child are reflected and accommodated in whatever system emerges. Britain has signed up to international commitments in that regard that are only being partially implemented in the controlled sector; whereas, those commitments are being fully implemented in the Catholic-maintained and Irish-medium sectors. There is now an opportunity to address that matter, and, if the sectoral body has a role to play in that process, it is important that it properly reflects the ethos of the community that it serves. I am sure that we will return to that point.

499. Mr Stewart: You are entirely right. Many people associate most schools in the controlled sector with a broadly Christian ethos because they serve predominately Protestant communities, and they associate schools, or parts of schools, in that sector predominantly with a Protestant Christian ethos. However, every grant-aided school must be open to children from any religious denomination or none.

500. Therefore, we will expect the sectoral body to recognise that the controlled-sector’s ethos — perhaps more than any other — must be multi-dimensional, reflecting different faiths, denominations, community backgrounds, and minority and ethnic interests. We would take a dim view of the sectoral body if it were not to recognise that when trying to advocate the ethos of the sector, if it were to attempt to do so.

501. Mr McCausland: Is it accepted that every child has the right to an education in which he or she is taught about, and given respect for, the culture and the ethos of the home from which he or she comes?

502. Mr Stewart: We are not proposing any change to the legislation in that regard.

503. Mr McCausland: There is no legislation in that regard.

504. Mr Stewart: There are references in early articles of the Education and Libraries (Northern Ireland) Order 1986. I cannot recite the full detail to you, but there are duties on us and on education authorities to respect parental wishes regarding the education that is delivered for children.

505. Mr McCausland: It needs to be taken a lot further if it is to meet international obligations. How does the current legislation meet the obligations of the UN Convention on the Rights of the Child?

506. Mr Stewart: Will you draw out that question a little further?

507. Mr McCausland: The UN Convention on the Rights of the Child states the point that I have just made, which is that every child has the right to an education. That education should encourage respect for, and knowledge and awareness of, culture in the broadest sense, of the community from which he or she comes.

508. Mr Stewart: The UK does not have any specific legislative provisions to give effect to the UN Convention on the Rights of the Child, because, unlike the European Convention on Human Rights, it has never been directly incorporated in domestic legislation. Our contention is that our body of education legislation, and the education system that is put in place thereby, give effect to those things.

509. If the view is that the legislation somehow falls short in relation to any of those dimensions, we would want to look at that, because, although the convention has not been incorporated, it is, nevertheless, an obligation that applies to the state, and we would want to ensure that that is delivered.

510. Mr McCausland: I am merely saying that it happens in Irish-medium schools. They have a clear cultural dimension, and CCMS schools have a clear religious ethos to them. However, that does not necessarily happen in all controlled schools. We have an opportunity now to deal with the issue, while we are reshaping the system.

511. Mr Stewart: We welcome the opportunity to explore that issue and tease it out a little further. We recognise, as I think you have done, that the multi-dimensional nature of the controlled sector presents a particular challenge in that regard.

512. Mr McCausland: The point that I am making is that it is down to the children who attend a particular school. Therefore, the ethos of a school in one town may be different to the ethos of a school in another town, depending on the children who go to it.

513. Mr Stewart: That is true of all sectors, but, on several occasions, I have heard trustees of Catholic schools acknowledging that very fact. A central thread of Catholic education and ethos runs through the sector. However, there are perceived differences in ethos in individual Catholic schools, for the very reasons that you have given.

514. Miss McIlveen: We have to recognise that we probably operate in an ‘Animal Farm’ view of equality, in which all animals are created equally, and some are created more equally than others.

515. I welcome Mr O’Dowd’s comments, because he recognised that there may be a deficit in relation to representation of the controlled sector. However, I am concerned that he is looking for an evidence-based argument when the evidence is quite clear that there is nothing, and we are starting from nothing.

516. Following some of the comments that you made in response to the Chairperson, it appears that a can of worms may be opening up regarding who will sit on the group that will be created for the former controlled sector. I will return to a comment that I made last week about the ESA board. Will members of that group be chosen by simply being tapped on the shoulder, or will they have to apply for the positions? How will that process work?

517. Mr McGrath: The paper highlights the fact that it is not for the Department to create the sectoral support body for the former controlled sector, because it is not a statutory body. It is an advocacy body, but it will not be our body. Therefore, we want to foster that by getting a group of people who will be connected in that sector to begin to do some of the legwork, because it is not our job. We will do our utmost to help to create the body.

518. The deficit was mentioned, but I wish to make it clear that we will support that work by finding the secretariat. Who the initial key players will be is open for discussion, and that is why we brought the matter to the Committee. In fact, it may be a matter of persuading some people to give their time and effort in certain communities outside the normal TRC and other denominations. Indeed, it will be a broader church than that.

519. We need to identify people who have some understanding of the issues — particularly those of underachievement — and who want to make a contribution. If those elements of straw form enough of a brick that those people want to constitute themselves into an organisation with the appropriate governance structure and the right legal statutes to produce a business case for us, that is where we want to go.

520. We will not appoint people; it is not our right to do so. The group will not be a statutory organisation, and it should not be beholden to the Department. It should be as independent as the other sectoral support bodies; otherwise, the general deficit that currently exists in the controlled sector will continue.

521. Miss McIlveen: Who, other than the TRC, have you spoken to about that?

522. Mr Stewart: We have spoken to individuals in education and library boards and with the TRC, whom I am meeting again this afternoon. We have not gone particularly far beyond doing that. We would welcome suggestions from the Committee as to how we might gather the voices or identify those who might play a role in such a facility. It is difficult, but as John has said, we have to start somewhere.

523. The arrangements that we have set out regarding ESA members and the ESA board are clearly appropriate. ESA will be a statutory organisation to which public appointments will be made. There are clear procedures to follow. The sectoral support body for the former controlled sector will not be a statutory organisation, and public appointments will not be made to it. Its make-up will be defined on the basis of personal contact, persuasion and seeking views and input on an informal basis. If that is characterised as a tap on the shoulder, then yes, it is a tap on the shoulder at this stage.

524. Miss McIlveen: Has anyone indicated that they may be interested in getting involved in that group?

525. Mr Stewart: No, I am not aware of any specific approaches that have been made.

526. Mr McCausland: Is it basically a self-selecting group?

527. Mr McGrath: No, it is not a self-selecting group.

528. Mr McCausland: Whoever turns up at the first meeting —

529. Mr Stewart: Tell us which shoulders to tap.

530. Mr McGrath: In the other sectors, there are pre-determined groups or embryonic organisations that have a link and a broad sense of ownership. That does not exist at all in the controlled sector, which is quite diverse. Collectively, everyone interested in this — including Committee members — has to ensure that enough people are interested so that they can take up the mantle themselves.

531. The group may eventually be constituted as a charitable trust or a company limited by guarantee, but it will not have ministerial appointments. Its members will not be beholden to the Department, because that would put them in a different position. They will have to be as independent as members of the other sectoral support bodies, otherwise there would be inequalities.

532. We have made clear in this and in other settings that as much assistance as possible must come into that process, because it will be a matter of trying to identify the people who can give it enough momentum at the start. That does not necessarily mean that those are the people who would constitute the body in due course. It is very difficult. We have spoken about the TRC and about other denominations. Across the region, the body needs to serve a number of very diverse communities, both urban and rural. It must consider secondary schools and grammar schools and the aspirations of different schools, and that is a major challenge.

533. Mr Stewart: If we were to conclude that we must not tap any shoulders anywhere, the alternative would be that we would simply sit in the Department and wait for the appointments to be made. If they were made at all, it would take a long time. Rival approaches might come forward or rival bids might be placed in order to establish a sectoral organisation. We could allow some of those to succeed and some to fail, and perhaps, in due course, we might end up with something that is effective.

534. Given what the Committee has rightly said about the need not to let the controlled sector get left behind, we do not feel that we can do that. Although the process may be inelegant and cumbersome, we have to use it to try to hothouse the development of the body without making it an artificial construct of the Department in which people in the sector would simply have no trust or confidence. The starting point is that, yes, we have to tap a few shoulders.

535. Miss McIlveen: Do you have any idea of when the process will start?

536. Mr Stewart: It will start as soon as possible, and within weeks.

537. Miss McIlveen: The other sectors have already put forward a business case. Have you had specific discussions with those sectors about that?

538. Mr Stewart: Yes, and those discussions are ongoing.

539. Miss McIlveen: So you have had meetings with the other sectors?

540. Mr Stewart: Yes.

541. Miss McIlveen: Nelson, did you ask a question earlier in relation to sectors?

542. Mr McCausland: We were told that they were not meeting with sectors.

543. Mr McGrath: No, we have been discussing with the sectors. We said that the education and skills authority implementation team (ESAIT) has not been meeting with sectors.

544. Mr Stewart: Given the role that the organisations will have in liaising with, and perhaps occasionally challenging, ESAIT, it is very important that the sectoral support organisations are not funded from ESAIT. They will be funded by the Department, and that is to ensure that no conflict of interest in the relationships would exist.

545. The Chairperson: Let us draw a distinction here, in case there is a slight confusion. We are talking about the sectoral body, but the paper has talked about the establishment of a working group. Who has been tapped on the shoulder for that? That is; who is taking responsibility for it? There is nobody.

546. Mr Stewart: No one has yet been tapped on the shoulder.

547. Mr McGrath: It is in everyone’s interest that we make some progress on this affair — that is why the paper states that we would welcome the Committee’s views on it and on the proposals. We would like to provide some secretariat support for the process, with others taking the lead in identifying people who could become part of the working group. Time is pressing, and it will take some time to establish that working group, have some discussion, gel it together, create a constitution and articles of association for a new organisation, and do a business case. No one has been tapped on the shoulder.

548. I think that you would agree that having discussions with the TRC is a genuine, valid and appropriate action. However, when casting the net to include more than the usual suspects — if you will excuse the phrase — it would be important to capture the diversity of communities that are currently served by controlled schools. In a sense, we are open to any proposals, suggestions and ideas, and we are happy to proceed with that on a clean sheet of paper.

549. Miss McIlveen: I know that, ideally, you want between six and eight members. However, when you start to drill down to identify the number of interested bodies, you could end up with 30 or 50 people in the room.

550. Mr McGrath: We are looking for a core group that will proceed with the work. However, you are quite right — I envisage that that will mean lots of people in the room on different occasions reflecting different interests. We will need to be quite careful when establishing how that is eventually distilled down to a sector support group, which will be a legal entity but which will cover many different constituencies. However, that is not beyond the wit of man.

551. Miss McIlveen: Will the Department provide a secretariat for that group?

552. Mr Stewart: Yes, we will. The group will start off with six people; however, as John said, we always envisaged that rippling out to larger gatherings very quickly. As regards the size of the eventual governance arrangements for the body, your guess is probably as good as ours. It is likely to be larger than between six and eight people, to reflect what is a large and diverse sector. We will provide a secretariat to that working group.

553. Following on from the point that John O’Dowd made, we recognise that the Department will have to continue to do a bit of hand holding and assisting to that organisation as it comes into being and gets up to speed in order to ensure that it is not left behind by any of the other sectoral organisations. We would not have any difficulty with doing that.

554. Mr D Bradley: Will the Transferors’ Representative Council have a guaranteed place as representatives of that sector?

555. Mr Stewart: It is not for us to guarantee any particular membership of the body, but, before we would agree to fund it, we would be looking for evidence that the body is genuinely representative of the controlled sector. I would be very surprised if such a body did not include the TRC but, as we said earlier in response to the Chairperson’s questions, not only be the TRC would be there. We expect other very significant and important voices to be there as well.

556. Mr B McCrea: It is quite interesting; I have got my head around where we are now. As I understand it, the Department did not really want sectoral bodies at all, so it is now prepared to provide them with a very modest amount of funding but no statutory basis and no real input. Presumably they will wither on the vine fairly shortly?

557. Mr Stewart: I am not certain that you will ever hear me describe the policy in those terms. It is not that we do not want sectors, because we recognise the reality that sectors exist. The education system is pluralist, and schools of a particular character and ethos come together to recognise a common identity and ethos.

558. Mr B McCrea: Could a school be a member of more than one sectoral body?

559. Mr Stewart: Yes.

560. Mr B McCrea: The situation is fairly bizarre in that the situation with sectoral bodies will be similar to Prince becoming known as the Artist Formerly Known as Prince. Controlled schools will become schools formerly known as controlled.

561. Mr Stewart: We will aim to have a better descriptor for those schools in due course.

562. Mr B McCrea: I am sure that I can rely on the creativity of the Civil Service to come up with a better name.

563. Mr Stewart: It has failed to come up with a better name so far, but we welcome suggestions.

564. Mr Storey: Made in Britain?

565. Mr B McCrea: I can see commonality among schools that operate in inner cities. Could there be a sectoral body that represents inner-city schools?

566. Mr Stewart: The short answer is yes. As John said earlier, we envisage that sectors will evolve. If, at some point in the future, a proposal were to come forward from a group of schools with something in common, and those schools were to make a business case that demonstrated that that would add educational value, we would accept that proposal.

567. Mr McGrath: We are starting by providing resources that will be used to support sectors in the school system. If morphing were to take place and subsets were to emerge, we would not continue to put more money in to the existing sectors without assessing the division; you would not expect us to do anything different. For example, if we were to fund a controlled-sector sectoral body from the start and then an inner-city-school sectoral body emerged, we would revisit the funding. We do not want duplicate funding.

568. Mr B McCrea: I understand your point, and I agree with morphing. I contend that the existing sectoral bodies will effectively be made redundant. What is the difference between a grammar school and any other school in a non-selective education system? There is no difference. What is the difference between grammar schools and schools in the controlled sector? The only difference was with certain control matters, but those too will now be changed.

569. There will be no difference between grammar schools and controlled-sector schools, because they will have the same level of governance and there will be no selectivity. Therefore, those existing sectoral bodies will effectively be done away with. I appreciate that it might be useful for common interests to be brought together in a single body, and I envisage that morphing will take place.

570. The real challenge is with the tension between the Department and some sectoral bodies. The Department wants to devolve autonomy to schools, provided that the schools want it and that they work within certain policy guidelines. However, some sectoral bodies will want stronger control in order to influence the development of schools in the sectors that they represent.

571. Mr McGrath: There could be tension in some cases.

572. Mr Stewart: There could be some tension, but I do not think that the contrast is as stark as you describe. We have been talking to the various sectors about that matter for some time, as the RPA policy emerged and developed. There is a high degree of agreement between the Department and the sectors that the main focus of each sector is to foster and maintain the ethos, identity and character of the schools that it represents. However, issues such as: the curriculum; the detail of employment arrangements; the handling and stewardship of financial matters; and ensuring that there is commonality of best human resources practice are not sectoral matters. They are matters of front-line support to schools, and that is the domain of the ESA.

573. Mr B McCrea: As I said, it has been helpful to listen to you, and I understand what you are saying, but I think that there will be tension from the sector that is formally known as the Catholic maintained sector, which has a strong position. I know that you could not possibly comment, but I would imagine that you would prefer to see a reduction of influence. There will be a problem in relation to that. I am in favour of around 80% of what you have proposed.

574. Mr Stewart: That is probably the highest score that you have given us yet.

575. Mr B McCrea: The problem involves two key areas. The first is the question of who decides the policy. You have told me today what I already knew: the Minister of the day — or the Administration of the day, but probably the Minister — will decide the policy. I have already expressed concern about any multi-faceted education system that does not appear to be inclusive. I have a problem with ESA because of the control that will be exercised over that body.

576. Secondly, who decides the area plan? Presumably, that is based on the policy decisions that are taken by the same Minister. Although I understand all of the operational issues and all of the issues that you have mentioned, ESA is fundamentally flawed at the policy input stage at the top. This is a diverse society with different requirements, and that is not reflected in the overall structure.

577. I do not see why the TRC should not have its own sectoral body. I know that you have said that it should be included with the sector formally known as the controlled sector, but why should it not have its own sectoral body? The TRC has a common ethos, and the only mistake that it made was that it, rather stupidly, gave away its schools at one stage. I understand your view on the issue of the exchange; you have a clearer understanding of our objections to the course being taken. I accept that it is not in your gift to change that, but at least you know what the problem is.

578. Mr McGrath: ESA is a much more modern and appropriate vehicle to implement policies that are set down by Government. Your issue is how the policies are set down by Government.

579. Mr B McCrea: I have no absolutely no disagreement with you on that.

580. Mr McGrath: We are talking now about the policies of the day, but we must design a system that is capable of discharging the policies in the future, whether that is in 10 or 15 years from now.

581. Mr B McCrea: The Ulster Unionist Party has never been against a more streamlined, coherent and consistent educational administration system. If we felt that ESA would provide that, we would have welcomed it. However, we have fundamental problems with who controls the area planning and who controls policy, because, in the wrong hands, the efficient and effective system that you have introduced is actually a Trojan Horse, which will be used to further legitimise political positions, but not necessarily my position.

582. The Chairperson: We have dealt with that issue. We will now move on to the issue of ESA as a single employing authority, which is exercising the minds of a considerable number of people and has raised concern. Members have the Department’s briefing, in which the issue of employment arrangements is covered.

583. Mr Stewart: We have provided two papers, both of which cover the range of issues that you asked us to address. You asked for some more detail on the employment arrangements, particularly on the respective roles of the ESA and boards of governors. You also asked for information on the review that the Minister announced on teacher employment opportunities, and we have covered that in a separate related paper.

584. With your approval, Chairperson, I shall deal with the employment arrangements first, and then move on to the review. The paper on employment arrangements addresses two themes: the first is the respective roles of boards of governors and the ESA; and the second is the concerns that have been expressed to the Committee and to the Department by the Governing Bodies Association about those employment arrangements.

585. By way of background and context, the paper summarises some of the key features of the current employment arrangements. The points to emphasise there are that 86% of schools are already involved in some form of collective employment arrangements, but the remaining 14% of schools currently employ staff directly. The role of boards of governors at present varies greatly.

586. For example, in Catholic maintained schools, the boards of governors determine all teaching appointments. In the controlled sector, by contrast, some of the senior appointments are determined not by boards of governors, but by the teaching appointments committee of the relevant education and library board. Those variations are historical. They are not based on evidence of the contribution of that sort of arrangement to effective education.

587. With that in mind, our aim is to achieve greater consistency and equality across the education system, with all schools being given the opportunity to run their own day-to-day employment affairs on the basis of their desire and ability to do so, rather than of their history of ownership or of the sector in which they happen to find themselves.

588. Turning to the key features of the new arrangements, it is proposed that all staff in all grant-aided schools will be employed by the ESA. That means that formally, for the purposes of education and employment law, the ESA will be the employer, and all contracts of employment will be between the ESA and the staff. However, the role of the boards of governors, as we have said, is to take the day-to-day decisions on the running of their schools, including on employment matters. In practice, that means that the relationship between the ESA and boards of governors will one in which the boards act on behalf of the ESA and discharge employment functions that are delegated to them by the ESA.

589. Those delegation arrangements, and the detailed role of individual boards of governors, will be set out in the schemes of employment. The provisions that cover those issues are contained in clauses 3 to 12 of the Education Bill. It is proposed that those schemes will be drawn up by the schools and approved by the ESA. It is for the schools, not the ESA, to decide on the level of delegation. Clearly, some schools will want to carry out the full range of employment functions and leave only a minimal role for the ESA. However, other schools, equally legitimately, may decide that they wish to leave certain functions in the hands of the ESA. Once again, the key point is that that is a decision for the schools.

590. Our paper attempts to illustrate that in a little more detail by setting out the respective roles of boards of governors and the ESA in relation to several areas of functions. Those are: determining the staff complement of the school; recruiting staff; managing staff, including any necessary disciplinary action; dismissing staff; and managing redundancy.

591. Taking recruitment as an example, members will see that almost the entire process, from end to end, will be in the hands of the boards of governors. The role of the ESA will be one of providing support and advice, ratification of procedures and the formal action to put into effect the decision of a board of governors, which, of course, in relation to recruitment, simply means issuing the contract of employment.

592. Members may wish to ask, in such arrangements, how we will ensure that the ESA and boards of governors stick to their respective roles and that they each respect the role of the other. The answer is that clear legal duties will be placed on both, which are covered in clause 8(1) and 8(2) of the Bill. The boards of governors will be under a legal duty to comply with their own procedures, and the ESA will be under a legal duty to give effect to decisions that are made by boards of governors.

593. The ESA will not be allowed to unreasonably interfere in the day-to-day affairs of schools. Its ratification role will be limited to ensuring that the correct procedures have been followed and that a decision of a board of governors is not manifestly unreasonable. If the ESA were to feel that something had been handled incorrectly, it would be able to refer a matter back to a board of governors to be revisited. However, there is no question of the ESA second-guessing a decision or substituting its own decision for that of a board of governors. In summary, the ESA will not lawfully be able to refuse to put into effect any proper decision of a board of governors.

594. The paper also attempts to anticipate some of the questions that Committee members may have. The first of those is that if the ESA is formally the employer in law, could it initiate action without waiting for a board of governors? The answer to that is yes, but only in very serious and extreme circumstances. Those functions will be delegated to a board of governors. Therefore, it will not be for the ESA to initiate action unless a board of governors cannot, or will not, discharge its responsibilities.

595. The second key question is where the legal liability for employment matters might rest if something were to go wrong. That question is normally put to me as “who gets sued?", and the answer is potentially everybody. If a complaint were made to a court or tribunal about an employment matter, those proceedings would be likely to include any body that has played a part in the matter that is the subject of the complaint. Therefore, in practice, if something were to go wrong, both the board of governors and the ESA would be likely to be involved in legal proceedings.

596. That is no different to the current collective employment arrangements, and it would not change the fact that liability for actions on boards of governors is collective; it is on the board of governors as an entity and not on individual governors.

597. That is a summary of the arrangements that the Department has proposed in the legislation. I can either pause at this point or move on to the concerns of the GBA.

598. The Chairperson: I think that we should deal with those concerns, because they are all related. Will you deal with those issues now? Members can then raise any questions that they might have.

599. Mr Stewart: The GBA, in commenting on those arrangements, has proposed two counter-arguments to the Department. First, it said that the arrangements would, in fact, constitute a loss of autonomy for the schools that it represents, and, secondly, it said that the arrangements would dilute or interfere with the important voluntary principle that exists in those schools.

600. On the issue of autonomy, the Department recognises that there is a genuine sense of loss on the part of the GBA. However, we question whether there is any real or practical loss of autonomy. That is because the boards of governors of those schools will remain responsible for the exercise of employment functions for those schools, and they will take employment decisions that the ESA will be under a legal duty to effect. As stated, the aim of the Department is not to reduce autonomy in employment matters, but to ensure that it is available to all schools on the basis of equality, rather than to some schools on the basis of historical differences in ownership.

601. In relation to the voluntary principle as described and set out by the GBA, the Department recognises that the voluntary principle embodies many good features. However, it is not convinced that those are unique to any one sector or type of school, or that it is incompatible with the employment arrangements that we propose.

602. To begin with, the term “voluntary school" is very broad. It includes schools that are employers in their own right — the voluntary grammar schools — and those that are part of collective employment arrangements, such as Catholic maintained schools. All of those are voluntary schools in law. All grant-aided schools have governors who discharge important and significant responsibilities in a voluntary capacity and all grant-aided schools, including voluntary grammar schools, are funded by the public purse to deliver a public service. They all do so on the basis of significant voluntary input from parents and communities.

603. Undoubtedly, many voluntary grammar schools are extremely successful, but the Department does not view that success as being limited to that sector, or, indeed, to any sector or school type. The most successful schools in any sector tend to be those that embody the voluntary principle; that is those that have a strong sense of belonging and being accountable to the pupils, the parents and the communities that they serve. The Department values the voluntary principle, but we do not accept that any strong case has been made for any particular group of grant-aided schools to have separate employment arrangements.

604. The Chairperson: Thank you. Obviously, that issue continues to be of concern. We want to reach a point where locally delegated autonomy is the reality, and, rather than its being a loss to some schools and a gain to others, every school will gain and will have the sense that they can make decisions. However, there is fear and concern that, somewhere among all of that, the voluntary principle and the schools that have exercised it will have a deficit, although other schools will consider it to be a great opportunity.

605. To return to the earlier discussion on equity and ensuring that everyone is treated fairly, one matter on which the Committee wants to be absolutely clear and sure is that delegated responsibility does what it says on the tin. We want to ensure that that is what schools get and that the way that they govern themselves will not be hampered or restricted.

606. Mr McGrath: Those are fair points. We do not want to do anything else. The general mood music that we are creating is about promoting autonomy for all schools. The extent to which they want to use it — for back up, and so on — is for them to decide. That is quite appropriate. We do not want to constrain any school.

607. The issues around the employing authority will, in fact, bring little difference for voluntary grammar schools. As Chris explained articulately, no particular sector has or should have a monopoly on voluntarism. In a sense, that is what we aim to promote. Earlier, you made an analogy about controlled grammar schools. There is no reason why a controlled grammar school should not aspire to the same status and want to be in the same area of the pitch as a voluntary grammar school. We are trying to reach a point where all schools can aspire to that standard. Therefore, it aims to bring standards level, not widen them.

608. Mr Stewart: We recognise the concerns that you have expressed. They have been put to us by the GBA. That is why we have attempted in the legislation to build in safeguards and to go as far as possible towards dealing with those concerns. That is the reason for those admittedly complex and somewhat unusual arrangements. The key is that the level of delegation and the role of the board of governors are in schools’ hands, not in ESA’s hands, in order to guard against the danger of undue interference by ESA. We are aware that that issue concerns our colleagues in the voluntary grammar sector.

609. It has also been recognised that, in developing those arrangements, a one-size-fits-all approach will not do. There will be schools, perhaps, in any sector, that will want to take on the maximum level of delegation and assume all of those functions. However, equally, there may be schools in any sector — particularly smaller ones — that might want to leave much of that in ESA’s hands. It will suit them simply to get on with the delivery of teaching and learning. That is an equally legitimate choice. Importantly, it is the choice of the school, not of ESA.

610. Mr O’Dowd: Some schools in the voluntary sector take me to the fair when they talk about their autonomy and their right to be voluntary. Although they want to spend tens of millions of pounds of taxpayers’ money, they do not want taxpayers’ representatives anywhere next or near them.

611. It has been the case previously in, for instance, the Catholic sector that a board of governors has set up an interview panel and gone through the paperwork. Does the CCMS ensure that the panel has been set up correctly and that the paperwork has been submitted? Does it ensure that all legal requirements have been fulfilled?

612. Mr Stewart: Yes.

613. Mr O’Dowd: Therefore, now that CCMS is going, will it be ESA’s function — if a board of governors decides — to ensure that the legalities of the interview panel, and so on, have been fulfilled?

614. Mr McGrath: As we said earlier, ESA would provide human resources support locally in order to help, for instance, to frame job descriptions, and, perhaps, to sit in interview rooms to ensure that due process is carried out. That is normal procedure in any public-sector body.

615. Mr Stewart: It is very much the call of the board of governors. If it happens to have among its members a human resources professional or someone from that background, it may need little help and support to operate recruitment procedures.

616. On the other hand, if it does not, it may decide that they want an HR professional from the ESA to sit with them at every stage of the process to ensure that they get it right. That is done as required and at the behest of the school.

617. Mr O’Dowd: Therefore the skills and knowledge base in a board of governors determines how much support it requires from the ESA. Given the nature of employment law, boards of governors would need to be on a pretty sure footing.

618. Mr McGrath: You are right — boards of governors will want to protect themselves. To be really sure, a board of governors would have to include a practitioner as opposed to someone who dabbled; however, it is the decision of individual boards of governors. The law of the land outlines requirements on fair employment, and every organisation wants to get its system right first time rather than have to be corrected.

619. Mr Stewart: That would be prudent. I have never been a school governor, but I have been a director of personnel. If I were a school governor, I would want an HR professional from the ESA beside me all the way.

620. Mr Poots: John’s initial comments explain a great deal. Given that he has been taken to the fair quite often, and CCMS has adopted the policy that he talked about for many years, it is no surprise that he is so critical of the voluntary sector.

621. When schools appoint head teachers, they must send three names to the education and library boards after they have completed their processes. Is that nonsense going to end? Often, a school identifies the best candidate and has to take part in a lottery and hope that the education and library board chooses the same person.

622. Mr McGrath: That will end. You are correct — that situation is complete nonsense.

623. Mr Stewart: Schools will send one name, and the ESA will issue the contract to that person.

624. Mr B McCrea: It strikes me that your issue is with the GBA because you have to reassure it that you will not take away its autonomy. If you can sort that out, the basic principles are fine.

625. Mr McGrath: We think so. In discussions about resources we have spoken about funding for classroom assistants in voluntary, grammar and grant-maintained integrated schools, because the pay award was for education and library boards, but it has not applied to those schools. The Minister has adopted the principle that those assistants are doing the same work as their counterparts in education and library board schools and, morally, should be paid the same rate. That almost reflects the spirit of a single employing authority and a single set of terms and conditions. If the GBA wanted to be different, one could argue that it should stay in a position where it pays its own rates. Therefore there is a contradiction between the arguments being put in the Committee for the workforce and the view that a different employing authority outside the system would lead to different terms and conditions. Otherwise what would be the point?

626. Mr B McCrea: The point is the perceived loss of autonomy. There is nothing more central to the ethos of a body than the staff that it recruits. We acknowledge where the problem lies, and we need to find a resolution.

627. John made sweeping statements about grammar schools —

628. Mr O’Dowd: I commented on some schools in the voluntary sector.

629. Mr B McCrea: We want schools to have governors who reflect their communities and who can select staff who are in keeping with the ethos of a school. That is one of the great strengths of the system that we want to maintain.

630. Mr O’Dowd: We want boards of governors to appoint staff who are qualified for the job and who passed an interview.

631. Mr B McCrea: There was a debate some time ago about whether we need to return to first principles. Do I need to premise my remarks with a statement that I support the Union?

632. The Chairperson: I remind Committee members that the meeting is being recorded by Hansard.

633. Mr B McCrea: I am trying to make the point that I am interested in identifying the areas in which we can move forward and those in which we cannot.

634. I support the general principle of helping schools to select teachers that they believe are in keeping with their ethos and of relieving them of the inconsistencies and burdens of associated legal matters. However, I am concerned that that principle could be perceived as a Trojan horse to allow the Administration of the day to dictate to schools whom they should employ or what they should do. We understand the issue and we must find a way of resolving it.

635. Mr McGrath: You said that there is a genuine perception that there has been a reduction in autonomy. As long as they stick to the general parameters of the law of the land and to their management scheme, there should be no less autonomy for a voluntary grammar school in appointing staff. As with all such matters, the difference between perception and reality is critical.

636. Mr B McCrea: John, I am in danger of being far too reasonable, but I agree with you.

637. Mr McGrath: Thank you. We should quit while we are ahead.

638. The Chairperson: Clause 8(3), “Effect of employment scheme", states:

“Where ESA is of the opinion that a decision of the Board of Governors on any matter which falls to be taken in accordance with such a scheme was taken otherwise than in accordance with the scheme,"

— And this is the important part:

“ESA may require the Board of Governors to reconsider that matter."

639. However, paragraph 11 of our briefing paper states that the ESA cannot lawfully refuse to put into effect any proper decision of a board of governors. Can you explain that contradiction?

640. Mr Stewart: There is no contradiction.

641. The Chairperson: It is good Civil Service speak.

642. Mr Stewart: It is a precise use of language.

643. Mr McGrath: It means that if the ESA has reason to believe, or there is evidence, that a decision has not been taken properly, it would have a duty to intervene. For example, if there was evidence of partiality or if something did not stack up, it would be appropriate for the ESA to intervene; that is entirely consistent with the provisions of the Bill and what is in the briefing paper. If proper decisions are taken in a proper manner, they will not be subject to second-guessing by the ESA.

644. Mr Stewart: Even if a board of governors were not to act properly, the ESA’s power to intervene is limited to asking it to repeat the process.

645. Mr D Bradley: On 2 May 2008, the Governing Bodies Association told the Committee that the freedom of individual schools to make local-level decisions in the interests of children will be severely constrained by the vast powers that are proposed for the ESA.

646. In addition, the association outlined four basic principles: voluntary schools’ ownership of buildings and properties; the right of boards of governors to govern schools; their right to employ and dismiss staff; their right to procure materials and equipment deemed necessary for the running of a school; and the right to determine a school’s ethos, character and activities.

647. Recently, the Committee received further correspondence from the GBA; it is still not convinced that the ESA will be a benign force in the operation of its schools. Therefore it appears that the Department of Education has yet to convince the GBA of the ESA’s benefits to its members or in general. What is your response to the points made by the GBA on 2 May 2008 and to its concerns?

648. Mr Stewart: Taking the GBA’s points seriatim, school ownership — the most straightforward one to deal with — will not change in any way. You are right that we have yet to convince its members that the arrangements will maintain boards of governors’ right to make decisions concerning the employment and dismissal of staff and everything in between. The ESA’s role will be to ratify proceedings and to do the paperwork. Forgive me, but I have forgotten the other two points.

649. Mr D Bradley: The procurement of equipment and materials necessary for the proper running of schools.

650. Mr Stewart: Procurement procedures will not change in response to the review of public administration; they will change in response to the requirements of public-procurement law, which is largely driven by EU legislation.

651. Nothing in the RPA will change that. Voluntary grammar schools will not be affected, and they will not be subject to any changes in procurement that any other publicly funded authority that delivers a public service will not also experience.

652. Mr D Bradley: My other point concerned a school’s right to determine its ethos, character and activities.

653. Mr Stewart: We have tried to ensure that ethos is properly reflected by building it into the arrangements concerning the role of the submitting authority and through the proposal that schools be responsible for developing schemes of employment and schemes of management. You are correct that we have not convinced schools. Perhaps our next move to attempt to convince them will be to say that we recognise that the GBA will want to see the detailed guidance on those schemes and what the model of the schemes might look like.

654. Perhaps the GBA could offer its suggestions for a model scheme to the Department. We would find it helpful if the GBA were to set down what it would expect from a scheme and the sorts of the protections that it would wish to underpin the role of its boards of governors. We are more than happy to continue to work with the GBA, as we are with any sector or group of schools, to ensure that we can put in place the safeguards for ethos, identity and character that it wants.

655. Mr D Bradley: The GBA also said that about 62% of the general education budget in Northern Ireland finds its way into schools whereas 80% of the education budget in England reaches schools. The GBA is of the view that it is unlikely that the establishment of the ESA will increase that figure to anywhere near the figure for England and Wales.

656. Mr McGrath: I am not sure that we agree with the figures of 62% and 80%; it depends on the currency that is used. More than 62% of the education budget is spent in the classroom, although the route by which it gets to the classroom is, in some cases, a bit more confusing. The ESA was aimed at making savings in administration, and, already, £20 million will be saved, predicated on the outline business case. We see that the ESA will make further savings, so there is a direct contradiction between the GBA’s view and the Department’s. Those savings are happening, because £20 million is predicated on the outline business case, and the budget settlement envisages that already.

657. Mr Stewart: The curriculum advice and support (CAS) service, for example, is staffed by capable and dedicated individuals who work extremely hard; nevertheless, some schools say that it does not deliver the services that they want. The CAS budget is between £30 million and £40 million a year. That is money that, at least in part, we need to move from the ESA into schools or into groups of schools.

658. In future, instead of CAS offering its services whether they are needed or not, scope must be left for schools, groups of schools or learning communities to come together to ask for some of that money to procure or deliver those services themselves. Schools or groups of schools may fund and take forward their professional development in a way that is specifically tailored to the needs at the point of development that those schools have reached. Instead of CAS being a one-size-fits-all service, a move could be made to a model in which schools commission, first and foremost, from the ESA but procure and provide professional development services themselves.

659. Mr D Bradley: The GBA might argue that the best that the ESA can offer is maximum supported autonomy. The GBA might say that since schools have that already, the ESA offers no advantage. It may ask why it should give up some of its functions when it does not gain anything from the ESA.

660. Mr Stewart: From time to time, the GBA articulates its argument in that way. The GBA does not always recognise that although it represents institutions that are privately owned, they are publicly funded and deliver a public service. When many of those institutions came into being — in some cases, hundreds of years ago — they were private institutions that delivered a private service. That is no longer the case, and they must recognise the need for equality and consistency across the delivery of the public education service.

661. Mr D Bradley: The GBA would argue that the Department has the right to send the Education and Training Inspectorate (ETI) into any of its schools at any time to carry out a full inspection. It would argue, therefore, that its schools are accountable to the Department and to the public.

662. Mr Stewart: They are accountable and amenable to ETI inspection, but there are other dimensions of accountability. They are accountable to staff across the education system; we are all accountable to staff and have a duty to staff to ensure equality, consistency and commonality of best practice in employment.

663. Mr D Bradley: Is there evidence that that is not the case at present in voluntary grammar schools?

664. Mr Stewart: There is some evidence of a lack of consistency and of an information deficit. Neither the Department nor the ESA, when it comes into being, could reassure the Committee that there is consistency because of the fragmented arrangements that we have.

665. Mr D Bradley: Are the discrepancies in equality not being addressed? Does the Department not have a right to ask voluntary grammar schools to address those discrepancies?

666. Mr Stewart: We have a right to ask them to address discrepancies, but we feel that there is a systematic issue that needs to be addressed. We need to move to effective, consistent, single-employer arrangements rather than those that obtain at present. That would be the best safeguard and the best means of addressing those issues.

667. Mr D Bradley: Are you saying that there is a lack of consistency in the arrangements for employment in voluntary schools and that that is leading to inequality for staff?

668. Mr Stewart: We have anecdotal evidence of an inconsistency of approach across education. We do not have enough information, so I cannot give you figures. I cannot give you specific examples because the current arrangements are not amenable to our having sufficient information even to know whether we have, or are moving towards, greater consistency or equality.

669. Mr D Bradley: Have you no means of getting that information?

670. Mr Stewart: Not at present.

671. Mr Lunn: Paragraph 13 deals with legal liabilities for employment matters. There seems to be some change in who is responsible or against whom action might be taken. I have read the paragraph half a dozen times and cannot get my head round it. Does it say that at the moment individual governors cannot be sued or that under the new arrangements they could not be sued individually?

672. Mr Stewart: Both; the position will not change. The liability for governors in employment matters is collective not individual. Therefore, if the decision of a board of governors is wrong according to employment law, the board of governors as an entity must answer for it. Any penalty is applied to the board of governors.

673. Mr Lunn: Therefore neither now nor in the future can individual governors be liable.

674. Mr Stewart: That is extremely important. We recognise that school governors undertake at present and in future very important tasks on a voluntary basis. From time to time, members have expressed concern about the supply of suitable, qualified people to serve as governors, and it is important that they are not put off by a fear of being individually liable for the consequences of actions that they might take in good faith as a member of a board of governors.

675. Mr B McCrea: I want to return to your response to one of Dominic’s questions. It is significant that the GBA and the schools think that they are doing pretty well under the present system, yet you are asking them to give up something for nothing. Your response was that they are publicly funded bodies and that they will just have to get used to it. That is an unhelpful approach. It is important that you win over people and convince them that there is benefit in what you are doing. My party’s opposition stems from our belief that although your words may be sweet, your attitude may alter once change has been implemented. If you allow that belief to develop, you will have a very difficult job. It is important that we find commonality and address legitimate concerns.

676. Mr Stewart: That is a fair point. In attempting to set out our position candidly, I would not want to give you the impression that we simply set our faces against the GBA and that we would not continue to engage with it to convince it of the benefits of the proposed changes. We will try to build in additional safeguards if they are required to deal with the GBA’s concerns.

677. I contend that we have already done so to a great degree. The employment arrangements that we have proposed are unusual, to say the least, which reflects the fact that we have gone a considerable distance in building in safeguards. That has resulted in a complex model and complex arrangements, but that is legitimate because of the points that the GBA has raised.

678. Mr O’Dowd: In general, Basil’s points are fair enough, but there is also an onus on the GBA to approach the matter with an open mind and not from an entrenched point of view of not wishing to be convinced. If there are genuine concerns — and I assume that there are — they must be responded to. If the GBA can develop a scheme or draft guidance of which the Department can take heed, that would be a very good, open proposal. However, there is an onus on both sides to approach the matter open-mindedly.

679. Mr B McCrea: Would you permit a response?

680. The Chairperson: Yes, briefly.

681. Mr B McCrea: Many voluntary schools will consider the effectiveness with which they run their schools and educational affairs and compare it to what they see happen in other Government-led bodies. The voluntary schools will conclude that it is they who have adopted good practice, not the other way round.

682. I will make my next comment through the Chairperson: I am not sure that people really listen to the concerns that are raised here or whether they simply bat them back and forward. I have heard some legitimate concerns that I am trying to articulate, and I am sure that any reasonable person would be prepared to listen to arguments. I cannot speak for the GBA, but I am sure that if it was reassured and if we examined matters, it would respond in the right way. The danger is, John, that people sometimes do not get to the nub of a concern and therefore focus on other issues. If reasonable proposals come forward, it behoves everybody — the GBA included — to listen attentively to them and accept them.

683. Mr Lunn: I think that there is a word missing in paragraph 14, page 61, and that is causing confusion. It says that “this does alter the position", whereas I think that it should read that it does not alter it.

684. Mr Stewart: You are quite right.

685. The Chairperson: Well spotted, Trevor. You win the prize today.

686. Mr Stewart: A very important “not" is missing.

687. Mr D Bradley: I want to follow up on a point that you made earlier that there was unequal treatment of staff in voluntary grammar schools. That is a serious allegation, which, you say, the Department has no powers to investigate. Can you give examples of that inequality?

688. Mr Stewart: To be fair, I said that there was anecdotal evidence that there is an inconsistency of approach, but I would not go so far as to say that there is unequal treatment of staff. That would be a very serious allegation indeed.

689. Mr D Bradley: I thought that you mentioned inequality.

690. Mr Stewart: I think that I said that there is an inconsistency of approach that could give rise to inequality.

691. Mr D Bradley: That was not my understanding of what you said.

692. Mr Stewart: I am grateful for the opportunity to clarify.

693. Mr D Bradley: We can check the Hansard report in any case.

694. The Chairperson: Earlier, you said that the GBA could, if it wanted, propose recommendations or suggestions regarding the employment schemes. However, the briefing paper says that detailed guidance on model schemes will be developed in the coming months and will be made available to us. Is there still time for that to happen and for an exchange of views on schemes? Is that work ongoing?

695. Mr McGrath: Yes, it is ongoing, but it is not set in concrete. The guidance on a model scheme might suggest what its key components might be, but one would still have to decide what the model scheme would be. Nothing is precluded.

696. There is still scope for iteration and dialogue. Further to Basil’s helpful points, we have to address the real problems and the existing perceptions.

697. Education has a significant workforce that requires strategic planning, but that is not available to date. A single employing authority will address that shortfall by, for instance, balancing recruitment and supply and demand. One way in which the Minister wants to raise standards is to improve the quality of teaching. That will require strategic drivers for all the workforces that are involved, and that could be planned.

698. It is critical not to miss the strategic dimension when dealing with the issues at local employment level. Workforce planning, establishing a balance between what teachers and classroom assistants do and deciding whether there is scope to change the barriers or adopt new approaches need to be addressed strategically. If actions are to be taken on those issues, everyone must move at the one time. It is important to keep that dimension. That is one of the pluses of the single employer system, and it needs to be fed into the equation.

699. Mr Stewart: The door will not close on employment schemes. Model schemes will be produced, but schools will not be obliged to take them. They can take them off the peg and adopt or adapt them or they can come up with their own schemes — if they wish — provided that they are in accordance with the policy.

700. The Chairperson: Chris, you can speak on the opportunities for teaching staff and the review.

701. Mr Stewart: I will be as brief as I can, as I am conscious of the pressure on your time. On several occasions, members expressed concern about the exemption of teacher recruitment from the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 and about the related issue of the requirement to possess a certificate in religious studies as an eligibility criterion for some posts in Catholic schools.

702. It is worth emphasising two important points. Any changes to the Fair Employment and Treatment (Northern Ireland) Order 1998 will be a matter for OFMDFM to consider. Before any decisions are taken on that matter, the Minister of Education has said that there should be a thorough public consultation and that the matter should be considered by the Executive and advice sought from the Equality Commission.

703. It is also worth reminding members that even if that exemption were removed and if teacher recruitment were brought fully within the parameters of the Fair Employment and Treatment (Northern Ireland) Order 1998, it is likely that the requirement to possess a certificate could continue to be lawfully applied in relation to some posts where it is a genuine occupational requirement of the post.

704. Nevertheless, the Minister has recognised — and takes seriously — the concern expressed by members about the potential for inequality. Therefore she has decided that there will be a review of teaching opportunities for teaching staff, for which the terms of reference have been suggested, and we welcome the Committee’s views on them. They are set out in the paper. Departmental officials will forecast the number of teaching vacancies that are likely to arise over the next three years. They should be analysed by school-type and sector so that we have good, reliable and robust information about the future.

705. Officials will also have to estimate the proportion of those vacancies for which a certificate in religious studies is likely to be an eligibility criterion and identify the routes by which teachers might obtain a certificate — either as part of their teacher education or subsequently. Furthermore, officials will identify any barriers to obtaining a certificate that could give rise to inequality and make recommendations, as appropriate, on measures to promote equality of opportunities for teachers.

706. Members will see that the approach suggested and the terms of reference take as their starting point the recognition of the reality that the requirement for certificates is likely to continue, at least for some posts. Therefore we feel that the best way to address the Committee’s concerns is to examine and ensure that there are no barriers to any teacher obtaining the necessary certificate if they wish and, therefore, being eligible to apply and take up a post in any school.

707. On completion of the review, the Minister will advise the Committee of the outcome.

708. The Chairperson: Are we back to the same argument that we discussed earlier? This is not about the potential for inequality; it is about an inequality that has to be addressed. It is not about removing barriers to obtaining the certificate — nobody is saying that anyone is ineligible to obtain a certificate. It is the use of that certificate, in the generic sense, that could be used to discriminate against people of a different religion who do not have it. For instance, the certificate in religious studies is not specific to anyone who wants to teach geography or mathematics.

709. An argument could be made that the certificate is necessary for the teaching of religious education, which is a sensitive issue. You referred to the Minister talking about the potential for inequality, but the problem is not the potential for inequality; it is about addressing an existing inequality.

710. Mr Stewart: Before we draw any firm conclusions on that, we would like to have much better information to present to the Committee about which posts have such a requirement attached to them, because we simply do not have definitive information. I am sure that, as part of the review, the Committee expects us to present a clear picture of where that requirement is, or might be, applied.

711. Mr McCausland: We are told that the certificate is a requirement for some teaching posts in Catholic schools. My understanding is that it is also a requirement for some posts in integrated schools, where children are being prepared for first communion. Why is that not included in the briefing paper?

712. Mr Stewart: That is an omission that I am happy to correct.

713. Mr McCaulsand: People have come to my office and told me that they had been unable to apply for teaching posts in integrated schools. Of all the things, it seems most bizarre that they were excluded from an integrated school.

714. I notice that the review will take a year. In the meantime, is it possible for you to supply the Committee with some simple, easily accessible information? For example, information on how the certificates are obtained — the teacher who came to me was able to explain that in about five minutes. We would also appreciate information from CCMS, for example, regarding its estimate of the percentage of teaching posts in Roman Catholic schools for which the certificate is required.

715. Mr Stewart: We should be able to bring that information to the Committee very soon and will not dither in doing so. In relation to the routes for obtaining a certificate, I understand that student teachers at Stranmillis can obtain a certificate by distance learning, which is provided, I believe, by Glasgow University. However, it seems that there is a route for teachers in initial teacher education going through Stranmillis.

716. However, it is not clear whether an already qualified and practicing teacher who, for whatever reason, did not obtain a certificate, has an easy and straightforward route to getting one now. If that is not the case, there would be a barrier for qualified and practicing teachers, and we must consider how that barrier might be overcome.

717. Mr McCausland: I was led to understand that the distance-learning route was not as simple as might first appear.

718. Mr Stewart: That is why, rather than offering the Committee a bland reassurance that a route exists, we want to get detailed information about how that opportunity is provided, how is it funded, to whom it is available, and whether it is a real opportunity or whether it merely appears to be one. We must discover whether a barrier exists.

719. There is information that we can get to the Committee quickly. We recognise the seriousness of your concern and that is why we want to get to the bottom of the issue.

720. Mr McCausland: It would be useful to have that information soon rather than wait to the end of the year.

721. Mr Stewart: I do not envisage the review taking a year — the paper says that it would be complete before 1 January 2010, but we expect it to be completed long before then.

722. Mr McCausland: Will the information that we request be available within a couple of weeks?

723. Mr Stewart: Yes.

724. Mr B McCrea: Has the Minister agreed that there will be a significant change on this matter? Whereas a certificate was once required for a wide range of posts, it will now be required only for posts for which it is relevant.

725. Mr Stewart: I do not think that that is in the Minister’s power to agree. While teacher recruitment remains outside the Fair Employment and Treatment (Northern Ireland) Order 1998, that requirement can be applied in — if I may use the phrase — a blanket fashion. If the exemption were removed and teacher recruitment brought under the 1998 Order , it would be incumbent on individual schools to justify the need for such a requirement in relation to every post to which they wish to apply it as an eligibility criterion.

726. I do not think that we can say how much difference that would make without researching where the requirement applies and where it might apply in future.

727. Mr B McCrea: We have spoken anecdotally. There is potential for structural inequality in the requirement to have a certificate in religious education, even if it does not relate directly to a subject.

728. Mr Stewart: In order for there to be a structural inequality, two conditions would have to obtain: one, that the requirement was being applied in the way that you have described; and two, that a group of teachers was denied the opportunity to meet that requirement. We do not look at either/or of those things; we look at them both. We need to provide the Committee with information on how and where the requirement is applied and how and where teachers can satisfy it.

729. Mr B McCrea: I agree with your analysis that both conditions must be met. From what I have gathered, is the Minister’s position that if that was found to be the case, it would not be acceptable and a way would have to be found of dealing with it?

730. Mr Stewart: I think that that is a reasonable description. I do not think that we would have agreed to such a review were not a clear intention to remedy any deficiencies or problems that it uncovered.

731. The Chairperson: That brings us to a conclusion of our discussion. I thank Chris, John and Joe for their attendance.

732. Mr B McCrea: Chairman, do you not think that Joe gets a very easy ride?

733. Mr Stewart: He does not; he works me by remote control.

734. Mr Joe Reynolds (Department of Education): A swan only glides because of what happens under the surface.

735. The Chairperson: I would like to deal the motion to extend. Members will remember that the 30 days’ referral stage of the Bill to the Committee that began on 8 December 2008 ends on 15 February 2009. Therefore the Committee must agree an end date for the Committee Stage today so that the Bill can go as a Committee motion for debate in the Assembly on 2 February or 3 February. The end date for Committee Stage is the last date that the Committee must report to the Assembly on its scrutiny of the Bill.

736. I remind members that the Committee sought a single-Bill approach. We have the unique situation of having two Bills as part of one legislative programme. As the Committee heard from officials on 10 December, they must earn the Committee’s confidence on the first Bill and on the development of the second Bill, which will not be introduced into the Assembly until just before the summer recess.

737. I also remind members that when I raised with senior officials the need to have the first Bill on the statute books by the summer recess, it was recognised that that date was an aim and that it is a matter for the Committee to decide. This is a significant and complex Bill to be enacted by the summer recess. In light of that, I propose that we extend Consideration Stage until Wednesday 30 September.

738. The Committee would does not wish to delay the Bill unduly — I reiterate what I said in the Hansard report of 10 December 2008 — this is not a delaying tactic. We will continue to work. Over the past weeks we have seen the magnitude of what is before us, but we must ensure that we have allayed all the concerns that have been expressed and that the integrity of the Committee — as its legislative requirements are to scrutinise a Bill — is maintained and upheld.

739. Therefore I make that proposal. Is everyone content?

740. Mr O’Dowd: In effect, by delaying Committee Stage until September — whatever the Committee’s intention may be — the Bill will be delayed. Are you suggesting that the Committee’s approach is to have one Bill?

741. The Chairperson: The Committee has expressed a concern. It would have preferred one Bill, although there will be two; but we have not seen the second Bill. However, the Department has given a commitment that it will present us with that information. I am reiterating the Committee’s concern about having two Bills. I am not saying that we must have one Bill; we are on course for two Bills.

742. Mr O’Dowd: I appreciate that clarification. Given the many months — if not years — of discussions on the Education Bill, we feel that there is no need for a lengthy extension, such as the Chairperson has proposed, and we are concerned that an extension to September will cause delay. If the Committee were to set itself a course of all-day meetings instead of half-day meetings — which many other Committees have to do when scrutinising Bills — it could complete its legislative scrutiny much sooner than September.

743. The Chairperson: That is not precluded by a date of the end of September.

744. Mr D Bradley: Extending to the end of September — all things being well — would not preclude the establishment of the ESA by January 2010.

745. The Chairperson: It would not. If we did what was recorded in the Hansard report of 10 December, that would not be the case. I refer members to Chris Stewart’s comments of 10 December.

746. Mr D Bradley: Getting the work done before that will entail close co-operation between the Department and the Committee; papers would have to arrive with us in good time to be considered.

747. The Chairperson: Yes.

748. Mr Lunn: Two aspects are involved: one is that we carry out a proper scrutiny of the Bill; the other is that we get a chance to see the second Bill before we agree the first one. I do not know how long it takes to scrutinise a Bill — this will be the first Bill that I have ever scrutinised. We received a copy of the first Bill in draft form in June 2008, and we did not see the final Bill until December 2008. I wonder when we will see a draft of the second Bill, never mind the final Bill. That could have a significant effect on our thinking and how long scrutiny will take. From now until the end of September seems a long time to scrutinise a Bill. If there were no second Bill, how long would it take us to scrutinise a Bill? Would it take nine months? I doubt it.

749. The Chairperson: The Committee for Health, Social Services and Public Safety took five months to scrutinise a Bill.

750. Mr McGrath: It is the Department’s intention to have a draft Bill available as soon as possible. John wrote to say that you want us to talk about area-based planning and the ownership of the controlled estate. There will be a dialogue about components of the Bill and we will paint a picture of the issues in a matter of weeks, so there will be early transparency about the provisions envisaged in the Bill and how they will work. That is what the Committee wants to know. That work will start soon.

751. The legislative timetable for getting the Bill on the books must be taken into account. There is also the operational timetable, involving issues such as the appointment of staff, which could not be delayed too late in the year.

752. As Dominic said, if there were to be prolonged scrutiny, some of the preparatory work, such as appointing a chairperson, establishing structures and creating second-tier posts should commence over the summer. Otherwise, although the ESA could legally come into existence on 1 January it would be unable to operate.

753. Mr McCausland: Our choice of date is prudent. The onus is on the Department to respond promptly. The quicker the Department provides information, the sooner we will achieve our goals. The Committee is not in control of that matter.

754. Mr B McCrea: It is a complex situation. The Education Bill, unlike the Health and Social Care (Reform) Bill, is particularly contentious, and there are strong views on its provisions. Today’s session was helpful in identifying issues. If issues such as area-based planning can be resolved to our satisfaction, it is more likely that the Bill will receive a proper passage in the Chamber. We should not underestimate the difficulties, and therefore we need as much time as possible to hear other bodies’ opinions because folk need reassurances. The sooner we complete that process, the sooner we can finalise a report.

755. I have stated the Ulster Unionist Party position, which Michelle McIlveen usually refers to as a party-political speech. We oppose the Bill because we fear that unidentified issues might arise; however, if those issues are resolved, progress can be made. A process of engagement provides the best way forward. Therefore we support the Chairperson’s proposal.

756. The Chairperson: I want to clarify the position. Issues of area planning and the controlled estate are not included in the first Bill but are in the second Bill; they are tabled for 4 and 11 February. As John McGrath said, I included those issues in the work programme to ensure that the Committee will have commenced that dialogue before 20 February, which is the closing date for consultations on the first Bill.

757. As Chairperson, I want to ensure that the necessary preparatory work and the scrutiny of the provisions of the second Bill are not delayed until an unknown end date and that the Committee examines the two Bills coherently and holistically. That provides a safeguard. It is not a signal to the Department or anybody else that we intend to drag our feet. The Committee will work hard to address the issues, raise concerns and achieve resolutions. It will be useful if the spirit shown in the past two weeks continues. Do members agree with my proposal?

758. Mr O’Dowd: No. Sinn Féin counter-proposes 1 June as the date for extension.

759. Mrs O’Neill: John O’Dowd’s suggestion demonstrates an intention to extend to 1 June; however, there is nothing to preclude the Committee from asking for a further extension at that stage.

760. Mr McCausland: It is not possible to ask for a second extension.

761. The Chairperson: Under Standing Orders, I can request an extension in the House only once. Therefore if the Committee identified problems at a later date, it could not request a further extension.

762. An extension to the end September will give us all in the Committee a safeguard. We do not envisage that anything will arise, but if it does we have given ourselves that protection. I have only one opportunity, as Chairperson of the Committee, to ask for an extension of the Committee Stage. The protocol is to take a vote on the latter proposal first.

Question put, That the Committee ask the Assembly that the Committee Stage of the Education Bill be extended until 1 June 2009.

The Committee divided: Ayes 2; Noes 7.

AYES

Mr O’Dowd, Mrs O’Neill.

NOES

Mr D Bradley, Mr Lunn, Mr McCausland, Mr B McCrea, Miss McIlveen, Mr Poots, Mr Storey.

Question accordingly negatived.

Question put, That the Committee ask the Assembly that the Committee Stage of the Education Bill be extended until 30 September 2009.

The Committee divided: Ayes 7; Noes 2.

AYES

Mr D Bradley, Mr Lunn, Mr McCausland, Mr B McCrea, Miss McIlveen, Mr Poots, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Resolved:

That the Committee ask the Assembly that the Committee Stage of the Education Bill be extended until 30 September 2009.

28 January 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Edwin Poots

Witnesses:
Mr Gavin Boyd (chief executive officer designate of the education and skills authority)
Dr Mark Browne (education and skills authority implementation team)
Ms Catherine Daly (Department of Education)
Mr John McGrath (Department of Education)

763. The Chairperson (Mr Storey): I welcome the chief executive officer designate of the education and skills authority (ESA), Gavin Boyd; John McGrath from the Department of Education; and Mark Browne, who is the programme director of the education and skills authority implementation team (ESAIT). The two issues for discussion today are designing modern education services; and the outline business case.

764. Mr Gavin Boyd (chief executive officer designate of the education and skills authority): Good morning, and thank you for the opportunity to speak to the Committee. The first part of the presentation is to update you on what we have been doing on the design of the education and skills authority.

765. Members will be aware that this is the first major reorganisation of the administration of education in 35 years. Over that period, significant change has taken place. For example, political change has taken place, so the new structures of corporate governance need to reflect the political reality of devolution, as opposed to that which was set up, to some extent, to offset the perceived democratic deficit of the 1970s. On the other hand, local understanding and insight are important in informing decisions; that was one of the great strengths of the system.

766. There has been huge technological change, and there is an opportunity to reflect the impact of technology in the design of the new organisation and in designing services. The existing system is over-engineered; there is significant duplication of effort, particularly in management. As we create the new organisation, we will move quickly to deal with that. As I will touch on later, the outline business case indicates that initial savings of £20 million a year will be generated. We are happy to work through the latest thinking on those savings.

767. However, apart from the issue of modernisation — and the review of public administration (RPA) was a primary plank in modernisation, simplification and generating savings — it has become clear that the performance of the system from an educational perspective is very variable. I do not have to rehearse the issues. Quite simply, too many young people do not achieve the educational outcomes or have the personal development opportunities that they should. That is a personal tragedy for the individual, but it is also a disaster for our economy and our society.

768. This is a huge change programme. To be successful, we must have a thorough process that takes into account international best practice and the detailed knowledge of those involved in the system. We have designed a process that is inclusive, involving hundreds of staff and trades union representatives. It is open and methodical, and we report regularly to the widest possible group through the use of our website, which gets a great many hits.

769. We hold ourselves open to account and to good ideas; this side of the table does not have a monopoly on good ideas. We are wary of jumping to quick solutions that have not been fully thought through. We make no apology for taking a methodical approach as we work our way through such a huge change process.

770. I will hand over to Mark Browne, who will take you through the detail of what we have been doing for the past six months or so.

771. Dr Mark Browne (education and skills authority implementation team): As Gavin said, this is a massive change programme. In working with the Department, the implementation team has been keen to set out for the staff in the organisations, and others with an interest in the change, how it can be managed successfully. To assist with that, we have developed a model of change, which we have called transfer, transform and innovate. For all the various services that will be coming into the new authority, that model of change sets out the risks associated with change, the benefits associated with the change and the pace at which change might be delivered.

772. We have identified 20 key services that will be delivered by the ESA and classified them into those three areas. The first area involves those services that have direct contact with users and are vital in ensuring that there is continuity from day one; for example, transport and school meals. In the early stages, the bulk of those services will transfer largely as they stand, with delivery at local level remaining much the same. However, there will be change to ensure that we bring the five or six different management structures into one regional structure.

773. The second category involves those services that need to transform. Those are typically back-office services, which are critical to the success of the organisation but which are largely unseen by those who use them. In those areas, there is real opportunity to eliminate the duplication that Gavin referred to. For example, the six financial systems will be brought into one system, and, in doing so, we will improve the quality and the timeliness of information and we will release resources to be used in other parts of the education system closer to the front line.

774. The third area involves those services where innovation is required, which include the parts of the education service that parents and children, and others involved in the education system, look at to see improvement: educational quality; school improvement; services to help children and young people to overcome barriers to learning; and the education estate, which includes the quality of the schools, their size and location.

775. Those are the key areas in which educational benefits will flow in the chain from the ESA and key areas in which innovation is needed. That is the broad model that we have set out for staff so that they can see how we will manage the change and the risk at the same time.

776. To drill down into a little more detail, we must look at each of the 20 service areas to decide what we want to achieve and how best we can design the organisation to accomplish that. We set out a four-stage process, beginning with a clarification of what we are trying to achieve, and the vision aims and objectives of the area, and we moved into the service-delivery model required to deliver that. We then moved into the number of people and the skills and resources that they require, the organisational structure and location. That is based on the form-follows-function approach.

777. We have done that through an extensive programme of engagement with staff in the sector. It began with a launch in April 2008, where we had several hundred managers together in one room. We were told that that was the first time that managers from all organisations had come together to discuss such educational issues.

778. We took that forward through a series of workshops last May and June, when we looked at stage 1 — the visions, aims and objectives for each area. We have moved into stage 2, where we have drawn out the detail of how services are operated, and we made proposals on how we think they should operate under the ESA. We finished that process just before Christmas, when we engaged with 450 senior- and middle-management staff and trades unions — which were represented at all the workshops — to look at all those service areas and to consider and test our proposals.

779. We want to refine those proposals and move into stages 3 and 4: sizing the functions, identifying the skills, and moving into the organisational design and location aspect. The key to those service-delivery models is looking at a regional/local approach. We need to look at what services are best delivered regionally to bring consistency to ensure that standards are met, to ensure that there are efficiencies and to release resources; and what is best delivered locally.

780. In each of the service-delivery models we have set out regional and local functions and have tested that with the staff who are delivering the services. What came out of the workshops, along with a great deal of detailed comment, was a strong endorsement that a regional/local approach made sense and could work. That is what we are working on to develop in more detail.

781. A key feature is the local area teams. We want to have multi-disciplinary, integrated teams that will be delivering key services close to schools and providing the support that schools need. That would include school-improvement practitioners, behavioural support, educational psychologists, youth co-ordinators and early-years co-ordinators; all will be in local teams close to the schools, youth-work settings and early-years settings, providing the support that they need. They would be headed up by a local team leader, who would represent them and be the point of contact for those who have questions or queries about the service delivery and the services available in an area. We are working through a bit more of the detail on that.

782. We are finishing the second stage of a four-stage process. We are moving from the future service-delivery models into sizing the functions and looking at the skills and resources. We will then move into the detailed organisational structure below the top level to consider where those functions should best be located and organised. That is the process to date.

783. It has been an extensive process of engagement, which has been welcomed by the staff who have been engaged in it. One interesting point was that the first round of workshops attracted some 350 staff; in the second, that increased to 450. We had to work hard to contain the numbers so that we could manage. There is interest in the organisations and a willingness to engage, and we have been heartened by the expertise that we have been able to draw on. We will continue to draw on that throughout the process.

784. Mr Boyd: We will stop at this stage and let members take over.

785. The Chairperson: Thank you. Do we now have any sense of the draft cost of the organisational structure showing the local and regional staff allocations?

786. Mr Boyd: I will answer that from a slightly different angle. As we have worked through the exercise to date, we have affirmed the work that was done in the outline business case. We will talk more about that later on. It has made us very confident in the figures that were originally generated by the business case, which is, by definition, an outline.

787. Now that we have entered into more detailed work, we are more confident. We have not yet sought to cost — in detail — the split between local and regional services; we simply have not got to that part of the exercise.

788. Take, for example, the payroll function. There is no argument against changing the 30-odd payrolls to two payrolls; that is a sensible approach. The most important payroll issue for staff is that they are paid the correct amount of money on time. That process can be completed quickly. Some 240 people are involved in paying staff; it is a large and complex exercise that is spread across many areas. We have made some modest assumptions about how moving to a single function will affect those numbers. That exercise has yet to be completely scythed and, as Mark said, it is the next stage of our work. That is one example of a regional service that will, in time, operate from a single location.

789. As Mark said, on the other side of the coin, we have been considering which services should be delivered locally. We have been discussing our views on school support, educational psychologists, behavioural welfare and the Youth Service with the Department; the music service alone involves 450 staff. We need to plan carefully. We have not yet completed the detail exercise, but we will work through it during the next few months.

790. The Chairperson: You tested approximately 20 draft future service-delivery models through 11 workshops in November and December. Have you agreed the regional/local functional split in services? What feedback have you received?

791. Mr Boyd: For each of the workshops we produced our view of what the regional/local split should be, and in every case it was affirmed. During the past year, we learned that although it is clear that everyone accepts the logic behind a single finance department, a strong case was made that local support must be immediately available to schools to allow them to manage their own budgets. That work is being carried out by the local management of schools (LMS) officers in the boards. The model that we have developed allows for a single finance function and allows finance personnel to be dispersed to ensure that they are immediately and readily available to schools. They will be included in local teams.

792. During the past year, we have received feedback from governors’ conferences and school principals to the effect that they need locally and immediately available human resources advice. Schools that were experiencing problems wanted to talk to an expert rather than a faceless person whom they did not know; they wanted somebody to come to the school and discuss the matter. That finding is built into our plans for local areas.

793. We have built and tested a model from talking to people. In fact, some groups have been ahead of us. Those involved in the cleaning service presented a plan of how to organise a regional cleaning service. That is an example of people who are responsible for existing services grabbing the bouncing ball and solving that problem on our behalf. Several other services have replicated that approach.

794. The Chairperson: It is one thing for such groups to present ideas on how to progress, and I appreciate that you cannot give a blank cheque on those issues. However, one concern and criticism of the process has been that you could outline a proposed model, but because there is a predetermined plan for the regional or subregional functions, proposals will not receive the courtesy and consideration that they ought.

795. Mr Boyd: From our perspective, that is not the case. In my opening remarks, I said that people on this side of the table do not have a monopoly on good ideas. However, we measure all proposals against examples of best practice. For example, between 50 and 60 staff are involved in the procurement of goods and services.

796. We measured the procurement budget of £130 million and the size of our staff against the number typically involved in the procurement of goods and services according to international best practice. We found that the number is considerably less than 60. We must therefore match our best thoughts with what we can aspire to on the basis of international best practice.

797. Mr D Bradley: The Chairperson asked one of my questions, but sure.

798. The Chairperson: How sad. I apologise.

799. Mr D Bradley: How local is local? How many local area teams will there be?

800. Mr Boyd: There is still discussion about that. From our perspective, the principle is that services should be delivered at the closest possible point to schools and pupils.

801. Even in our existing services we have some sub-regional teams. We want educational psychologists located and working with small clusters of schools so that they are immediately available. We foresee circumstances in which educational psychologists are based in local communities of high need. That does not mean that that local team will operate on its own: it might be a subgroup of a slightly bigger team, but it should be determined by need and the importance of providing immediate access to services to make a difference to children.

802. Mr D Bradley: That does not really answer my question.

803. How can you produce a credible business plan if you do not know how many local area teams there will be?

804. Mr Boyd: There are two aspects to that. First, how we group services for management purposes is different from how we plan to deliver them.

805. Mr D Bradley: Generally, management will be grouped, as far as possible, regionally. Is that what you are saying?

806. Mr Boyd: No. The strategy should be regional and should be followed consistently across the region.

807. We have some 150 educational psychologists in the service, and we must ensure that they are as close as they can be to the need of the community. Over the next few months, we will decide how to cluster those psychologists for management purposes, taking into account not just the management of the organisation, but the need to interface with communities. That is something that the Department will want to examine. I am sure that it will be the subject of further discussions.

808. Mr D Bradley: When will we know the extent of the local area teams?

809. Mr Boyd: We will work hard on that over the next few months. We will pass it to the Department, which will want to consider and discuss it with various parties.

810. Mr D Bradley: Surely, that is one of the most pressing matters for schools. Schools will ask whether the ESA is like an elephant somewhere in the distance or will it be near hand and accessible when schools need it?

811. Mr Boyd: The model is designed to ensure that services that need to be close to the school and the pupil will be accessible. We are absolutely committed to that.

812. Mr John McGrath (Department of Education): We touched on that several weeks ago when we discussed the new organisation’s structure. We made it clear, in line with what Gavin said, that the Minister’s view is that services should be available as locally as possible. The Department’s view is that the number of local area teams should be grouped, perhaps, in six areas; however the service — human resources, finance, educational welfare officers or educational psychologists — should be as close to the school as is managerially possible. We have rehearsed this issue before. It will depend on circumstances, but the general theme of our work is subsidiarity. As much as possible will be available locally, and if back-office services can be centralised, they will be.

813. The Chairperson: Can I tease that out a little? What consideration has been given by the implementation team and the Department to the pressures that schools are experiencing with regard to educational psychologists?

814. As Gavin said, there are some 150 educational psychologists in the system. However, demand and need are huge, with many people on waiting lists. Will those 150 educational psychologists merely be spread out and instructed to work with the schools to which they are closest?

815. In your workshops you are bound to have been told about the structures and the associated problems. What cognisance is being taken of the problems involved in developing the delivery of the system? We could end up with a far worse situation than the present one.

816. Mr Boyd: I will comment from the point of view of the implementation team, and John will give the Department’s perspective. Some months ago, I spent several hours talking to the east Belfast primary principals’ group; our conversation was dominated almost entirely by access to special support for children. Those principals asked me: what is the point of providing psychology services three years after a need has been identified? The child will have left the school and there is nothing more that the school can do.

817. The principals became quite emotional; they are doing their best for their kids, but the services are not available. From a planning perspective, my first question is whether we have the right number of educational psychologists. How do we know whether 150 is the right number? The answer is not available to me in the system.

818. Mr D Bradley: If they cannot deliver the service needed, surely that is a good indication that there are not enough educational psychologists.

819. Mr Boyd: That is one possibility. Another possibility, however, is that we have not organised services or allocated priorities correctly. Most of us around the table went through the education system at a time when there were very few educational psychologists. Some people in the system argue that we now ask someone to come in to help with issues that used to be dealt with by primary school teachers in class. That is the sort of issue that the Department is considering from a policy perspective.

820. We are setting out to check various issues. Is the number of educational psychologists right? Is the organisation of the service right, or do educational psychologists spend too much time writing reports and having meetings rather than dealing with children? That issue has had a huge impact on me personally, and it is something that we have to consider. If more educational psychologists were required, funding would have to come from savings made elsewhere in the system. I could talk about this for the rest of the morning, Chairperson, but you would not want me to do that. I will hand over to John to provide the Department’s perspective.

821. Mr McGrath: I will make the same points in reverse. There are two strands to the issue. The first is: how many educational psychologists are needed? Perhaps more are needed, but the resources need to be found, and that is a priority issue. The second strand is developing the best managerial and professional way of deploying skilled and specialised staff such as educational psychologists; Gavin has rehearsed that point.

822. There is a coincidence of two issues. Gavin’s job is to create an organisation that makes the best use of the available resources and, as far as possible, frees up resources from support services that can be directed to front-line services such as educational psychologists. Ultimately, it will be up to the Department and the Minister, through the budgetary process, to maximise the amount of resources going to education. Gavin cannot come up with an optimum level of staffing that exceeds the amount of resources that are available to him, but he will seek to come up with the most effective deployment of those resources.

823. Mr Lunn: You will deserve an award if you successfully convert 30 IT systems into one or two. It seems that every other Department or organisation that has attempted to make such a change has either experienced major teething problems or made a complete Horlicks of it. Will that be in the Hansard report? [Laughter.] Millions of pounds have been spent, but systems have not been in place.

824. The Child Support Agency comes to mind, but there are many others. In the Public Accounts Committee, we have heard about so many disasters. How confident are you that, from day one, your systems will be robust enough to do the job?

825. Mr Boyd: I thought that that was an IT term.

826. Let me make an observation, since I have had the opportunity to examine existing systems in some detail. I used to work for a private-sector company that invested heavily in IT systems to do the drudgery of everyday work, which I call the “heavy lifting". The organisation also invested heavily in IT because it allowed the company to operate at — what I considered — a reasonable level.

827. My observation is that, educational technologies aside, investment in ordinary IT services to support human resources and finance has simply not been adequate. As a result, we have found that people are working incredibly hard under very stressful conditions to do jobs that in many other organisations are done by technology.

828. There is a huge frustration that human-resources systems cannot provide sufficient details about staff — such as where they live — to plan for the future. Therefore, we simply must invest significantly in IT to develop a modern organisation. That will drive some of the savings. I am aware of the track record in public investment in the technology to which you referred, and I am also aware that Hansard is recording this session. There are ways in which those issues can be delivered on.

829. I am conscious of the fact that there are people in this room who know more about technology than I do, but it is not difficult, in the twenty-first century, to have a single payroll system. It is not difficult to have a human-resources record system. Those are the challenges that we must face.

830. Mr Lunn: As regards other organisations, the problem seems to have been that the specification was not set out properly at the start. No matter whose fault it is, it is the commissioning body, which you represent, that must pay for and mop up the extra costs, even though, in some cases, an outside agency provided the systems that spelt out the specifications. Are you totally confident about this system?

831. Mr Boyd: You identified the vital importance of being what we call “the intelligent customer". A company cannot subcontract to another company the job of telling the first company what it needs. A company must be able to define its needs and to hold the supplier to account if it fails to make payments.

832. Mr Lunn: If people do not get paid in a year’s time, we will talk again. I am glad that you are confident.

833. Mr Elliott: Thank you for your presentation. I know that the issue of educational psychologists was used by way of example only, but surely that is, or should be, part of an ongoing review by the Department. I am surprised that there may be such a discrepancy now.

834. You spoke about wanting to reduce duplication, and I do not think that anyone would disagree with that. My concern is that when issues such as this have arisen before they have been addressed the wrong way round — front-line services, which are desperately needed, have not been retained and improved. Front-line services such as teachers, teachers’ support services and transport have been reduced at a local level, whereas administration has been built up, despite there being no cost savings in it. Therefore I remain to be convinced on that matter.

835. Being from the west of the Province, when I hear that something is being centralised I assume that it will be based in Belfast, while the rest of us lose out. I am keen to hear your comments on that.

836. Mr Boyd: The goal has been set: a greater proportion of the budget must be allocated to the classroom and to those who support children and young people directly. I cannot tell the Department how to do its job, but I expect it to make clear what percentage has been allocated to the classroom this year, next year, and the year after — as crudely as that. I expect such measures to be put in place.

837. Part of that has already happened. You have heard this before, but the savings projected for the first three years of the ESA have already been built into the Department’s financial plans for the future. That money has already been taken out of administration and is planned for allocation to the front line. Missing the targets is not an option; we simply must meet them to balance the books.

838. I will deal with the point about psychologists quickly. Such issues should be kept under constant review. I do not know — and no one has been able to tell me — what the appropriate caseload is for a psychologist. I do not know whether 150 psychologists is enough, too many, or too few, and I have no way of measuring it. It is not an insurmountable challenge, because it is done elsewhere in the world. That is the sort of thing that we will have to deal with.

839. It has been made clear in papers that we have submitted to the Department, on our website and in a presentation to the Committee that the centralisation model that we have been working towards and which we have presented to the Department respects the footprint of existing jobs. In other words, there are jobs in the west, and we anticipate that under the new model there will continue to be jobs in the west; not the same jobs, but there will be jobs. The different functions, such as finance and human resources, will be centralised, but not all in the one place. Those, of course, are ultimately decisions for the Department, but that is the model that we have been developing.

840. Mr McGrath: The Minister’s view is that as many resources as possible should be reallocated from back office to front office — into the classroom; that should be the objective. Equally, it is clear that in this budgetary period the Department is facing 3% per annum cuts or efficiency savings. Judging by the tenor of the Finance Minister’s statement on the strategic stocktake, it is clear that the Department will face at least that level of cuts during the next budgetary period. We must therefore consider the support services as they quarry to achieve those savings so that we do not have to take money out of front-line services. That will be our direction. I suspect that the Department will be looking keenly at Gavin to identify how he can sweat savings out of back-office services through rationalisation and centralisation to allow us to invest in front-line services and, equally, not to disinvest in those services.

841. The education and skills authority implementation team has outlined its thinking on how it would centralise functions and where it would do so. The Minister will wish to look sensitively at the location of public-sector jobs, but I think that I can speak for her when I say that she is sensitive of the need to avoid being Belfast-centric. The education service is a local service insofar as schools are concerned. The administrative arrangements involving five local boards and the other bodies are not Belfast-centric, and it is the Minister’s ambition to make those less Belfast-centric, not more. That will be a ministerial judgement rather than an administrative judgement by ESAIT.

842. Mr D Bradley: We examined the strategic stocktake with John and his colleagues last week. The Department is bidding for £60 million in 2009-2010 and £140 million plus in the following year. Will those savings not be consumed by deficiencies in the Department’s budget and never see front-line services?

843. Mr McGrath: As I said last week, the Department drew attention to pressures in the strategic stocktake. That is important. Now that we know that resources are not available to meet those pressures, the Minister will have to make a judgement about which of those pressures can be met from the outset next year, which can be deferred until next year’s end-year monitoring rounds, and whether some will have to be accommodated at the expense of other areas. That is still in flux.

844. All the arrangements for the administration of the ESA are designed to provide a tighter ship that will manage what will be a very constrained resource position. We can control the supply of resources. In many cases, particularly in the past year, we have no levers on the demand of those resources in the shape of inflation and other pressures. The administrative arrangements will undoubtedly be very constrained over the next two or three years; that much is clear from the Minister of Finance and Personnel’s statement.

845. There will be efficiency savings in the future; perhaps many of the savings that we will be looking for, above and beyond those cited in the outline business case, will be what we will have to lever out in order to meet efficiency savings targets, as opposed to being channelled into front-line services. We may not have the luxury of huge further investments unless the Budget decrees that. Things will be very difficult in the time ahead; if we did not have the Education Bill or a change in administrative arrangements, things would be even tighter.

846. The Chairperson: We will return to that matter, but I want to move on. I do not want to be sidetracked on the Budget; we will try to stay on issues concerning the education and skills authority.

847. Mr McCausland: I wish to make a couple of points, followed by one or two questions. No one questions for a moment the need for modernisation and simplification as an argument for change. However, Mr Boyd over-egged the pudding when he talked about educational performance; I thought that the real cause of educational underachievement was selection. That was the reason given for going against selection; now the blame is being directed at educational organisation. That cannot be used as the argument for everything; it does not stack up. Mr Boyd should refine that argument if he is to have any credibility.

848. How many workshops have been held, what was the participants’ level of satisfaction, and how much information from those workshops is available? I have to admit that I only found the website recently, but having found it, I will pursue it relentlessly.

849. Mr Elliott: Were you responsible for all those hits? [Laughter.]

850. Mr McCausland: Unless someone was very sad like me, they would not have bothered; there is nothing much on it.

851. Mr Boyd: In the most recent series of engagements, we held 11 workshops, three of which were what we called quality-assurance workshops. The first three workshops involved the most senior managers in each of the organisations that were responsible for a cluster of services. We called them quality-assurance workshops because we trialled all our thoughts and our presentations in front of the most senior managers to see if we had missed something obvious. The other eight workshops dealt with the 20 broad service areas that we had identified; they are set out in the members’ information pack.

852. We gathered a huge amount of information; we could have filled a couple of lever-arch files with the feedback from the workshops. We decided not to bring that information to the Committee on this occasion, but we are happy to make it available.

853. Mr McCausland: What was the level of satisfaction?

854. Mr Boyd: Judging by the feedback, it was very high.

855. Dr M Browne: The feedback from the workshops about the model was very positive. We have since received e-mails from the various organisations; I have one here that emphasises how valuable the staff found the workshops. We have had feedback meetings at which the organisations told us that staff had responded positively to the engagement.

856. Mr McCausland: I spoke to someone who attended a workshop — someone in whose assessment I have confidence — and who has experience of one of the sectors. That person was surprised that the workshop did not present a more developed and well-thought out view of the way forward. I know that the aim of consultation is to obtain feedback.

857. Mr Boyd: There is always a tension, Nelson, between providing a fait accompli and encouraging people to express their thoughts.

858. Mr McCausland: I understand that. However, I am talking more about people’s assessment of the quality of what was presented to them. People are always reluctant to say anything nasty or difficult because, ultimately, the Department is their paymaster. I will leave that aside for a moment.

859. How will the procurement of services such as transport and services to schools — who cuts the grass and paints the school — be managed?

860. Mr Boyd: There is a great deal of detail in that question. Many services are made available by the boards to schools, which have the right to opt in or out of those services, and there is no plan to change those rights. In fact, one principle that underpins the ESA is the desire to increase the autonomy of schools and to increase the budget that they have to exercise that autonomy.

861. The intention is to set up a centralised contract-procurement unit for the general procurement of services. That will mean that high-level draw-down contracts and procurement contracts are organised centrally.

862. Mr McCausland: I am concerned that you do not end up with a system that discriminates against small businesses. Belfast City Council ran into that difficulty over minibus provision, and I have other examples.

863. Mr Boyd: Are you talking about the purchase of minibuses or the buying-in of transport?

864. Mr McCausland: I was using that as an example. Belfast City Council had difficulty with that; I was not referring to schools.

865. If contracts are awarded — and we are in uncharted waters — will there be an assurance that it will not be one big contract on the grounds of efficiency, which means that only big service providers can apply and that small, local businesses will lose out?

866. Mr Boyd: We touched on that issue before. I may appear to be arguing against myself, but I have seen enough examples of centralised procurement not working to be fully aware of the potential pitfalls. On the other hand, the only sensible way of managing large procurement contracts is centrally.

867. For example, there is no intention to have a centralised contract for paper clips or pencils. However, there is a clear requirement for a centralised negotiation with Translink on the £37 million per year that it is paid for school transport. In honesty, the full detail of that has not yet been worked out.

868. Mr McCausland: My final point relates to local delivery. I understand that what is delivered locally will be influenced by an advisory committee at local level. I am concerned about the decisions or recommendations of such a local committee being ignored. For instance, if it were planned to open a music school in the north-east, will the decision on whether it is placed in Aghadowey or Dervock be made by the ESA board — and most people will not have a clue where Dervock is in relation to Aghadowey — or will more authority be granted to the local advisory committee to make that decision? The same question might be posed in relation to Belfast — do you put the school in south Belfast or in north Belfast, for example?

869. Mr McGrath: We talked about that several weeks ago.

870. Mr McCausland: The problem is that I cannot get an answer.

871. Mr McGrath: We are talking about a reasonable organisation with clear policies that govern all its units and local teams that will have the flexibility to respond to local service needs and circumstances. Decisions and investments will be determined through the use of agreed delegations between the centre and the local teams.

872. If the case in point involves the provision of a music school, there may be issues concerning the scale of capital investment that is required for a particular location. That, and the running costs, may have to be considered by the central ESA board or, indeed, by the Department.

873. The decision about whether it should built be in Aghadowey may be taken locally, but the sign-off on the investment package must go —

874. Mr McCausland: Excuse me, but I must stop you there. You said that the final decision would be taken locally, but would that decision be taken by a local official or by a local advisory committee?

875. Mr McGrath: As we discussed several weeks ago, we have not worked out the detail of the role of local committees. They will be ESA committees, and their primary role will be advisory rather than to take executive decisions; otherwise we would create mini boards, and that would dilute the central body’s authority. Therefore we must give — and we are giving — further consideration to that matter.

876. Mr McCausland: I am concerned that decisions will be taken by people who know nothing about local geography.

877. Mr McGrath: Several regional organisations here — such as the Housing Executive and Invest NI — could act as models that balance locally sensitive units with centralised polices issued by a centralised board. It is not beyond the wit of man to square that circle. The matter for consideration is the scale of investment, which will be determined by how much responsibility is delegated to local teams, and the Committee will have an input into that decision.

878. Mr McCausland: Consider, for example, housing. Ultimately, housing decisions are made by local-level Housing Executive officials, under the authority of centralised officials. Every council has a housing-liaison committee, which tells people what to do and ignores what they say, and that brings us back to the observations about the DPP. It is important that we deal with questions about the structure for delivery; however, we must also consider the structure for decision making, and I am concerned about local input. One model might incorporate a central ESA, but it could also include localised decision making in that centralised framework. Decisions made in that way are often better. For example, a decision about where to locate a youth club would be better made locally.

879. Mr McGrath: I do not disagree; however, at the heart of such arrangements is the question of who takes such local decisions. No one would argue that decisions about the pattern of local service provision should be taken locally. However, if investments are involved, decisions may have to be referred up the line in order to consider investment priorities. The question is: who should take such decisions?

880. Mr McCausland: In the Housing Executive, district managers ask to do things, and their bosses overrule them. I cannot see any way round the problem of authorising local people — who are accountable and understand the community — to take decisions.

881. Mr McGrath: The regional organisation that we are discussing will be governed by the ESA, and the members appointed to it will be accountable to the Department and to the Minister. A model that advocated splintered authority would not be a good one, and, given the amount of funding that the ESA will have, I suspect that the Committee would not consider such a model to be good at any time. We must strike a balance. The committees will be ESA committees, not local ESA boards.

882. Mr McCausland: I accept that point entirely. However, you must find a model that allows decisions of that nature to be taken by local people who know the area well and who have some affinity with it rather than by an employee of the system. An appropriate model must be produced, because there is a lack of clarity about where we are going. Local influence in decision making — not just local delivery — is vital.

883. Mr Boyd: Considering that from a slightly different angle, the peripatetic music service is an interesting case in point, because different philosophies underpin various regional music services. In Belfast, there is an emphasis on excellence, resulting in organisations such as the City of Belfast Youth Orchestra and the City of Belfast Youth Concert Band. In Belfast, although inclusion is important and there is a great deal of activity, there is a clear focus on excellence. Other areas have their own approaches. Therefore, music provision demands a clear policy and a strategy that can be applied across the board.

884. After that, we will work out precisely how we will provide schools with support for the music service. Some of that service will, inevitably, be provided at the weekend or in the evening at a location that makes it available to all children, thereby not excluding some children because of where they live. I anticipate that some of the thinking behind that will refer to the area-planning process, which aims at considering the need for an educational service in an area and how it can be met.

885. We consider the provision of youth services in the same way: we examine the existing services and the demand for youth services in an area, and the community also has a major input into such decisions. Decisions on investment must, as always, be signed off by the Minister. I will take your points on board and will return to the Committee with more detail as the work progresses.

886. Mrs M Bradley: Gavin, you talked about transport and you also mentioned the change in the provision of school meals to a regional service. What consideration was given to that change? Given that the existing service is excellent and that we cannot afford to let the quality deteriorate, can school meals be improved? I would like to hear more of the thinking that led to that change.

887. Mr Boyd: First, Mary, there is not a single school meals service at present; there are at least five. Until recently, pupils paid a different amount of money for a school meal depending on where they live, and the content of the school meals was different, although that situation is being addressed. I make no comment about that, other than that there were differences and, therefore, not everyone was getting it right.

888. The proposition is to have a single regional school meals service and, therefore, a strategy: a single price; a single approach to the nutritional value of school meals; and decisions on what should and should not be provided. That strategic approach should be applied across the board. However, we recognise that most people who provide meals and who provide a wonderful service work in schools, and we will continue to support them in doing so. The supervision of their work will be organised locally.

889. As far as the school meals service is concerned, phase 1 simply involves the reorganisation of its management. We will streamline the management of the service, but we recognise that the service will continue to be delivered as it is at present for the time being. We should not lose sight of the fact that the total turnover of the service is £65 million, and, through one means or another, it is subsidised by approximately £35 million.

890. We have not considered, in any way, shape or form, efficiencies or better ways of delivering a service that is worth £65 million; our only consideration is its management. However, I would be very surprised if we do not learn lessons down the line. A great deal of money is tied up in the service, and thousands of great people provide those meals.

891. Mr B McCrea: I remain concerned that you changed the frame of reference and that you are now concentrating more on educational outcomes than on savings and efficiencies. My biggest concern is the number of redundancies that you estimate will result, as my guess is that they will account for most of the savings. How confident are you that you will achieve those savings through redundancies?

892. Mr Boyd: Lest there be any doubt, I am absolutely confident.

893. Mr B McCrea: You say that you are sure about that, but your outline business case states that somewhere between £24 million and £45 million can be saved through redundancies. Which of those figures is correct?

894. Mr Boyd: The cost depends on exactly who takes a voluntary severance package, because the model must be based on some assumptions. It is, therefore, based on an individual in his or her mid-50s with approximately 30 years’ service. The higher figure is based on someone whose removal from the system would be relatively expensive.

895. The lower figure can be based on a different set of assumptions. The final figure will not be known until we get to the date that each individual leaves the system and we become aware of their length of service and salary, among other things.

896. Mr B McCrea: Therefore you cannot tell me whether there will be savings of £25 million or £45 million in a £50 million cost budget.

897. Mr Boyd: That is not right.

898. Mr B McCrea: When I asked the question — [Interruption.]

899. The Chairperson: That relates to the business case, so we will return to that issue when we are discussing the business case. I want to keep to the question of modernisation.

900. Mr B McCrea: I appreciate that, Chairman. However, we are talking about letting people go. We have talked about our experiences in other organisations. As a member of the Policing Board, I know that there are not enough detectives in the PSNI, for instance. Part of the reason is that people who were doing important work were let go, and that problem might arise in this case.

901. I share Mr Lunn’s concern about IT; I have never known an IT system to come in on budget, and that is due to emergent requirements. I assume that you are going to tell me that savings will be made because all the people who are doing manual work will not be required as the computer can do it.

902. Mr Boyd: No; that is not what I am going to tell you.

903. Mr B McCrea: What do those people do?

904. Mr Boyd: That will take us to the outline business case.

905. The Chairperson: I want to stay on the issue of modernisation, but I am happy to let Mr Boyd answer those questions if he wishes.

906. Mr Boyd: I always find it helpful if members answer their questions as well as ask them. We are absolutely clear on the projected £20 million savings; that is in the outline business case. I have made it clear that as we worked through the last year we became more confident about the figures. The savings figure is clear.

907. We provided a range on the cost of achieving those savings. I cannot remember the figures that we provided for range in costs to achieving the savings, but it was between £22 million and £45 million. Savings are clear, but the costs depend on the individuals who leave at any given time.

908. The outline business case states that 463 positions are to go, and, in the paper that we provided for the outline business case, we set out the analysis of what posts are to go at different levels. Members will see that there is a disproportionate percentage of posts at higher levels, because the first phase is about reorganising management and the supervision of staff. It makes no big assumptions about losing large numbers of staff further down the organisation; it is about management.

909. We also recognise that a significant proportion of the target group is over 55; in fact, they are over 60. I am not making a point about ages, but there is a recognition of that fact. All the feedback that we receive states that a significant number of people will see this as an opportunity to leave the service and to move on to the next phase of their lives.

910. Mr B McCrea: I am glad that you found my attempt at giving you an answer helpful, because experience tells us that when we ask questions we do not always get an answer.

911. I do not think that you will hit your targets within your cost budgets. As the deputy permanent secretary said, we are entering a difficult financial period. The problem with such projects is that they start off with lofty ideals, which everyone thinks are great, but massive cost overruns appear. I want to ask whether we can be sure that the costs come in, but I am sure that we will talk about that in future.

912. The summary of the outline business case says:

“The group most affected by this change will be senior management … where 44% of posts will go."

913. However, data in the outline business case shows that senior management accounts for only £1·8 million of the annual savings, whereas middle-management professions account for £10 million and supervisory management comprises £6 million. Therefore, the totals are £16 million compared with £1·8 million. The real cuts will be to middle and supervisory management, who are the real workhorses, heroes and Trojans. If you cannot make your systems work better, I am concerned that no people will be left to run the organisation and chaos could ensue.

914. Mr Boyd: I accept Mr McCrea’s comments and genuine concerns. In percentage terms, senior management will receive the biggest hit. When we move from six finance departments to a single finance department and from 34 or 35 payrolls to two payrolls, the need for supervision and middle management will disappear.

915. Mr B McCrea: I do not want to labour the point, as the Chairperson has been indulging me, but you are trying to make changes in two to three years, yet determining how to amalgamate those systems properly is a heroic challenge. If you do not get it right, Mr McGrath will have problems with his budgets.

916. Mr McGrath: The outline business case is a robust piece of work. Basil mentioned implementation and change, and we discussed IT. Examples have shown that assumptions do not necessarily guarantee delivery. That is the test. In my experience, there is more investment in the front end of this case than during other organisational changes. The rigour of the outline business case will be applied, and elements of it operate on a worst-possible-cost scenario rather than one of best possible costs. Therefore, some of figures on top-end costs are based on the assumption that everyone who leaves will be in the most highly paid category, which would generate the required level of net savings. We can tackle that issue during discussion of the outline business case.

917. Mr Poots: Unlike my colleague Mr McCrea, I do not think that the proposals go far enough, and I support greater rationalisation. Children are, ultimately, most important to education, and it is teachers and classroom assistants who have the most contact with children. Teachers constantly tell me that the implementation of changes and new initiatives is absorbing more and more time and that they spend too much time writing reports for administrators to check. When will teachers be allowed to concentrate on teaching children? The initiatives make changes that do not necessarily significantly and demonstrably improve teaching. Change is well and good, but it must be change for the better. We are not against change. When will teachers be allowed to stay in the classrooms and educate children? If that were the case, significantly less administration would, perhaps, be required.

918. Mr McGrath: Nelson raised the issue of underachievement. The Department believes that the key to tackling that issue is improving the quality of teaching and, therefore, investing in the teaching workforce. Teachers should spend more time teaching; we do not disagree on that. As Gavin said, the model for the future will give schools more freedom on issues of professional development and will enable them to decide what sources to use to invest in their workforce. Again, we agree on that point. However, we undoubtedly expect future efficiency savings from the £2 billion education budget, which is a significant amount of money.

919. Ideally, that should come out of the non-school element. However, that means taking a fair chunk of savings out of £600 million or £700 million rather than £2 billion. That will be the challenge. We made the point that we start with the outline business case. We see the ESA as a vehicle to get the rationalisation of support services and to generate efficiencies, either to meet efficiency savings requirements in the centre — as agreed by the Executive — or, ideally, to go into the front line. That is the agenda. Twenty million pounds a year is there for the taking — it is almost in the bank. Mr Poots’s points are well made with us.

920. Mr Poots: To take the matter a little further, many of those who are employed have to justify the work that they do and that is where much of this change comes from. Teachers are not opposed to many of the proposals and ideas, but they get swamped with the numbers that come forward at the same time. Ten years ago, teachers had nothing like this to contend with. Now, however, they are being dragged out of the classrooms, the children are not getting the best out of their teachers and principals, and, ultimately, we are paying for that as it requires more administration. That is why I feel that further cuts are needed.

921. Mr Boyd: That is exactly the sort of feedback that we have received from teachers, school principals and teachers’ unions. The underlying premise is that school improvement can be achieved only in the classroom; that can be done only if there is reliance on the expertise of the classroom teacher and the principal of the school. That leads to the inevitable conclusion that we must free up their time to allow them to get on with teaching.

922. I will give another reflection on how we have managed to introduce some technology into the classroom. The Committee will be aware of the integrated and administration control system (IACS) technology that we are using for literacy and numeracy. One of the attractions of the technology is that records become available automatically. The teacher does not have to mark or write up on the work: the records are held and we can measure a child’s performance year on year. We managed to get some 20,000 children through that assessment in the autumn. It was a huge technical achievement, and we will have 50,000 children going through the assessment next year. The use of such technology can greatly ease the burden on teachers. Quite apart from the administrative and initiative issues that have been highlighted, that is an area where we can ease the burden on teachers.

923. The Chairperson: Can we move on to the outline business case? I appreciate members’ indulgence. We have done reasonably well over the past few weeks in managing presentations.

924. Mr D Bradley: May I ask a question about the previous topic? The message that we were given at the beginning was that the ESA would provided savings that would be an added bonus to the education system. However, from what Mr McGrath said earlier, ESA savings will end up subsidising shortfalls in the budget. Therefore we will not see much benefit at all.

925. Mr McGrath: There is no such thing as a snapshot that gives us the fixed pressures and the fixed budget, and that if one gets savings out of the budget — which would be ideal — they can be invested in front-line services.

926. If inflation rises faster than the provision made in the Budget, if pay awards are given that are higher than expected, if there are job evaluations, those have to be dealt with from the quantum of money that is made available to us by the Executive. That can mean that the ideal of where you would like to invest your savings is overtaken by the urgency of where you have to put them.

927. Many of the pressures that we flag up with the Committee in our discussions on monitoring rounds are beyond our control; few of them are generated by the Department. However, they must be dealt with; people have to be paid, inflation has to be met, job evaluations and health-and-safety issues have to be dealt with. That may mean that the “must" issues consume resources rather than the “desirable" issues.

928. Those issues enhance the need to introduce a more efficient administrative system that can squeeze savings out in the overall management structure from day one, and will provide a vehicle to challenge the support services over time to generate more savings. Everything that the Finance Minister said the other day suggests that efficiency savings of at least 3% — the First Minister recently mentioned a level of 3·5% — are here to stay. The education budget is the second largest chunk of the Northern Ireland block. Although it is desirable that it should be excused some level of efficiency savings, it is unlikely.

929. Therefore we need mechanisms to meet most of that 3% or 3·5% over time by way of genuine back-office support service efficiencies; we should not make efficiencies from front-line services. The fact that the resource position is becoming more challenging strengthens the case for administrative reform and efficiencies.

930. The Chairperson: I would like to move on to the outline business case.

931. Mr McGrath: The outline business case was submitted to the Department of Finance and Personnel late last year and was duly approved by it in December. It was made available when the Minister introduced the Education Bill, and it has been available on the Department’s website.

932. It is a robust piece of work that validates the case for the ESA as an organisation and which provides a vehicle to improve schools and to reduce the gap in attainment levels. It also provides a benchmark against which the work that Gavin and the Department will be doing can be measured. That will be to the particular benefit of the Committee and the wider community in future.

933. The outline business case evidences that from the outset there are significant savings of approximately £20 million a year to be garnered against an investment of up to £45 million. It would therefore pay for itself in three years — possibly sooner — depending on the initial costs. One of the advantages of having a prolonged period before the ESA is established is that more preparatory work has been done on organisational changes and how they could be achieved. That should avoid some of the other organisational mistakes to which Basil referred.

934. We will use the outline business case as a benchmark against which we will measure Gavin’s performance in the early years of the ESA. It is likely that the Department will look for further savings in senior staffing structures above those set out in the outline business case as the organisation beds down.

935. The Chairperson: This is an outline business case. When is the full business case likely to be finalised? The outline business case was finalised in April 2008, so it did not reflect the regional/local functional split. Could the outcomes of your work on that split radically change the number and level of staff projected in the outline business case as possible reductions?

936. Mr McGrath: First, we want the full business case to be available by the summer. It will underpin and validate the level of savings that are predicated in the outline business case, although some fine-tuning is necessary to develop the precise organisational structure. However, the overall envelope of senior posts around which this was based can accommodate the types of structures that we spoke of putting in place at local level and the degree of senior staffing associated with that. We do not believe that such thinking will undermine the fundamentals of the outline business case.

937. Mr Boyd: I cannot add to that. I simply reinforce the point that all our work to date has been within the envelope of the outline business case. Since April, nothing that we have done or turned up has made us reconsider whether we can achieve the targets set out in the outline business case.

938. I recognise that additional pressures might arise down the line, and I am conscious of Edwin’s comments about such possibilities. However, nothing that we have done in the intervening period has undermined any aspect of the outline business case.

939. The Chairperson: Earlier, we heard about the three levels of the transfer services. You said that transfer services will be subject to a medium-term review and that the innovative service will be subject to radical change. In giving evidence to the Committee, representatives and chief executives of the education and library boards said that the transform services are already subject to a three-board or five-board shared delivery and, in some of those service arrangements, a lead board. Where will the savings come from in the outline business case?

940. Mr Boyd: The number of shared services is relatively small; one example is the board of legal service, which is a single service housed in one board. Most of the big services — finance, human resources, and other support services — are on each board. Therefore savings will be driven out of that. The big savings will come from back-office services such as finance and human resources and other big services.

941. The Chairperson: That is outside the in-scope costs. The Department has identified approximately £1·3 billion that is out of scope of the RPA. Therefore we are talking about —

942. Mr Boyd: We are talking about £135 million, which relates specifically to costs involving 4,150 staff. We focused our efficiency modelling on a fairly narrow sliver.

943. Mr McCausland: Reducing the number of initiatives is a key area in which savings in the educational sector can be made. Rationalisation and the further mainstreaming of services would benefit schools and remove a huge amount of administration. Major savings can be made in that area. A key element of the outline business case is saving money.

944. What would be the difference in the savings made through the rationalisation of administration and those made through the rationalisation of educational initiatives? Have you done any work to see how those differences would stack up against each other?

945. Mr McGrath: You are quite right, as was Edwin when he made the point about teachers and new initiatives. Initiatives, even if money is granted, still distract from the core task. The key issue is the standard of teaching: we must let teachers teach. To a certain extent, we must keep it simple and not distract teachers with a plethora of initiatives, although many of them are important.

946. We are examining the number of earmarked budgets that we have. There are two issues. First, do we need so many initiatives? Initiatives complicate the position throughout the system and complicate the situation with teachers.

947. Earmarked budgets also add to the Department’s administration costs. We are also asking whether some of the earmarked budgets are past their sell-by date. We are questioning whether we need an earmarked budget for certain things or whether the money could be redeployed into the common funding formula. We will come back to the Committee on that.

948. We have not quite been able to do the de-sizing that you talked about, although we regard the savings as one slice of that. It is an interesting debate. On the one hand, there is a view that further savings may be gained beyond those outlined in the business case, and that may happen over time. There is another, equally merited, view that asks how we know that we will get those savings — other exercises have not demonstrated such savings in the past.

949. We are taking a robust but measured approach. Over the two or three years at the start of the ESA, that level of saving can be taken out of the £135 million. That is the starting point for savings; it is not where we are ending.

950. Mr Boyd: I have made the point before that bureaucracies breed bureaucracy. Bureaucrats, like me, think of more and more things to do. That is why we must refocus on the model every so often. In this case, the model is about schools, teachers, children and school principals.

951. There is an argument that once the focus is kept on the model, it challenges an organisation to consider — every day, every week and every year — why any money at all is being spent at the centre and whether it absolutely must be spent. That is not a criticism of what has gone before; it is a challenge that, in my experience, an organisation must set itself every year to make sure that it does not just grow and grow. It is important to keep thinking of the next good idea.

952. Mr McCausland: Is there a point when you will get a figure for the potential saving that can be made by rationalising all those initiatives?

953. Mr McGrath: The Department will consider that, simply because we face severe resource constraints to allow it to do what it needs to do in the future. The combination of reducing some earmarked budgets at the same time as we move into the ESA might make it difficult to determine cause and effect from savings.

954. Mr Boyd: The Department has developed the Every School a Good School policy, which sets outs what is expected from schools, and everything follows from that. It makes schools’ objectives and focus clearer and, in itself, will lead to a rationalisation of initiatives.

955. Mr McCausland: I was really asking whether you know how many people are employed in administering all those initiatives and how much teacher time they involve. That should be fairly easy to work out — for example, there may be 49 secretaries and administrators working on them.

956. Mr McGrath: I do not know that because there are not many people in the Department whose sole job is to work on such initiatives; nor am I clear how many people work on them in the education boards. I agree that we should consider simplifying initiatives, redirecting funding into mainstream funding and taking out as many savings from that as we can. That will lead to a simpler world, which we are already reaching, in which the agenda is to raise standards and reduce the gap in attainment. To reach that, we must invest in the wider education workforce, improve the infrastructure and streamline the management of the education service.

957. Mr Boyd: We got the detailed analysis of the current situation. Between the Curriculum Advisory and Support Services, C2K, the curriculum part of the Council for the Curriculum, Examinations and Assessment, the Regional Training Unit, and the advisory part of the Council for Catholic Maintained Schools, we have 750 staff at the centre. That is 750 people who you might otherwise call professional staff, which is a significant number in anybody’s book.

958. Mr Poots: I note the £20 million savings and the £700 million budget. That coincides with the 3% administration saving that we are supposed to be making. However, a 3% efficiency saving is required from all Departments. Therefore if the £20 million equals the 3% saving from the £700 million, a 3% saving must still be made on the remaining £1·3 million.

959. I do not accept John’s views that that is the beginning of savings, because ultimately £60 million of efficiency savings must be made from the Department of Education’s budget. If only £20 million is being saved from administration, the other £40 million has to be saved from front-line services. That is unacceptable. We have to sharpen the knife and return to consider cuts in administration. Rather than make the savings in five or 10 years’ time, those efficiency savings must be made over the next two or three years. It is fair enough as far as it goes, but it does not go far enough.

960. Mr McGrath: I think that we agree on that. The point was made earlier that the ESA is seen as a vehicle to further challenge the basic infrastructure in order to make the savings that the centre will expect from us and, as far as possible, to protect front-line services. If that is not done, some of the efficiency-savings targets will affect the front line because of the sheer scale of the budget. That is the challenge.

961. The point was made last week that the current level of efficiency savings has meant that some money had to be taken from the schools’ budget, because there was nowhere else to take it from. We need a vehicle that will allow us, over time, in the next three to five or 10 years to challenge the system and to squeeze it further and further. If savings are not made from the support structure, they will have to be made from front-line services. That will mean that difficult issues may arise down the line, involving how services are to be provided, the balance between central and local contracts, the centralisation of back-office functions, and perhaps even outsourcing. To take Edwin’s point, we must test every option in order to protect funding for the front line.

962. Mr Poots: If I was in the witnesses’ position, I would ask: where do we start from? I do not think that they would be starting from the present position; they would scale even further back. Where would the Department start from if it had a clean sheet? That is where it could make significant savings. It is not good enough that for every £1 of the £2 billion budget spent in the classroom, £1 is spent on administrative support.

963. Mr Boyd: At a previous meeting with the Committee I got into a little bit of bother by identifying some systems that we have considered elsewhere in the world, where 80% of the budget is allocated to the school or the classroom. For the avoidance of doubt, I am not saying that we can do that overnight, but we have looked at systems where that has been achieved. The counterbalance is that there is a fairly healthy scepticism around the table about whether we can deliver the savings that we are talking about. I recognise that.

964. Mr Poots: That is just Basil; do not worry.

965. Mr Boyd: I have to be careful not to over-commit, either to the Committee, to the Minister or to the Department, because this is an important issue. I have to manage in the context that we find ourselves in. The education system is part of the public sector, and we operate within the existing contracts of employment. I understand precisely your points and am keen to hear directions from the Committee on the general line that should be taken; however, I must balance that with what I believe is possible in the short term. We are only talking about the first three years.

966. Mr McGrath: It is important that £1·3 billion of the £2 billion budget goes directly to schools. The balance includes the capital budget — which is another £200 million to £300 million — and there is also funding for the youth services and special education. However, the balance between spending on the front line and spending on administration is not 2:1.

967. Mr Poots: The entire budget for a school is not all for teaching; it also covers administration.

968. Mr McGrath: I am aware of that. On the other hand, some of the earmarked budgets are not part of that budget, but they go to schools. It might be useful, if, in a financial discussion at the Committee, we were to try to get a clearer picture about how much of the budget goes to the front line, directly or indirectly, and how much goes to administration. I do not think that the ratio is 2:1, which would mean that a third of the budget is spent on administration. However, it could be that the ratio is 80:20; it is important to analyse that and pin it down.

969. Mr Boyd: To give a simple example, the Department spends £85 million a year on transport; our kids travel 1·5 million miles a day going to school. That figure is reached as the result of various policy decisions. In addition, the Department is locked into allocating between £37 million and £38 million to Translink, on which there is very little negotiation — Translink has to make a return. With a different policy perspective different outcomes might be possible, but those are big issues that require serious consideration, as serious amounts of money are involved.

970. The Chairperson: John, when you are back next week, we may talk about financial matters. I wonder how many pupils use their Translink bus pass every day in comparison with the cost to the Department of covering it. There is no way of monitoring use of bus passes for a set period. For example, my daughter does not use her bus pass every day because she sometimes has other ways of getting to school. Such issues are practical realities, and money can be saved in that area. A huge amount of money is spent on travelling to school.

971. Mr Boyd: The Department has targeted £135 million from which to save £20 million. There are several big issues — you have just mentioned one — that we have not considered seriously because we have not had the opportunity to do so. I imagine that you will encourage us to do that quickly.

972. Mr McCausland: If children are to be bussed in future in order to get the socio-economic mix that the Minister wants in the secondary sector, the bill for buses will go through the roof. I mention that now by saying that it will not happen.

973. Mr Lunn: Before he left, Basil talked about the severance costs and the rules for early retirement. Will the ESA take over responsibility for the operation of all pension schemes, ideally on 1 April 2009?

974. Mr Boyd: The single employing authority will take responsibility for all staff. The vast majority of staff are members of the Northern Ireland Local Government Officers’ Scheme (NILGOS); a small number will be members of the Civil Service scheme and other schemes. The ESA will not take over the operation of the scheme, but it will take over the responsibilities.

975. Mr Lunn: Who will decide whether to continue to apply the early retirement factors, for instance? I note that three dates are set out for the reduction in the enhanced pension arrangements. Will that be the ESA’s responsibility?

976. Mr Boyd: That is a matter of policy. First, the pension scheme rules decide people’s entitlement. Secondly, the reference to that in the outline business case reflected the fact that the scheme’s rules had been changed to take account of the age-related discrimination legislation. Previously, people in the scheme who were over 50 were treated differently from people under 50. The scheme had to be changed, and it was to be wound out over a period of three years. That is now a matter for the Department of Education to clear with the Department of Finance and Personnel.

977. Mr McGrath: I can provide an update on that in the context of the wider RPA changes. The trades unions agreed a principle in the area of health.

978. The terms available to people who leave at the end of the process will be the same terms available to those who leave at the start; it should not change the package over a two- or three-year period. That principle should apply no less in the education sector, and colleagues in DCAL and in the Northern Ireland Library Authority are pursing the same changes there. We are dealing with DFP to ensure that the drop-down highlighted in the outline business case is drawn out longer and that it does not happen against that timescale in order to allow the review of public administration changes in education. Therefore, people who leave at the end of the process will be eligible to the same terms as those who leave earlier. Again, because of the robustness of the business case, it does not make any difference to the costs because we have assumed the highest level of cost anyway.

979. Mr Lunn: Have you noticed any disillusionment in the profession? Has there been an increase in requests for voluntary severance under what would appear to be slightly more advantageous terms at the moment than what they will get in a few months’ time?

980. Mr Boyd: No; we have not noticed an increase. I am not aware of any data on that, but the pension scheme has noticed a significant increase in the number of people inquiring about what their pension entitlements would be.

981. Furthermore, we have made it clear that any voluntary severance scheme would be targeted; in other words, it would depend on whether there was a continuing need for the job to be done. There is a need for educational psychologists and, if anything, that need is not being fully met. Therefore it is highly unlikely in those circumstances that a voluntary severance scheme would be available for educational psychologists. That is different from people who are working in positions that are at risk, so it will be a targeted scheme.

982. Mr Lunn: Will there be any difference in the treatment of those who are made compulsorily redundant and those who volunteer for redundancy?

983. Mr Boyd: It is a significant priority for us to avoid any element of compulsory redundancy. There is no requirement for compulsory redundancy, but the terms in the voluntary scheme are contractually binding; therefore they would also apply in a compulsory redundancy.

984. Mr O’Dowd: I have a comment rather than a question. I am concerned that Edwin is advocating that hundreds, if not thousands, of administrative posts should be dismissed from the education system. For various reasons, the economy cannot afford to lose hundreds or thousands of public-sector jobs.

985. Mr McCausland: Rubbish.

986. Mr O’Dowd: The economy cannot afford to lose them. The private sector is on its knees, and if we start dismantling the public sector, the economy will collapse.

987. Mr Poots: The money would be better spent in the classroom.

988. Mr O’Dowd: I will come to that point.

989. A £2 billion budget needs to be administered, no matter how it is done. If we divert a significant percentage of money into schools, it must be administered, which means that our principals and vice-principals will turn into accountants.

990. Mrs M Bradley: They have already turned into accountants.

991. Mr O’Dowd: They will need an administrative team around them. Therefore the money will not go directly into the classrooms; you are only fooling yourself by saying that. All you are doing is sacking thousands of workers to achieve a goal.

992. All services need to be examined closely. Thirty-five million pounds is spent on transport. I cannot let your comment go, Nelson, about the Minister looking to bus pupils to create a social mix. Every day, 4,000 pupils are bussed from north Down to various grammar schools. If those children attended local schools rather than being bussed from north Down, how much money would we save?

993. Mr McCausland: The Minister has no power to stop that.

994. Mr O’Dowd: As the days and weeks evolve we will see what happens, but I will not get into that argument now.

995. There is a £63 million budget for school meals. Perhaps that service could be provided more efficiently. We need to look at each area of our education system to consider whether the service is being delivered efficiently before sacking thousands of people simply because it looks good on a spreadsheet.

996. Mr D Bradley: Several costs are excluded, including the huge cost of rationalising the schools estate; five other cost areas are also excluded. Do those exclusions not invalidate the business case to some extent?

997. Mr Boyd: I go back to the point that I made earlier: we focused on what could and should be done quickly and on what was logical to do quickly. That process led us to the cost figure of between £135 million and £140 million and to the 4,100 staff that we anticipate reducing to about 3,600.

998. Other huge change programmes need to run in parallel with the business case, but this exercise did not consider those.

999. Mr D Bradley: Is this just a snapshot?

1000. Mr Boyd: It studied a very specific area of activity that we believe can be influenced very quickly, covering a three-year period.

1001. Mr D Bradley: How can you ensure that the model is dependable?

1002. Mr Boyd: I will address the issue from a slightly different perspective. John McGrath recently told the Committee that the change-management process is huge and will go on for many years. We must manage that process from an organisational perspective.

1003. I fully expect the Department to drive change from a policy perspective and from a perspective of controlling the budget. The Department will continue to drive us and pressurise the organisation to deliver the flip-round in the budget — in a planned way — that we are trying to achieve.

1004. Mr McGrath: We are trying to create an ESA that will provide leadership, raise standards and close the gap; it will also deliver efficiencies. The outline business case demonstrates that the organisation has an unfulfilled potential to demonstrate efficiencies. During the initial years, the preparatory work demonstrates that £20 million of savings is already in the bank. Further savings will be made as the organisation beds in.

1005. Not every public-sector organisational change has guaranteed savings from the very start — they are mostly aspirational, but the £20 million is guaranteed in a robust review. It can identify posts that could be removed without affecting the quality of service delivery. As time passes and the organisation beds down, it will tighten up and meet the challenges in relation to the support and back-office functions, which will generate the level of efficiency savings that may be needed simply to meet budgetary pressures. If those savings go to the front line, so much the better, but Gavin highlighted that money is tied up in various professional development areas. Those funds could be loosened up and made more available for school principals so that they can meet what they regard as the development needs of their teachers.

1006. Some efficiency savings go to the front line, but they do so in a very prescribed model. However, school principals should have a greater say in identifying the funds that they need to drive forward professional development in their schools. The role of the ESA is to help to support that. All our conversations with school principals have produced very positive responses to that model.

1007. Mr D Bradley: Are those six areas covered in the full business case?

1008. Mr McGrath: This cannot be a business case for the level of efficiency savings in the education sector for the next five years. It is a business case to justify the move from the present organisational model to the single organisation, and demonstrating that in so doing £20 million has already been saved and that a vehicle has been created to drive out further efficiencies.

1009. Mr D Bradley: There are other areas in which you do not yet know the costs or the possible benefits. Surely you should take those into account.

1010. Mr McGrath: There is a limit to which we can forecast the future. As we said, many pressures arose in the education budget of which we were not aware 12 or 15 months ago. We need a more efficient, tighter management-focus vehicle to cope with those challenges.

1011. Mr D Bradley: This document states that more detailed work needs to be done.

1012. Mr Boyd: We identify a major change programme and we identify a major price tag to go along with it; we then make a business case that sets out the benefits against the price tag. It is for the Minister to make a judgement against that.

1013. If there is a significant price tag when we move into other change programmes, departmental approval will be required; a business case will be required and it will have to go through DFP. That will be delivered when we get round to doing it. That is probably not a very satisfactory response, but it is the best that I can give you at this time.

1014. Mr Lunn: I hope that I get away with this question, Chairman: is the cost of the top management board of the ESA included?

1015. Mr Boyd: We are confident that the figures include everything that is associated with running the board.

1016. Mr Lunn: In an ideal world, if you were putting the board together, would you like to see the majority made up of local councillors?

1017. Mr McCausland: Perhaps you would prefer experts.

1018. Mr McGrath: As Gavin does not have that responsibility, it is invidious to ask him.

1019. The Chairperson: Page 41 of the business case concerns middle management and professions; however, we need a breakdown. The status quo is 762 staff, but option 4 is 579 staff; what is the breakdown in reductions between what we deem to be middle management and professionals?

1020. Mr Boyd: Typically, we use salary grades to identify staff; however, I cannot remember the particular classification of salaries. There are groups of professionals who, because of their professional qualifications and status, are paid at the equivalent level of middle management, which might be responsible for significant numbers of staff. I can get you more detail, but I do not have that information to hand.

1021. Mr McGrath: Do you mean how are the predicated reductions split between those two groups of staff?

1022. The Chairperson: Yes.

1023. Mr Boyd: I can get you that information.

1024. Mr McCausland: I think that John O’Dowd is being somewhat disingenuous — I use the word “disingenuous" because I am not allowed to use language any stronger than that. It is inappropriate and disingenuous to suggest that savings can be made in education without reducing the number of people employed. Salaries are the biggest cost. If we want to put the maximum amount of money into front-line services, that is where cuts have to be made. That may not go down well with some of John O’Dowd’s friends in the trades unions; however, that is the reality, and any attempt to evade that is window dressing to save face.

1025. Could we ask the Department to produce an assessment of how much money is spent — it may only be a guesstimate — on the administering, monitoring and servicing of all funding initiatives. We need to get some idea of the cost, not just for the Department but for schools. How much principals’ time is spent on that? A rough estimate would be helpful, as that is a major saving that could be made. I am keen to see that done. A guesstimate would give us some idea as to whether we should be putting more pressure on the Department to move in that regard.

1026. Over the years, the funding system has not been right. However, instead of fundamentally reviewing it, extra bits have been stuck on to deal with this and that, and we have ended up with a mishmash. An assessment is needed to establish how much the Department should be prioritising that. Principals want to see that, and that is how to get more money to them.

1027. The Chairperson: I realise now that you are referring to John O’Dowd; I thought, at first, that you meant John McGrath.

1028. Mr O’Dowd: Nelson is right; I am not saying that there should be no job losses in the education system. The ESA is about the delivery of an efficient education system, and that will involve job losses. My concern is his colleague’s comment:

“We have to sharpen the knife and return to consider cuts in administration". That should not always be the first port of call.

1029. Let us ensure that the £2 billion budget is spent efficiently. I have no doubt that, in future, Nelson will stand with the trades union movement, campaigning on their behalf against the Education Minister as he has in the past.

1030. The Chairperson: Both sides have aired their views on that.

1031. Mr D Bradley: Can we have some information additional to that on page 48 of the outline business case, which relates to the six areas that have been excluded? I want to know more about the indications of costs and benefits that might accrue from those areas.

1032. Mr Boyd: We will send you that.

1033. Mr McCausland: Please send us a guesstimate for the costs of initiatives.

1034. Mr McGrath: I am cautious. The member is asking us to trawl 1,250 schools and ask each principal to calculate the time that he spends dealing with certain initiatives, having to specify which initiative. That would add to the administrative burden on schools. I seriously doubt whether, when we add up the responses, we will obtain a meaningful figure.

1035. Mr McCausland: I admire John’s simplified view. As a civil servant, he can always find reasons why we should not do something; it must be a part of their training. One does not need to trouble 1,250 schools, as he well knows. We are asking for a guesstimate; we are not asking for a figure to the precise penny. How many people in his Department are administering initiatives?

1036. Mr McGrath: The Department is separate; I am nearly sure that the member said “each school". If you want to take three or four typical schools in each sector, we can do that.

1037. The Chairperson: The example that was brought to the PAC was the £40 million that was spent on numeracy and literacy. Teachers told us consistently that if the money that had been allocated for numeracy and literacy had been put into front-line services — teachers — there would have been a better outcome and the report that went to the PAC would not have been so critical. That is the kind of issue that Edwin and Nelson were driving at.

1038. We set aside a huge amount of money on a project that we hope will change the world. However, to achieve that we may use 80% of the money on administration but not change the outcome. Forty million pounds was spent on improving numeracy and literacy, but there was no change. Will we spend £12 million only to see no change?

1039. Mr McGrath: In future, as far as possible, we want to give unlabelled funding to schools and specify the standards that outcomes must meet. The more small pockets we have — and we have discussed this before — the more time is spent monitoring them than is spent on monitoring the vast bulk of the money. That is not conducive to positive outcomes. We want to take that direction in future. However, as I told the Committee previously, if we were to stop some of those earmarked budgets, there would be some interests arguing that we need a special fund for X or for Y. The largest chunk in the earmarked budget is the C2K budget, which we regard as important. Were we to do that, the Committee would have to recognise that certain narrow initiatives would be abandoned that some interests regard as important. Whereas a strategic approach that put all the money in, asked schools to deliver, and monitored them against outcomes would reduce the number of special initiatives. That is an approach that I would support; however, it is swings and roundabouts.

1040. Mrs M Bradley: Principals may be accountants, but they are also teachers, particularly in the primary sector. That must be taken into account.

1041. Mr D Bradley: My question is addressed to John and Catherine. What is the position of teachers who have applied for redundancy?

1042. Mr McGrath: The issue of teacher redundancies is difficult. Changes mean that the cost cannot fall on the scheme itself but must be met by employers. We flagged it up in the strategic stocktake — it was almost the biggest bid. However, that bid was linked with whether we wanted to pursue the rationalisation of schools through teacher redundancies. It is almost a question of investing to save.

1043. One of the major challenges that emerged from last week’s stocktake statement is that a lack of provision for premature retirement and redundancies next year may create significant problems. The question is how to strike a balance. We may return to the Committee before too long to tell it that the Minister proposes to carve out some money for redundancies and early retirements. It may be argued that that is not the most important or front-line need. Rationalisation is an important and a difficult issue.

1044. Ms Catherine Daly (Department of Education): John has covered the points well. The key issue is value for money, which is fundamental to any public expenditure decision. Early redundancy decisions must be taken in the context of value for money in individual cases, and that would be in the wider context of rationalisation or how redundancies benefit the system as a whole.

1045. Mr D Bradley: Is there a time frame for those plans?

1046. Mr McGrath: We want the resource proposals for next year; that is one of the proposals in the strategic stocktake. There is no funding available for it now, and it is one of the issues that we will discuss with the Minister.

1047. Mr D Bradley: What is the position of those who applied before the deadline in November 2008?

1048. Mr McGrath: I am not sure of their technical position. There may be issues if their applications fall into next year.

1049. Ms Daly: I do not know the exact timing of cases that are in train, Dominic; may we come back to the Committee on that?

1050. Mr D Bradley: Will you provide the Committee with a detailed update on the situation?

1051. Mr McGrath: Yes.

1052. The Chairperson: John and Catherine, thank you very much. That concludes the evidence session on the Education Bill.

4 February 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
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr John McGrath
Mr Chris Stewart

Department of Education

1053. The Chairperson (Mr Storey): I welcome again honorary members of the Committee for Education, John McGrath and Chris Stewart. Their presentation will be on the controlled estate.

1054. Mr Chris Stewart (Department of Education): Good morning, Chairperson and members. We are glad to be back. I am sure that the privilege of honorary membership does not extend to voting, so we will content ourselves with making presentations.

1055. Mr John McGrath (Department of Education): We are here for the tea and scones.

1056. The Chairperson: You are welcome to them.

1057. Mr Stewart: I am trying to give them up, so I will forego that pleasure. My presentation, which will be relatively brief, follows on from the previous session in which members discussed the proposals for representation and advocacy for the controlled sector.

1058. Today we propose to deal with the related issue of the ownership of the controlled estate. Members will be familiar with the underlying drivers and the rationale for the proposal in paper 20. It stems from concerns that were expressed by some members of the Committee and by other stakeholders about a perceived conflict of interest if the education and skills authority (ESA) were to own a group of schools.

1059. The paper sets out proposals for a separate body to take ownership of what are known as controlled schools. Members may ask in response to that proposal why there is a need for two bodies; why not simply combine the representative body and the ownership body in a single organisation? The answer lies in the policy decisions and requirements under which we must work. It is the Department’s view that ownership of the controlled estate must be on a statutory basis. It involves the stewardship of public assets worth some £2·3 billion; therefore we feel that the appropriate solution is for a statutory body to take ownership.

1060. However, the Department’s policy is also that all the representative bodies must be non-statutory and have no statutory functions in order to ensure equality for all sectors and all types of school. Thus the Department’s policy is that statutory and non-statutory functions cannot be combined in a single body and that there is a need for two organisations.

1061. However, as signalled in the paper, the Department recognises the need for close links between the representational body and the ownership body in the controlled sector; perhaps through joint chairmanship or some overlap of membership or perhaps through a statutory duty on the ownership body to consult the representative body about the discharge of its functions.

1062. Central to the role and functions of the ownership body is the ownership and stewardship of the assets in the controlled sector. The paper contains several potential additional functions that may be added to that body. Owners of schools tend to have a role in appointing governors, so it may be appropriate to consider whether the ownership body should have some role in appointing or suggesting some governors for controlled schools. However, I assure the Committee that that is quite separate from the ongoing role of the Transferor Representatives’ Council (TRC) in appointing governors and would not be at the expense of that role.

1063. The ownership body may also have a role in making development proposals, particularly in what I have termed a safety-net capacity. If there is an identified need for a school development in an area but for some reason there are no proposals to meet that need, the ownership body might be charged with making a proposal to plug the gap. That would be a last resort or safety-net function.

1064. The paper also sets out a possible longer-term vision for the controlled sector. That stems from the policy on accountable autonomy for schools. In future, some boards of governors of controlled schools may be able to take ownership of the physical assets of the school and thus achieve greater autonomy and provide a closer link between the school and the community that it serves. It should be stressed that that is a long-term vision, and no board of governors would be compelled to take on that role. Part of the role of the controlled schools ownership body might be to work with and support boards of governors to prepare them for taking on that responsibility if they wished to do so.

1065. The paper sets out options for the nature of the body and its accountability arrangements and identifies the Department’s preferred option: a statutory public authority. As I say, the Department’s view is that that is the only option that provides sufficient accountability and safeguards for this vital public asset base.

1066. The paper also deals with other important technical matters, mainly financial, notably the potential treatment of value added tax (VAT), stamp duty and land registry fees. I assure the Committee that we are talking to our colleagues in the Department of Finance and Personnel and the Treasury to minimise the potential effect of the transfer of assets on the Department’s budget and on the public purse.

1067. Ideally, if the first and second review of public administration Bills could be implemented at the same time, there could be a single transfer of assets from the education and library boards to the new controlled schools ownership body rather than two transfers of assets. However, that would involve extremely challenging timescales and could in no way be guaranteed.

1068. In previous sessions members asked us to return to the subject of the disposal of assets and the potential for inequality between sectors stemming from the rules on those disposals. Those rules are determined, and occasionally changed, by DFP and are based on the central principle that resources — the proceeds of the disposal of assets — are returned to the centre for reallocation according to assessed need and determined priority. The minor exception to that at present is that education and library boards are permitted to retain a small proportion in order to encourage them to dispose of surplus assets. Most proceeds are returned for reallocation. It is through that principle that equality will be ensured because resources will be reallocated according to objectively assessed need. The same will apply to other sectors for which there are clawback arrangements that are applied when assets that are funded by capital grants are disposed of.

1069. From time to time, members have suggested that the proceeds of asset disposal ought to be hypothecated or ring-fenced to the sectors or areas where the disposal occurred. However, that would be extremely problematic. It must be borne in mind that the proceeds of an asset disposal do not in any way constitute extra moneys for the Department of Education; they are netted off its capital allocation. Therefore hypothecation or ring-fencing would lock a significant proportion of the Department’s resources into historical patterns of provision when the assessment of need may in fact suggest the need for a different pattern of resource allocation. Ring-fencing might thus make it more difficult to achieve equality.

1070. The Department is particularly concerned that ring-fencing could seriously distort the area-planning process. Area planning will be based on the objective assessment of need and determination of priorities and the allocation of resources accordingly. In the current financial climate, that will inevitably involve making difficult choices between competing demands. It is difficult to see how that process could operate fairly and effectively if it were to be constrained by historical patterns of distribution of resources. For those reasons, we do not propose the ring-fencing of the disposal of assets.

1071. That is a brief summary of what is quite a technical section of the paper. We welcome the views of the Committee because the paper is out for consultation. We will, of course, bring it back to the Committee when the consultation finishes, and we will be happy to answer members’ questions.

1072. The Chairperson: Several issues arise from the paper and its reference to the controlled estate. You referred to one of them — the Committee has had a concern for a considerable time about the equity in how assets are disposed of and the money distributed. Legislation on capital grants was enacted in 1974 or 1977. My understanding was that a non-controlled or maintained school that applied for capital works raised the money, did the work, and then applied for a capital grant, which was paid back to the trustees. State money is given to a privately owned organisation.

1073. If, due to having become surplus to requirements or demographic decline, that estate is sold, not all the money returns to the Department. In fact, only a small percentage goes to the Department; most goes to the owners and trustees. How is that fair and equitable?

1074. The capital grant covers all the costs, yet the money recouped from the disposal of a controlled-sector asset goes to the board. You said earlier that money is distributed on an analysis of need in any sector, but there is no equality in how that is done. The Minister claims to want to ensure equality, so how will we address that glaring inequality?

1075. I read nothing in the paper that deals with that problem; indeed, I see that no work has been done to establish the group. January 2010 is still talked about as the date for the establishment of that group, but not everything is in place for that to be possible.

1076. I am also concerned by the paper’s reference to the ESA initially having ownership of the estate in 2010. That is unacceptable. Chris, you have said many times that the ESA cannot be the body that owns the estate. Nevertheless, this paper states that if the body is not established, the ESA will own the controlled-schools estate for a time.

1077. Mr Stewart: I will deal with your first concern and then return to your point about the timescale.

1078. The arrangements are as you describe with one important exception, which contains the reassurance that you seek. Clawback arrangements are included in the grant agreement for an asset funded by a capital grant. A proportion of the resources come back to the Department, and that proportion of resources would not be small, as you fear. The Department will get back what it put in, and that is why it is not flagged up significantly in the paper.

1079. We are satisfied that the continuation of the existing arrangements will ensure the equality that you seek. The Department would receive a significant proportion of the grant. The clawback arrangements for 100% publicly funded assets mean that the Department recoups what it puts in.

1080. The Chairperson: I want to tease out some further information. Does the Department have an analysis of how the disposal of assets in the maintained and controlled sectors has worked in practice in recent years? Is that the desired aim of the new arrangements or is that how it has been since the change to the capital-grants system?

1081. Mr Stewart: Both. There are some longstanding grant agreements, and, if we delve deep enough, I am sure that differences could be found in the precise clawback arrangements over time. Practices and the requirements of DFP have developed over the years; a grant agreement that is drawn up now may not be exactly the same as a grant agreement that was drawn up in 1974. Our clawback arrangements will be applied to all grants at present, whatever DFP’s requirements may be.

1082. Mr McGrath: In a sense, the proposals for the body do not affect the funding arrangements; they are separate. However, there is a view that the ESA should not own any of the estate because it would be the determinate of area planning. Eugene Rooney will be here later, and he can provide further insight into the operation of the capital grant and clawback arrangements that apply to voluntary grammars. In essence, however, we get back pro rata what we put in.

1083. The policy on disposals is governed from the centre, and, in the past couple of years, the CART report brought added impetus to that. As Chris said, the centre counts in expected receipts, which are included in our baseline figures. However, this year, we thought that we would get £30 million of receipts; our budget settlement envisaged that £15 million of that would go back to the centre, and we would keep £15 million. Our capital plans included the expectation that £15 million of disposals would come in and we would recycle them. As Chris said, disposals are not extra — they are built from at the beginning. The drop in the market over the past 24 months has had a significant effect on capital resources.

1084. If you begin to hypothecate, you might maintain investment only to the level of disposals, which would not be a fair way of meeting need. Eugene Rooney will expand on the capital grant and clawback arrangements later. If necessary, we can provide a paper on that specific arrangement, which is unaffected by the body for the controlled estate.

1085. The Chairperson: That would be useful. Will you speak about the timetable?

1086. Mr Stewart: Ideally, we would all like the controlled schools ownership body to be established by 1 January 2010, as it would mean a single transfer of assets rather than two. However, the RPA programme is based on the need for two Bills and the recognition that the timescale is extremely challenging for us. As we indicated in our policy memorandum papers, the target for the implementation of the second Bill is 1 January 2010, or 1 April 2010 if we need a fallback position. It may be 1 April, perhaps even later, before we can bring the controlled schools ownership body into being. However, we would like that period to be as short as possible.

1087. The ESA would be the owner of a group of schools. We recognise the difficulty and the concern in that, so it is in everyone’s interest to ensure that that period is as short as possible. However, we cannot guarantee the Committee that we could reduce it to zero.

1088. The Chairperson: Do we not run the risk of having the same concerns as the voluntary grammars in relation to the single employing authority? Do we not run the risk of the controlled sector saying exactly the same? If the estate is under the control and ownership of the ESA, the ESA will have the power to appoint boards of governors, and the functions that you outlined in the paper would be part of the body, which would be responsible for the controlled sector and under the control of the ESA. Therefore all the concerns that people have about the ESA will be realised in two sectors, that is, the voluntary grammar and the controlled sector, and that makes it even more difficult.

1089. Mr Stewart: There are two separate points. First, the ESA will appoint the bulk of governors in controlled schools because the community governors would be the largest category by far. Therefore, I do not think that that issue would change, no matter how things turn out.

1090. On the more fundamental concern, the issue is one of a perceived conflict of interests; we recognise and accept that. The issue is about the most robust and effective measure that we can take to reduce or manage that risk. If we can minimise the period in which the ESA owns those schools to a matter of months, the risk becomes extremely small.

1091. It still exists, and stakeholders may continue to have a negative perception of it. However, I am not certain that it is practicable for us to go any further than that.

1092. Mr McGrath: The critical issue will be the perception that the ESA might somehow be more partial in determining decisions on capital expenditure.

1093. The Chairperson: From others?

1094. Mr McGrath: Yes. The period of ownership would be as limited as possible. First, there will be a spotlight on the ESA to demonstrate that it was doing nothing that might reflect partiality. Secondly, it is unlikely that significant capital decisions would be taken in that period unless they were already in the pipeline. In those circumstances, the scope for something going awry in that limited period is very limited.

1095. Mr O’Dowd: Can you clarify DFP’s involvement or guidelines on the matter? Who will own the voluntary grammar-school sector estate? If it is owned by a group of trustees or individual schools, what mechanism will ensure that public money is secured for capital expenditure?

1096. Mr Stewart: The second question is perhaps more easily answered than the first. With the exception of controlled schools, nothing in the RPA will change the ownership of schools of any type. In the voluntary-grammar sector, schools will continue to be owned by the trustees or, in some cases, by the boards of governors. In every case in which a school is funded through a capital grant, there is a formal grant agreement that is signed by the Department and by the owners of the school. That includes the clawback arrangements that ensure that in the event of the asset being disposed of if it is no longer required, the Department gets back what it put in.

1097. Perhaps the most important point about the DFP rules is that not all the proceeds of asset disposal come to the Department of Education; some are retained at the centre by DFP for allocation to Departments according to a central assessment of priorities. Those rules change from time to time, but the core principle remains the same: assets are returned to the centre and reallocated on the basis of objective and assessed need.

1098. Mr B McCrea: Following on from that point, there is concern among voluntary grammar schools and others that the ESA will take control of their estate in some way.

1099. Mr McGrath: As Chris said, there is nothing in the proposals that affects voluntary grammar schools’ ownership of their estate.

1100. Mr B McCrea: That is OK; I just wanted to hear you say it twice. However, the nub of the concern is the failure to recognise the blatant inequality — the inequity — that, some time ago, the transferors gave up their schools for the public good and now feel that they are being disadvantaged. The issue appears similar to land that was vested for public use and which is no longer required; therefore, under vesting regulations, it was offered to the people who originally owned it. I think that you are going headlong down the path of centralised ownership, which means that the voluntary grammar sector and the Council for Catholic Maintained Schools have a perceived advantage over the controlled sector. I do not think that that has been tackled.

1101. Mr McGrath: There is an important difference between the transferors handing over their assets for what, at the time, they regarded as good reasons and a vesting process whereby the state decides, for the greater good, to take ownership of a property, notwithstanding the owner’s views. Therefore it is appropriate that if that public need ceases, the previous owners should, in certain cases, have first refusal on getting the property back.

1102. There are differences between the two cases.

1103. Mr Stewart: There is another important technical consideration. The rules come from the Crichel Down case: where there has been compulsory acquisition of an asset that is subsequently disposed of, that asset is offered to the original owners for sale. I am not certain that the Churches have expressed an interest in buying back the schools that they handed over to the state.

1104. Mr B McCrea: I am not suggesting that they have; it is I who am suggesting it. It is a basic inequality that some sectors are perceived as retaining estate control. Your paper states that there are advantages and disadvantages. However, a significant sector has, I have been told, been raped and pillaged over the years. I do not suppose that there is much point in going on about it other than to impress upon you that I do not think that your paper or your proposals address that perceived hurt and inequality. You have not made the necessary inroads. After the Committee’s last meeting, I spoke to representatives of the TRC, who said that they are still not happy.

1105. Mr McGrath: In a guarded way, may I ask for a definition of rape and pillage?

1106. Mr B McCrea: There was a perception that the controlled sector took the brunt of school closures because that was easier. I do not know whether that is right or not, but it is a perception. One of the reasons for building up a representative sectoral body is to address that issue. There is a perception that the controlled sector is the poor relation.

1107. Mr McGrath: There is that perception, which is outwith the ownership of schools. There are issues of achievement in some areas. There is an equal perception that CCMS has done more to drive forward closure and rationalisation than the controlled sector has. In other areas, there may be a perception that the controlled sector has not driven forward rationalisation linked to quality, and indeed has resisted that. However, those perceptions are important and must be dealt with.

1108. This body has been set up because there is a perception that it would be inappropriate for the ESA to own the estate. That does not solve the issue of how one would demonstrate that future investment and rationalisational proposals are dealt with equitably. It may be a necessity, but it is not a sufficiency. The ESA will still face the issue that we have now. There are perceptions that one sector does better than another, that investment is not fairly targeted, and that disposals are not recycled properly. Those issues will simply not disappear, which is why we need a process built round area-based planning to take a proper, more deterministic way to meet need and to channel investment. Those are building blocks, but they do not deal with the core issue. The issues of whether there is a controlled estate body, whether the ESA owns it, where future investment goes, and what the pattern of schools will be, still need to be determined. That is why we are looking to area-based planning as the keystone to deal with those issues. There are perceptions, Basil, but they work both ways.

1109. Mr B McCrea: In my attempt to be helpful and to show you where my representations come from, I must state that there is a hierarchy of needs. The process and the mechanism for deciding how to manage capital, for example, is two or three levels down; whereas the need to be treated fairly and equally — and the perception that one is being treated fairly — is at the highest level. If those levels are not right, all else fails. It does not matter how good the rules and processes are, if people think that they are working agin them, we have a problem.

1110. I am sorry if I am being unhelpful, but your paper does not address the perceived inequality and sense of hurt of the TRC and others about how their estate is being handled compared to other estates. It is a serious issue. I am sorry to be the harbinger of bad news.

1111. Mr Stewart: It is not at all unhelpful. We continue to talk to the TRC and others, and we register their concern. We want to continue to engage with them, and we are happy to consider suggestions or ideas. This is a paper for consultation to which they may wish to contribute in order to attempt to address those issues.

1112. We are conscious of the various perceptions and we take them seriously. Common to them all is that we have had an adversarial and competitive approach to the planning and delivery of the educational estate. In the case of winners or losers — or perceived winners or losers — the pattern of perception varies from time to time. The core of our policy is that we absolutely must move away from that. No sector or group of schools must perceive itself to be part of anything other than a fair, open and transparent process that is based on need. That is why we continue to place area-based planning at the centre.

1113. Mr McGrath: To reflect on previous discussions, we recognise that many controlled schools — perhaps controlled grammar schools — feel that the current arrangements have them operating in a command-and-control system when compared to their peers in other sectors. The arrangement that we propose is precisely to enable them to be more liberated and to have greater control of their destiny.

1114. We spoke previously about the aspirations of Ballyclare grammar or any other school — we must find another example, because it is unfair to keep singling out Ballyclare.

1115. The Chairperson: I am sure that you will have no difficulty there.

1116. Mr McGrath: Absolutely. You have referred to the aspirations of schools to move to greater autonomy, and Chris talked about the long-term vision. We want to create the capacity in these provisions for some of those controlled schools to migrate along a path where they might eventually own their own estate akin to the status of voluntary grammar schools. It would be a move towards greater autonomy. We recognise that, and Basil’s points are well made. We can deal with facts, but dealing with perceptions is more complex. That is one of the issues that we have to deal with.

1117. Mr B McCrea: There may be some mileage in fleshing out a route map for how the long-term vision might happen.

1118. Mr McGrath: Part of our thinking about autonomy was how schools could take ownership of their assets.

1119. Mr B McCrea: That is worth exploring.

1120. Mr Stewart: We may have undersold that notion in the paper and tried to sound cautious about it. I hope that we did not give the impression that we are reluctant to go down that path; it was simply an attempt to reflect the fact that, particularly in the controlled sector, one size does not fit all. Many schools in the controlled sector would be glad to go down that route as quickly as possible; others are unwilling to do that, as they quite happy with the present arrangements. Both positions are legitimate, and we want to allow space for both approaches in the policy that we develop.

1121. The Chairperson: We may return to that. Do you have a question, Michelle?

1122. Miss McIlveen: Oh, thank you. I did not think that I was going to be called so quickly.

1123. The Chairperson: Pay attention, please. Thank you. [Laughter.]

1124. Miss McIlveen: A couple of weeks ago, you discussed appointments to the working group. However, I do not remember your outlining the education and library boards’ role of nominating members.

1125. Mr McGrath: Are you referring to appointments to the working group that will conduct some initial work on the controlled sector support group?

1126. Miss McIlveen: Yes.

1127. Mr McGrath: The Department is seeking a group of interested individuals. That does not necessarily exclude board members of education and library boards or officials, given that many people may be making a career move and may not be interested in membership of that group. It is not a representation, because it will not be a statutory body; we are seeking volunteerism as opposed to statutory representation.

1128. Miss McIlveen: If you are appointing, nominating or, in this instance, shoulder-tapping to appoint members, I am concerned that when that body is established, its membership will decide who is on the board. Furthermore, there is a possibility of appointing joint chairpersons to the ownership board.

1129. Point 26 states:

“DE should have the right to appoint the members of the ownership organisation in accordance with OCPANI principles;"

1130. Can you expand on that?

1131. Mr Stewart: In the interest of creating a coherent approach for the controlled sector, it is desirable at least to explore the scope for linking a few bodies. We will have to explore the extent to which the law and guidelines from the Commissioner for Public Appointments allow us to link those bodies. The ownership body must be a statutory non-departmental public body whose membership is appointed according to OCPANI rules with uppermost regard to the principle of merit.

1132. By contrast, the representative body will be a non-statutory body that will essentially determine its own governance and appointment arrangements, although the Department will have to agree to those arrangements. At the moment, I cannot explain in detail to what extent we can legitimately ensure an overlap or commonality of membership; however, the concept is worth exploring and would be beneficial. However, we will be constrained by the law.

1133. Miss McIlveen: I am concerned that the Department might use a heavy hand. We will have to consider that matter.

1134. Mr Stewart: The Department’s hand will be supporting.

1135. Miss McIlveen: That remains to be seen. Point 29 refers to VAT exemptions. When will you have that information? There is a huge cost of up to £700,000 a year to a school that has been built under PPP arrangements over the 25-year life of the contract.

1136. Mr Stewart: I will check that and come back to you. My colleague in the finance directorate Catherine Daly is actively pursuing that matter with the Department of Finance and Personnel. I do not know when we will receive an answer. We recognise the urgency of getting a response, and the outcome will be significant. We know the answer that we want, and we are emphasising to our colleagues the need to give us that answer.

1137. Miss McIlveen: We need that information. If we are conducting a spend-to-save for the ESA, there is another cost of which we have not been made aware.

1138. The Chairperson: Does DFP have the power to authorise VAT exemptions?

1139. Mr Stewart: No; DFP will take that issue up with the Treasury.

1140. The Chairperson: It is a Treasury issue. What if the Treasury says no? We have had difficulties in the past with VAT, and the controlled sector now faces an additional cost of £700,000 a year; that would be huge. Is that matter being pursued?

1141. Mr Stewart: Yes. If it became a reality, its effect would be profound. However, at this stage, our assessment of the likelihood of the risk is low. We hope to convince our colleagues in the Treasury — through DFP — that it constitutes, essentially, a technical transfer of assets among public authorities. That should not attract VAT or significant land registry fees; it would not be a sensible approach.

1142. The Chairperson: Has a business case been prepared?

1143. Mr Stewart: I am sure that that issue will be included in the development of the full business case for the RPA.

1144. Mr McGrath: The Treasury or, specifically, HM Revenue and Customs will rule on that matter. As the paper states, we sought confirmation that the ESA will have VAT exemption in the same way that education and library boards do.

1145. The test is pointing out to HMRC that it classifies those bodies according to a GB model. We have to point out that whereas local authorities run education in GB, the ESA and the education and library boards are the Northern Ireland equivalents and should be treated in the same way. The process is one of articulation and explanation. It is not necessarily swift, but we hope that it will be resolved satisfactorily; if not, significant issues will arise: we will have to ask whether the benefits of the body are sufficient to justify the significant cost that will fall on the education budget. I do not think that that cost would penalise controlled schools; the education budget would have to bear it on a broad back, and that is unpalatable. When we get the numbers sorted out and some progress made, we will inform the Committee. The issue will have a bearing on whether we want to follow this through to a conclusion.

1146. The Chairperson: Do we know whether DFP accepts the merits of the case? Has the Department of Education to convince DFP or draw up a business case for an exemption; or is the Department seeking VAT exemption for the ESA? Has the Department asked DFP for exemption, putting the onus on DFP to put the case in conjunction with it? DFP would then negotiate with HMRC and explain to it why the VAT exemption is necessary.

1147. Mr McGrath: That is the process. When such issues arise, and they often do, DFP tends to support the Department. The decisions are not in DFP’s gift; it is the conduit.

1148. Catherine will be here shortly, and she will give the Committee an update.

1149. Mr D Bradley: The situation that you outline in the paper is one where a school’s ownership body may be little more than a repository of the deeds; at other end of the scale, new voluntary schools could emerge. Point 20 reads:

“A possible long-term vision for the sector is one where the capacity of the staff and the governors of the majority of schools is developed to the point where the Board of Governors in each school is able and willing to become the legal owner of the school, thereby increasing the vested interest in the school."

1150. You said that that would lead to truly locally owned schools. Is that not a recipe for the break-up or fragmentation of the controlled sector? Would it not become more difficult to area-plan for that sector? Does that not defeat the point of having a unified organisation?

1151. Mr McGrath: The controlled sector is very diverse; in a sense, the only common theme that links those schools is that they are controlled; they include inner-city, rural, grammar and non-grammar schools. Previously in the Committee, we discussed the different aspirations of schools in the sector. I am not sure that trying to maintain rigidity about the sector formerly known as controlled is an objective.

1152. We want to promote as much autonomy as possible among schools in future. Some schools might see greater autonomy as a migration route towards control over their own affairs and ownership of their own estate. That would be a critical test, not just something that we would hand over willy-nilly. However, we would not regard it as inimical. Area-based planning will still be about determining the educational needs of an area and planning to meet them. Sector support groups will have an input to that, but they will not have a monopoly of wisdom or input to the process.

1153. The ESA will therefore be set up largely to deal with an element of the perceptions that exist. Neither my Minister nor I would regard it as a problem if the controlled sector shrank over time. If some schools took ownership of their own estate, it would gradually become redundant — rather like the “Carlsberg complaints department." I would regard that as a positive rather than a negative.

1154. I am not sure that preserving the controlled sector in aspic is a positive aspiration. Instead, we should encourage the various sectors to migrate to different places in future so that boundaries break down. Over time, the mix of sector-support groups may need to be redefined because schools have repositioned themselves.

1155. Mr D Bradley: I was going to make that point. If that sector becomes so fragmented, it will be very difficult for a sector-support body to represent the sector’s interests.

1156. Mr McGrath: That is a fair point, Dominic.

1157. Mr D Bradley: One could go one step further and question the point of the ESA.

1158. Mr McGrath: We have to work from where we are. We are talking about long-term migration — it may take some time for schools to move. We need a sector-support group because of the others that are in place. Not having a group will add to the sense of prejudice and inequality that Basil articulated.

1159. Over time, the sector could break down into different sub-sectors, such as an inner-city sector, a rural sector or even a geographical span. We would not have a fundamental issue with that; neither, however, would we want over-fragmentation. In addition, we would not want to take any more money from the front line for sector support.

1160. Mr Stewart: As John said, Dominic correctly identified the risk; at the same time, however, if the only thing that links or binds those schools is shared details of their ownership, I am not certain that it would be a terribly coherent sector anyway. As Dominic rightly said, the real challenge is for the controlled schools’ representative body because it will play a significant role in the area-planning process; not the ownership body, which will have little or no role.

1161. Interestingly, one of the early responses that we received to the consultation on the paper was from a principal of a controlled integrated school, which has a very close association with the Northern Ireland Council for Integrated Education (NICIE). The principal asked whether the school will belong to the controlled sector or the integrated sector in future. Our response is that that school can belong to the sector of its choice, to both sectors or to neither.

1162. Mr D Bradley: OK.

1163. Mr McCausland: Equality is a key issue; we want to ensure that there is equality across the sectors and equality for all children. I am sure that nobody would want to enshrine or embed anything inequitable in the new proposal.

1164. Will you confirm that the proposals will ensure full equality among all the sectoral bodies, including the ownership body and the support body? In other words, will the ownership body have the same rights, role and authority as the trustees of Catholic schools?

1165. Mr Stewart: That is our aim. However, the phrasing of your question leads me to believe that you are about to point to some aspect that you think is sub-optimal.

1166. Mr McCausland: I just want to put this matter on the record. Are you assuring us that there is equality of role, status and powers?

1167. Mr Stewart: Yes.

1168. Mr McCausland: OK. That is reassuring.

1169. Returning to an issue that Michelle McIlveen raised, point 26 states that

“DE should have the right to appoint the members of the ownership organisation in accordance with OCPANI principles;"

1170. Do those principles apply to the membership of the trustees’ body?

1171. Mr McGrath: No; they do not.

1172. Mr McCausland: Therefore there is not equality.

1173. Mr McGrath: Those assets are owned by the state, and the ownership organisation will be a statutory body.

1174. Mr McCausland: I know that. However, there are two sectors; in one, the Church appoints the trustees; in the other, the Department appoints the trustees. Is that correct?

1175. Mr McGrath: Yes. Voluntary grammar schools will have their own arrangements for appointing the members of their boards of governors.

1176. Mr McCausland: I might address voluntary grammar schools later, but I am more concerned about controlled schools at the moment. The OCPANI principles generally apply to public bodies that cater for the entire community in Northern Ireland.

1177. Mr Stewart: As do all public bodies.

1178. Mr McCausland: Yes, but that body will deal with schools that cater for nearly the entire unionist community and small numbers from other communities — it does not cater for all of Northern Ireland.

1179. Mr McGrath: The body will own the estate of a number of schools that cater for the community that you described.

1180. Mr McCausland: Yes, it will deal with a sector that caters for those communities.

1181. Mr McGrath: It will own the estate.

1182. Mr McCausland: Yes, I know that. Therefore in one case the Catholic Church appoints trustees; in the other, there is a system of appointment to create an ownership body that could not be representative or reflective of the community that those schools serve.

1183. Mr McGrath: There is a difference in ownership status: controlled schools are owned by the state, so even as we speak —

1184. Mr McCausland: I know that there is inequality, but we want to get away from that.

1185. Mr McGrath: There is a difference in ownership — assets in public ownership are subject to certain standards of governance and accountability that do not necessarily apply to the assets of other bodies that, despite operating in the public sphere, are essentially private organisations. The Committee would not expect us to dilute those principles. We are saying that we will create an ownership body that will own substantive public assets.

1186. Mr McCausland: How will you get a body whose membership represents or reflects the community that is educated in those schools?

1187. Mr McGrath: That is a fair point. We have work to do to define the criteria for membership of the body. Some of those criteria will have to include technical skills, because the body will own a great deal of property. Criteria will have to be drawn up so that the membership of the body understands the ethos and background of the controlled sector and the communities that the controlled sector serves. Those criteria will have to be built in.

1188. The way to get an overlap of membership is for people to apply. Despite Michelle McIlveen’s remarks, people have to apply for public appointments — we do not just tap people on the shoulder. The criteria for membership of the body will have to have guidelines woven in that cater for the point that you make.

1189. Mr McCausland: The document is going out for consultation without such criteria.

1190. Mr McGrath: That is a fair point.

1191. Mr McCausland: That is unfortunate, because it is a fundamental issue. Will the powers and authorities of the new body be the same as those of the trustees in the Catholic-maintained sector?

1192. Mr McGrath: Yes.

1193. Mr McCausland: I am also interested in pathways for the future; it is a pity that the issue was not dealt with more fully in the document. Before we go too far down that road, I can think of areas in which there are schools that might want the establishment of a smaller trust.

1194. For instance, some schools might want to be part of a smaller system for reasons of ethos or religion; I would like to see much more about that, because I am concerned about the situation. As I said before, a controlled school can transform itself into an integrated school, but an integrated school cannot transform itself into a controlled school. Those issues are of significant concern to the unionist community, and they must be tied down before any Bills come before the Assembly and before decisions are made.

1195. Mr McGrath: That is a good idea. It is a fair point, and I will come back to it. This paper covers a great deal, and perhaps we should have delved more into the process of appointing members of the body. We might come back to that. However, I accept that it might have been useful to make some reference to it in the public consultation.

1196. The pathways are an emergent policy. There is a view that there should be accountable autonomy: schools should have as much autonomy as possible to determine how they will meet improving standards of outcomes for children. They may wish to do different things with regard to employing staff, and previously we talked about giving schools more scope over securing professional development. Another strand that is highlighted is that, over time, we should create the potential for a pathway for some schools in the controlled sector that might aspire to owning their own estate eventually.

1197. That would be a long-term plan, because a school’s board of governors would have to be of a sufficient calibre to take that step. There are issues about the calibre of boards of governors across the board; it is an evolution. We want to explain how we see that emerging and happening over time, and we must ensure that the provisions that we put in place will create the potential for those developments as opposed to closing off potential. We think that those issues will materialise in the next five to 10 years rather than in the next two or three. It is evolution rather than revolution.

1198. Mr McCausland: The legislation relating to the Equality Commission or the Human Rights Commission — or both — states that their membership must be reflective or representative of the community that they serve.

1199. Mr Stewart: It is the Human Rights Commission. It is an extremely problematic piece of legislation.

1200. Mr McCausland: That may be so, but there is a precedent.

1201. Mr Stewart: There is a precedent, but one must remember that it is Westminster legislation.

1202. Mr McCausland: It is good practice for a public body to reflect the community that it serves. In the case of the Human Rights Commission, it reflects the whole of Northern Ireland. In the case that I have identified, the community that the school is serving should be reflected in the membership.

1203. Mr Stewart: It is an issue that could be explored. My reference to its being Westminster legislation was to draw your attention to section 6 of the Northern Ireland Act 1998, which determines the legislative competence of the Assembly. We would have to make sure that any formulation of words was capable of getting through that.

1204. Careful thought needs to be given to the extent to which we would want such a body to reflect the composition of the community served by schools or reflect the composition of the community of Northern Ireland that will, potentially, be served by all those schools. Do we want to reinforce or underpin the existing composition of the controlled-schools sector or not? I offer that as a question.

1205. John Mr McGrath said that that is not the only, or most important, factor, to be considered in arriving at the criteria for the membership of the ESA. Its role will be different from that of the representative body; its role, as Dominic said, is narrow and technical and centres on the stewardship of public assets that are worth £2·3 billion.

1206. The skills and competencies required for the stewardship of public assets worth £2·3 billion will be high on the list of criteria.

1207. Mr McCausland: I entirely agree with you regarding the competencies. However, on your previous question about a or b, I know which one I expect; that is an equality issue that you simply cannot avoid.

1208. Mr McGrath: It is an important point and, as Chris said, we must explore the extent to which certain things should be specified. It would also be appropriate to look for people who have an understanding of issues concerning the controlled sector, such as perception, which Basil mentioned. Those people do not necessarily have to be from a particular religious group; they could simply have the required knowledge and experience.

1209. It may be someone who has a good understanding that the controlled sector’s perceptions are real; however, it should not be a question of representation over understanding, experience and talent. Merit is central to all public appointments, and those appointed must be capable of doing the job that they are charged to do.

1210. Mr McCausland: My point, which I will not labour any further, is simply that people with skills of the highest calibre who can do the job should be appointed. It would be madness to give an insufficiently skilled body ownership of a stock of such high-value buildings. I have no doubt that there will be plenty of people with the necessary skills to choose from.

1211. However, in order to gain the confidence of the broad unionist community, and other communities whose children attend controlled schools, it is important that membership of the body is reflective and representative; and I emphasise those words. I may be able to understand many of the relevant issues, but it would be extremely impertinent for me to say that I could be representative.

1212. Mr Stewart: Nelson and other members expressed an interest in hearing more about the potential pathway for development. We have touched on several aspects in recent weeks that come under the broad umbrella of accountable autonomy. If the Committee would find it helpful, we will produce a paper to draw together some of those strands, including ownership, governance, our role in employment arrangements, and where we see the potential for greater autonomy.

1213. The Chairperson: The problem is that a paper has gone out for public consultation that alludes to but which does not address the issues that the Committee flagged up to the Department in January. It is not perceived inequality; it is inequality. I appreciate why someone in your position will say that it is perceived inequality, but it is inequality, and there will be serious implications if it is not addressed. The paper you suggest providing for the Committee, and the paper before us now, will be useful in teasing that out.

1214. Mrs O’Neill: The question that I was going to ask has, in effect, been answered. There needs to be a balance between stakeholders’ legitimate concerns and the associated costs. There seems to be a grey area concerning VAT, stamp duty and land-registry fees. At a time when budgets are stretched, we need know where we are going on this issue; I hope that we can get that information as soon as possible.

1215. The two-step transfer process is a massive upheaval for staff, who will have to move from education and library boards to the ESA and then to a new body.

1216. Mr McGrath

1217. A small number of staff will be affected; it will not be huge.

1218. Mr Stewart: The VAT issue is important. There is a further important point to make in order that we do not inadvertently mislead the Committee. The issue of VAT exemption first arose when the intention to establish the ESA was announced. The Treasury and HMRC will decide whether the VAT exemption that applies to the education and library boards will be carried forward to the ESA. It is inconceivable that its decision on any new body that takes ownership of controlled schools would differ from its decision on the ESA. In that sense, therefore, that part of the policy decision will not be affected. The decision of the Treasury and HMRC on VAT exemption will be good or bad, regardless of whether controlled schools are under separate ownership or under the ownership of the ESA.

1219. The land registry fees are a different matter that could, of course, be affected by the number of transfers that will have to take place.

1220. Mrs O’Neill: What about stamp duty?

1221. Mr Stewart: The same applies to stamp duty.

1222. The Chairperson: I would like clarification on the use of the word “pluralist" in paragraph 8:

“It is recognised that the education sector here remains pluralist."

1223. Are you referring to the controlled sector or to education in general as pluralist? Exactly what is meant by that?

1224. Mr Stewart: In the context of the sentence, pluralist refers to education generally and the fact that we continue to have sectors and schools of differing ethos and character. It is also true, although it is not implied in the sentence, that the controlled sector is perhaps more pluralist than the other sectors.

1225. The Chairperson: It is interesting to compare how the outlined purpose of the ESA stacks up with the Bill, which defines the general duties of the ESA in clause 2(2)(a):

“to contribute towards the spiritual, moral, cultural, social, intellectual and physical development".

1226. If every sector is pluralist, how can that be done?

1227. Mr Stewart: I am not sure that I understand the tension between the two.

1228. The Chairperson: Perhaps there is no tension; we will come back to that at another stage. I think that there is a contradiction between the two.

1229. Mr Stewart: You will have to assist me, Chairperson; I am afraid that I cannot see any contradiction.

1230. The Chairperson: I will return to that issue.

1231. Mr McCausland: It is unfortunate that the consultation process is under way without there being any clarity on those issues. In a sense, you are asking questions of people who do not have the necessary information to be able to answer them. That devalues the consultation, and it perhaps suggests to some people that the Department has not picked up on the public’s basic concerns. The issues that we are articulating today mirror the concerns of many in our community.

1232. Mr Stewart: I take your point. The consultation process is similar to dipping a toe in the water, and it is important to do that. A tension always exists between early consultation to ascertain the views of stakeholders and a later consultation when the proposals have been progressed to such an extent that the opportunity to influence them may have gone.

1233. The current consultation is not a question of take it or leave it; the Department wants to hear, reflect on and respond to stakeholders’ views. After reflection and drawing conclusions from the points that are raised during consultation, that response may be in the form of a more definitive policy proposal. I assure the Committee that the concerns raised during the consultation process will not be overlooked.

1234. The Chairperson: What is the next stage of the process? Will there be further consultation on finalised or emerging proposals?

1235. Mr Stewart: We will reflect on that in light of the available timescales. I am conscious of the fact that, from a pragmatic perspective, the Committee wants to see detailed proposals as quickly as possible. We will certainly bring back to the Committee and make available to stakeholders an analysis of the consultation responses received and what we propose to do with them.

1236. Miss McIlveen: Does that mean that none of those working groups will be set up until after the consultation has been completed?

1237. Mr McGrath: No; we want to proceed apace with that.

1238. Miss McIlveen: It says so in the consultation paper.

1239. Mr McGrath: No; this is a consultation with the ownership body — the sector support. There is an urgent need to make progress on that, and we want to get on with it.

1240. Mr Stewart: We are consulting on the paper. However, given the urgency, there are steps that we can take now without prejudicing the outcome of the consultation — we can gather ideas and suggestions as to which shoulders we might tap for the initial group without constraining what that group might do. However, that might change as a result of what comes back from the consultation.

1241. The Chairperson: Thank you very much, John and Chris.

11 February 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Miss Michelle McIlveen
Mr John O’Dowd
Mr Edwin Poots

Witnesses:

Mr Tom Flynn
Mr John McGrath
Mr Eugene Rooney
Mr Chris Stewart

Department of Education

1242. The Chairperson (Mr Storey): I welcome John McGrath, Chris Stewart, Eugene Rooney and Tom Flynn. Good morning, gentlemen. I remind members that this session is being covered by Hansard because it forms part of the scrutiny of the Education Bill.

1243. Today we will consider area-based planning, on which I am sure that members will have concerns and questions. I will ask John to speak to the Committee first.

1244. Mr John McGrath (Department of Education): Thank you, Chairman. We are grateful for the opportunity to be here on a Wednesday morning yet again to discuss area-based planning and to deal with the Committee’s queries. We have distributed papers to the Committee on the recent public consultation exercise on the draft policy paper on area-based planning; the paper identifies issues that were raised in the consultation. We have also distributed responses to the issues that Committee members raised on the draft policy as set out in the letter from the Committee Clerk dated 16 January. I propose to outline the key points in the papers before we take any questions.

1245. The rationale for area-based planning is set out in the policy paper. Fundamentally, it is about introducing a much more strategic planning process into the education service to ensure that children and young people can access and benefit from provision that best meets their needs and which makes the best use of resources. The objective is to bring better cohesion, consistency and co-ordination into planning in order to address the weaknesses that are increasingly evident in the current bottom-up system. The aim is to have much better alignment of provision to overall integrated needs.

1246. The policy paper went out to consultation last year. We received 34 written submissions, and colleagues met key stakeholders in the education sector.

1247. The list of respondents is included in the paper that was made available to the Committee. The consultation responses were broadly positive towards our approach, particularly the education and skills authority’s (ESA) having the lead responsibility for producing area plans, and also for the concept that area plans should, over time, cover a wide range of provision, including pre-school, primary, post-primary and youth provision.

1248. Some of the issues that were raised during the consultation are identified in the Committee’s briefing, and some relate to matters that the Committee raised previously. I will briefly deal with those in the order that is set out in appendix 3 of the briefing. The comments will be considered by the Minister, and our intention is that a revised draft policy paper that reflects her views will subsequently be issued to the Committee.

1249. A recurring theme in the responses was the roles and responsibilities of key stakeholders, and the Committee raised that issue in previous discussions. The consultation responses mainly concerned the respective roles of the ESA and the various sectoral interests of the schools. Some of the sectoral interests argued that they should have a more elevated role, while others sought further clarification on the policy statement. In addition, some felt that there should be no erosion of the envisaged role of the ESA, and others simply sought clarification of their involvement in the process.

1250. In consideration with the Minister, we aim to clarify roles in the review when we update and revise the policy paper. The review will stick to the core principle that the ESA will have the lead and the statutory role in producing draft area plans, including how the various interests can bring their influence to bear on the ESA in the production of those plans so that the process is as inclusive as possible.

1251. As well as setting policy and overall budgets, the Department will have a challenge-and-approve role in the area-planning process, including area plans and strategic investment plans. Under the review of public administration (RPA) changes, the ESA will have the statutory duty to produce area plans, and, as far as possible, it should seek agreement from stakeholders about the proposals in the plans. When the ESA cannot achieve such consensus, it should detail those issues in its submission to the Department. A lack of overall consensus is not necessarily a veto on the planning process.

1252. The Committee and some of the respondents raised the issue of community planning and its links with area-based planning. The Minister is keen that area-based planning links in with community planning as it develops under the RPA and local government; that will be reflected in the revised policy paper. That will clarify that the processes should link in with the proposed community planning model for the 11 new councils and that the ESA will have a duty to participate in the community planning process. Indeed, the Bain Report recommended that education planning should be related to planning in other areas; the advent of community planning is a mechanism to ensure that that happens.

1253. The Committee raised concerns about school sectoral consultations and development proposals in the period before area plans will be in place. As I said, under the RPA changes the ESA will have the statutory responsibility for putting in place area plans. In the interim, sector bodies may continue to undertake planning and consultation exercises within their own remits, but those will be superseded by the area plans. The existence of such proposals or plans in individual sectors will not be allowed to hamper the overall area-based planning process.

1254. Under existing legislation, the Department cannot prevent bodies and groups submitting development proposals. However, in advising on proposals, it takes into account the consistency of the proposal with the anticipated need for provision in an area. When area plans are in place, the draft policy paper points out that only those proposals that are consistent with the plan will be taken forward, and that there will be opportunities for sectors and groups to raise their proposals with the ESA as area plans are developed and reviewed.

1255. The Committee also raised the issue of club bank and area-based planning.

1256. When area plans are in place throughout the region, club-bank style arrangements should not be required because all schemes that have been approved as part of the planning process should have been appropriately funded from the outset. Some legacy schemes may still be operating at the beginning of the process, but the need for loans should diminish and become redundant as each of those schemes is completed.

1257. The Committee asked for an update on the post-primary exercise, concentrating on the entitlement framework. The framework is detailed in the briefing paper, and the exercise has a dedicated website, so I shall only select some of the highlights.

1258. The exercise sought submissions from interested parties, and 76 submissions, which are now being considered by the area groups, were received by the closing date at the end of last month. The central group has met on four occasions; it is due to meet again on 19 February 2009. Each area group has met several times, and all the groups meet in a forum.

1259. On 27 October 2008, the central group submitted an interim report to the Minister that highlighted all instances of positive engagement by sectors. A progress report from the central group is due to be with the Minister at the end of this month, and the group’s initial regional review report is due in May.

1260. Those are the substantive issues with respect to the current position. The next step will be to complete responses to all the matters that were raised during the consultation process and, in consultation with the Minister, to complete the revised policy paper. At that stage, we will bring the revised policy paper to the Committee.

1261. Although the drafting of the second Bill will be based on that agreed policy, we are keen to hear the Committee’s opinions and answer questions about the present state of work. Therefore, we stand ready to deal with any queries that members might wish to raise.

1262. The Chairperson: Thank you, John. The timescale of events concerning this matter and the way in which announcements were made are bewildering. In March and December 2008 the Minister made statements in the House setting out the work of the central group; we then had to wait to get the terms of reference. Eventually, the central group and the subgroups were up and running. How does that series of events fit in with implementing a final, full area plan, and, given that the entitlement framework is supposed to come together in 2013, is the Department planning to introduce any interim arrangements from 2010?

1263. I worry to hear you talk about a report coming out in May, as the central group has sent work back to the Department. What is the present situation, and, in light of the new statistics that have been gathered, how does the work on the area plan sit with the development proposals, about which we have been haranguing Eugene for weeks and months? We want to see progress on new builds; we want to see schools in place. What work is being done to bring all those factors together so that we do not end up in the same position as we did in the past on other matters? The process has been like a patchwork quilt with no joined-up approach.

1264. Mr McGrath: I was afraid that you would begin with such a complex question.

1265. The Chairperson: I am glad to fulfil your expectations.

1266. Mr McGrath: I said that I was afraid. [Laughter.] There are several strands involved. The post-primary entitlement framework is, in a sense, being taken forward as a non-statutory exercise, reflecting several matters that must be dealt with. Furthermore, that work will prepare the ground in the education service for the various sectors, informing them about the types of approach, behaviours and expectations that area-based planning will involve. Consequently, the work has taken longer than expected to reach this stage.

1267. This is the first time that such work has been undertaken in the education sector, and during the process significant lessons have been learned about what the various sectors can expect and about whether and on what basis they will participate. It has taken some time to get the process to where it is now, but much has been learned that will be relevant for the future. Any process can be technocratic and mechanistic; however, the behaviour and motives of the players in the process are equally important.

1268. It is a valuable introduction to the discipline and behaviour that a more strategic approach to planning will bring to the education sector; whereas, to date, there has been a locally based, bottom-up micro-system with no overview. That work is continuing and will provide a valuable back-drop.

1269. However, it is not a statutory basis for area-based planning; that will be in the second Bill, and the ESA will have the responsibility of putting in place a series of area-based plans that should, over time, cover the entire region. However, it will, undoubtedly, take time for a full set of area plans, covering not only school services but early-years and youth services, because we are moving from one spectrum to another. There will be a migration from where we are now, and we will have to work carefully to fine-tune the process of moving to the implementation of area-based plans.

1270. The determination of which plans should be initiated in the early days, as opposed to later, depends on various factors. Judgements will have to be made on whether there is stability of provision and whether there is consensus on that provision and whether there is a balance between provision and need. If the answer is yes, the judgement may be that a full area-based plan would not be needed until later.

1271. In some areas, and I am sure that we can think of some, there may be pressing issues about the state of investment or the imbalance between provision and need, or perhaps several proposals or issues about rationalisation need to be dealt with. The ESA should immediately identify those areas that require early work on area-based plans. The process of migration means that it will be some time after 2010 before the full pattern of area-based plans is complete.

1272. The Chairperson: The difficulty, John, is that the patchwork quilt will grow over coming years because if we allow sectors and organisations to continue to do what they have always done, which is to work within the parameters of their own legally defined silos, will we ever reach the point of completion?

1273. Some of us may question the need for the ESA. The probable rationale of the Department is that the ESA is required precisely because, to date, everyone has worked within their own legislative frameworks. Those frameworks have defined what they have been able to do, and that has not always reflected what is happening in other sectors. Realistically, however, that behaviour will continue for several years to come.

1274. Mr McGrath: It is recognised that a much more strategic approach to planning is required in the education sector. Even if the ESA were not to provide that, the consensus is that discipline must be introduced. Given that we are moving from a localised, bottom-up approach, which, in many cases, is based on provision rather than need and in which the providers are the drivers, it will be a long migration.

1275. However, we do not want a free for all to apply until there is almost a complete set of area plans; we want to prioritise where area plans should be put in place at an early date. That would put a stop to the diverse range of thoughts and proposals and provide a context in which to bring all of them together in one framework.

1276. We have an idea of the direction that we want to take in the various areas. There will, therefore, be a much heightened scrutiny of any proposals, and they will be set against the overall strategic context. At present, we cannot stop development proposals being made, and they must be considered and approved — or not; however, there is no automatic assumption that a development proposal must be agreed. Eugene may wish to add a few words because, to date, he has more scars on his back from development proposals than I have.

1277. We will want to look at that in context in order to address the perception that various interests may try to bring forward proposals in order to get them over the line before area-based planning is introduced. We must be very careful about that, because those plans will trigger decisions about capital investment for the next 25 to 30 years. Strategic decisions must be made in the right context; we cannot be bounced into making misguided decisions after a bit of strategic reflection.

1278. Mr Eugene Rooney (Department of Education): John has covered the points that are central to the ESA’s role in planning. The ESA will be taking over completed and partly completed work; it will be aware of investment proposals; it will take forward investment projects; it will have information, not least from the central planning group, whose work on how areas might be configured is due to be completed this year; and it will provide advice and analysis on development proposals. It will be two to three years before the ESA starts to make a significant contribution to putting all that together and in challenging plans that do not fit. From day one, areas that need to be looked at, proposals, and the existing investment programme that it will inherit, will be a priority for the ESA.

1279. The central planning group is unique in bringing together the different sectors to look at issues on an area level, and the five area groups are doing that at the moment. Valuable information will come out of those groups that can inform the process that the ESA is required to take up and deliver on. That material will be used to help to ensure that the planning process is as effective as it can be. It focuses primarily on post-primary schools, although, as John outlined, area planning covers primary, pre-primary and post-primary schools. That exercise will have an important input; however, the ESA will be expected to do much more.

1280. The Chairperson: John, you explained the issues that arose from the consultation. The Department anticipates that the revised policy paper will be available from the second week in March; it would be valuable for the Committee to see that. We would appreciate if you could come back then; this is an important area that must be resolved.

1281. Mr McGrath: Absolutely.

1282. The Chairperson: The Committee wants to understand exactly where the thinking is as we develop the details of the second Bill. On 4 March 2008, in her statement to the House about the timescale of post-primary area-based planning, the Minister of Education said that:

“This will be used to identify the structural change required for the delivery to every young person of election at 14 and the entitlement framework from 2013." — [Official Report, Vol 28, No 4, p186, col 1].

1283. Will area-based planning focus only on a young person’s election at 14; or, as many people would prefer, will it look at transfer at age 11 through to 19? It is not specific, and the concern is that area-based planning may be used for reasons other than considering the provision of need; the worry is that it may be used to change the debate around the transfer issue.

1284. Mr McGrath: The primary focus is on the entitlement framework. Some people think that area-based planning concerns only the physical estate, but the physical estate must reflect how the curriculum entitlement framework will be delivered. Area-based planning is not just about buildings, and that has been reflected in our language.

1285. The buildings flow from the pattern of services and the issues of critical mass and quality, not just bricks and mortar. We are likely to reflect that broader dimension to area-based planning in the revisions to the policy paper.

1286. Mr Tom Flynn (Department of Education): The exercise focuses on the 14 to 19 entitlement framework. Given the timescale, it also focuses on provision in the existing and planned estate; that is to say the projects that you have had details of from the investment delivery plan. We are talking about a short time.

1287. The post-primary exercise is submissions-based in that it elicits submissions from organisations and individuals. In that respect, it is not as broad or as pro-active an exercise as we would expect under full area-based planning with the ESA.

1288. The Chairperson: Is there any indication as to what the key elements in the Department’s revised policy paper would be following the consultation? Do you have any idea, at this stage, what would be put in place that would be different from the policy paper?

1289. Mr McGrath: First, we identified the issues that people raised; some people asked for clarification, so perhaps the paper is not entirely clear. One issue that we will emphasise is the relative roles of the ESA in area planning, and the various sectoral interests and sectoral support bodies. The latter represent their sector and provide their input, but the statutory responsibility — the responsibility for taking forward area planning — will rest with the ESA.

1290. The stakeholders, as in any public consultation exercise, will be the public at large, including, but not exclusively, sectoral interests. There are various issues that we want to clarify. Issues arise from area-based planning’s being about meeting overall education needs, and, through that, what the investment needs are, although it is not just about investment.

1291. There are issues about the mechanics of area planning groups in that we may have to examine who the key stakeholders are. At official level, we want to ensure that the advice that we submit reflects where we are now and some of the discussions that we have had with the Committee about how area-based planning fits with the role of sector groups.

1292. We spoke last week of the controlled estate body. There may be issues over whether it should have a role in the development proposals in future if no one else brings such proposals forward. There is an updating of thinking, but primarily it will concern the issues raised in the consultation paper. However, the discussion that we have started today is about where we will be on 1 January 2010 if we roll out area plans. The Committee will be interested in that. That may not be so much of an issue in the policy paper, but there is a query over how we move to the implementation of policy. I hope that when we come back to the Committee in March 2009, we will be able to fill in some of the gaps.

1293. Mr D Bradley: Good morning. Area-based planning will be an ongoing process because communities’ needs will evolve and change.

1294. A key element in that will be the sustainable schools policy. At the moment, there are six criteria by which the viability of schools is judged, and since no weighting is given any individual criterion, to all intents and purposes they are of equal value. How can you ensure that one area group does not value one criterion more highly than the rest, while another area group will value a different criterion more highly? How can you ensure even application of the policy across all areas?

1295. At the moment, we face an unregulated system. There will still be open enrolment at post-primary level, but we will not follow the policy envisaged by the Minister whereby most pupils will travel to their nearest local school. In order to area-plan, you must be able to contain pupils in an area; however, that will not be possible in an unregulated system. How can area-based planning operate in an unregulated system?

1296. We have already discussed my next point. The enrolment statistics of schools in Northern Ireland show that a huge number of small rural primary schools fail to meet the sustainability criterion of 105 pupils — some are well below it. Is that not a challenge? Should it not be included in your revised policy paper?

1297. A further point that I want to raise is related to the amalgamation of schools, although that may be Eugene Rooney’s area of expertise. Are there guidelines for amalgamation? Must amalgamating schools be of roughly similar size, give or take, say, 50 or 80 pupils? Will the sustainable schools policy be incorporated into your revised policy paper?

1298. Mr McGrath: The sustainable schools policy has been published. In area-based planning, we expect it to set some of the parameters. It does not need to be reflected; it is part of the context.

1299. Mr D Bradley: Will it take into consideration my point about how the six criteria can be interpreted differently by each area?

1300. Mr McGrath: I was coming to that. In future, under the changes envisaged, the ESA will have a statutory role in area-based planning. It will have guidance from the Department and will be expected to adopt a common approach, guided by the entitlement framework, school improvement and the sustainable schools policy.

1301. Mr D Bradley: Does that mean that the ESA will give a certain weighting to each of the six criteria?

1302. Mr McGrath: We expect each area plan to take account of the various policy parameters, of which the sustainable schools policy is one. Each area will be expected to make judgements on the relative importance of the sustainable schools criteria and explain why, for example, the judgement in one case showed a greater bias towards size or quality than the judgement in another.

1303. Area-based planning will not be so mechanistic as to allow one to stick the numbers in at one end and collect an answer at the other. Judgements will have to be made about the size of schools. You mentioned small schools and the different criteria but, at the end of the day, the quality of the learning experience for children will be very high. The enrolment of a school may be below the figure set for a sustainable school, but the test of a school’s worth will be whether it can address the challenges — either through amalgamation or federation — that were raised about the quality of the learning experience.

1304. If it can meet the challenges, an ESA plan could envisage that a school could function below the threshold; if a school cannot, it might not be allowed to do so. Judgements will have to be made in different places. There will be a common policy approach, and when proposing an area plan, the ESA will be expected to explain the judgements that it makes in different circumstances. That is no different from any other major strategic-planning exercise.

1305. Mr D Bradley: Will that not be rather confusing for the public? A school with a low enrolment might remain open while one with a higher enrolment might close.

1306. Mr McGrath: Those things happen. Hypothetically, a school with a smaller enrolment could work in collaboration with nearby schools to deliver the entitlement framework and quality of learning; equally, a school with a higher enrolment might be geographically isolated or unwilling to work in collaboration and have poor results.

1307. My experience in the Health Service, in which there are always issues about viability and facilities, taught me that different solutions apply to different places because circumstances are different. Geography means that there are differences in what happens in Downpatrick, Omagh and Coleraine because one can factor in different solutions. There is no one-size-fits-all solution; however, issues of critical mass and quality must be examined.

1308. Mr D Bradley: I thought that one of the points of the ESA was to stop the irregularity of application of policy across the board.

1309. Mr McGrath: It is about how policy is applied. It is certainly not envisaged that we will have an almost entirely mechanistic system. The exact primary and post-primary configuration around Omagh will not be the same as that in Coleraine or Downpatrick. However, it is consistency of approach and rigour, and about explaining how the issues balance.

1310. Mr D Bradley: Do you not agree that the sustainable schools policy is such a key element in area-based planning that there should be at least some reference to it in your revised policy paper?

1311. Mr McGrath: It is a clear policy. We may set out in the guidance that area-based planning should include sustainable schools among the key policy parameters of which it must take account. Do not read this as a dilution of the proposal. Issues of critical mass in education — as in other sectors — will become sharper as time progresses. Therefore many messages about the sustainable schools policy will bite much more sharply in future than they do now.

1312. Schools may find solutions through collaboration between sectors; they should at least be given the opportunity to do so.

1313. Mr Rooney: Sustainable schools will be central to area-based planning. Before sustainable schools existed, sectors planned according to their own factors and criteria; there was no common approach. The sustainable-schools policy has set out six criteria that everyone can consider.

1314. They must be interpreted by considering local circumstances. There cannot be a mechanistic approach that states that every school in a rural area must be reviewed if its enrolment falls below the threshold of 105. The policy clarifies that the key objective is to ensure that the educational experience of children is paramount when considering the provision of the estate in an area and how the facilities that are provided meet the educational needs of children. That is a key element of the policy, and it will be a key element of area-based planning to ensure that children’s education is of the right standard and that they have access to the broad curriculum to which they are entitled.

1315. The individual criteria were not weighted. We considered that, but the Minister decided that the criteria should be applied with regard to local circumstances. One criterion was not put above another — they had to be considered together. The indicators are intended to help the education sector to identify where action is needed in areas to address issues that might arise in schools.

1316. The ESA will have a key role in ensuring consistency of application across the region, because it will draw up the draft area plans and consider issues of sustainability across the schools estate. That is a key element of the ESA’s work on area-based planning.

1317. The key issue with amalgamations is that when the options of how best to ensure an area’s educational needs are considered, it requires two or more schools to amalgamate to provide a viable solution. As a broad guide, we expect that the schools involved in an amalgamation would be broadly equal in size; that would be one of the initial factors to consider. That is not necessarily an absolute requirement for an amalgamation; there can be many different types of amalgamation.

1318. We consider whether an amalgamation will deliver an effective solution in an area, whether it will provide a sustainable solution and whether the educational needs of children will be met. There is no hard-and-fast rule on when an amalgamation should or should not apply, but we will consider whether it is viable.

1319. Mr D Bradley: My other question was whether area-based planning can operate in an unregulated system, given that children can leave their own area to attend schools in other areas.

1320. Mr McGrath: When running a sector such as education, which has a pivotal role and a large budget, it is a no-brainer that a strategic-planning discipline is needed. I do not wish to get into the detail of transfer to post-primary school, because that is not my forte; however, the taxpayer would expect a system of strategic planning no matter what arrangements are in place. Strategic planning is not in place, and not having it creates more challenges.

1321. At its heart, area-based planning is not based around particular policy considerations; it is designed to take a strategic look at the education estate in the light of the policies of the day. Some may make it more complicated; some may make it easier. What is needed is a strategic planning process that better shapes the nature and delivery of the service, reflects investment needs and gives confidence that the right investments are being made in the right places. It is a puzzle to me how the education sector has gone for so long without it.

1322. Mr D Bradley: I agree that area-based planning is needed, but it will be difficult —

1323. Mr McGrath: It will be challenging, and it is early days. It will take some time for area-based planning to bed in completely.

1324. Mr D Bradley: I question whether that is where the process should start. My other question was about small schools. Do you not agree that such a challenging issue should be incorporated into your revised policy paper with specific guidance?

1325. Mr McGrath: The policy paper is for area-based planning, which will govern the legislation; it will not get down to the detail of individual or perhaps local guidance, depending on the circumstance. For example, it may be more relevant to rural than to urban areas, although not exclusively so. It is an important issue, but it may be further down the implementation path when it features in guidance.

1326. Mr Flynn: There are two sides to the issue. In a sense, area-based planning is about identifying a need and the solutions to it; that is where the solution of sustainable schools comes in on the supply side. If the issues are considered from an area basis rather than from a facility basis, some of the risk of local enrolment is being pooled. If an area is large enough, more of the movements will be internalised and more of the flows of pupils will be captured.

1327. Area-based planning is about delivering policies, a key one of which is sustainable schools. There is a balancing act, as planning challenges are thrown up by some of the policies. It is not meant to be a centralised, autocratic system of supply provision; it must allow policies to interact. My preference is to avoid singling out an individual strand in the policy paper for area-based planning, because it is about the delivery of a range of policies.

1328. The issue of thresholds and enrolments is a subset of one criterion of sustainable schools, but it is something that people pick up on; however, as John said, it was never intended to apply the policy mechanistically. The fact that it is about the range of policies as well as sustainable schools means that there must be flexibility in application at the facility level. The key point of area-based planning is its focus on determining need at an area level.

1329. I do not know whether that answers your questions, but it is an attempt to do so.

1330. Mr D Bradley: Thank you.

1331. Mr Elliott: My point relates to a question that Dominic asked about smaller schools. It concerns me that area-based planning will be forced by capital spend and capital budget, particularly in rural areas of Northern Ireland, without having a more designed plan. Ultimately, pupil numbers will drive that process. I think that Eugene said that the sustainable schools policy is central to area-based planning. I see that tied in to a policy that is driven more by those two aspects than being a feasible plan, particularly in rural areas.

1332. Mr McGrath: Small rural schools will face challenges in the future, and we must take those challenges into account when formulating a plan for them. In a sense, that confirms the point made by Dominic, and it will be an issue to address. Finding solutions in certain cases through greater co-operation or collaboration will be a challenge. With or without area-based planning, some small schools will face challenges; how those challenges are dealt with is the issue.

1333. Mr Rooney: When looking at small schools in an area-based planning context, one can plan so that they are viable and supported to deliver the education that is needed in an area; that will ensure that they are needed in the future. That is because the area-planning process should allow a complete view of how best to address the needs of an area, which may include a review of some schools and a decision that they are required in the long term and should be supported to maintain delivery.

1334. The present process is different — pupil numbers often dwindle, which increases pressure on schools, but there is no plan for whether the school is needed in the long term. As pupil numbers fall year on year, the school gets smaller, the pressures on teachers grow, but no proactive action is taken. That is what the area-planning process must change. It should identify all an area’s schools, its projected needs, and how those needs can best be addressed in the prevailing circumstances.

1335. It is a process of planning and management rather than of reacting to situations in which small schools face the challenges that they always have and always will. The question is how best to address those challenges once the circumstances of an area involved have been fully assessed.

1336. Mr Elliott: How will smaller schools be protected if their plans are not accepted by the ESA or the Department? That will cause friction. You may argue that smaller schools face challenges; however, the challenge for the Department of Education and the ESA is to work with them, and to date, the Department has, in many instances, not met that challenge. I would like the Department to adopt a much more open approach, which is a challenge that also faces the ESA.

1337. Mr McGrath: Tom makes some good points. Usually, events dictate what happens: small schools dwindle and may close, and the resulting pattern is dictated by happenstance. We always talk about particular primary schools, but, in area planning the approach is based on how to meet the needs of primary-school children in a specific area for the next 25 years. Tom is right that the Department must come up with a plan that is more strategic and proactive than simply waiting to see what happens and devil take the hindmost, or, as may happen in many cases, only the strongest will survive. That will present a challenge to the ESA, but all those involved must acknowledge that since the present pattern will not survive, a new one must be determined — as opposed to the winner being the last one standing. The ESA’s challenge is to ensure that it meets, rather than ducks out of meeting, educational need.

1338. Mr Elliott: To return to Dominic’s point, I know that the Department cannot permit too many inconsistencies, but one size does not fit all in the Province. I am keen to receive an assurance that guidance will be provided to ensure that that will not happen and that there will be flexibility.

1339. Mr McGrath: There will be local flexibility. The challenges will be to deliver choice and equality of learning. A solution that works in Fermanagh may not work elsewhere, but there must be scope for devising a local solution. If there is a diversity of approach, the test for the ESA will be to explain why something that worked in place X would not work in place Y; local communities deserve to know why that should be the case. Collaboration and the sharing of resources may result in a local solution being successful in one area. However, it may not work elsewhere because such arrangements were not possible, people were not willing to collaborate or the distances between schools were too great. One solution does not fit all, particularly for very localised issues.

1340. The Chairperson: John, at this stage, the devil is in the detail. To follow on from the points made by Tom and Dominic, several factors will determine the decision that is ultimately taken on a school. First, there is an issue about the trustees and ownership, and there is a long way to go on that in the controlled sector. The trustees have no statutory responsibility for development proposals.

1341. Take into account all that you and Eugene said about flexibility and consider the longstanding viability of a particular school. What happens if, in an area context, the ESA makes a determination and submits a development proposal stating that it can provide for the needs in the area by closing that school? As everything is set in the context of sustainable schools and, particularly in the case of post-primary schools, the entitlement framework, ultimately the ESA would have the power to close that school. Neither the school’s board of governors nor the trustees could do anything about it.

1342. That differs slightly from the present situation. Members know of schools that have amalgamated and are still not viable but which continue to existence; yet the Department cannot get some sectors to acknowledge that, ultimately, a particular school should close.

1343. Is that the key difference between where we are and where we will be?

1344. Mr McGrath: I hesitate to link that to a specific sector.

1345. The Chairperson: I did not name the sector, so you cannot accuse me of doing so. I did not cite a school or sector; I spoke in generic terms, so you can use the same protection.

1346. Mr McGrath: I defer to your wisdom. You will want the education and skills authority to have a role; it will consult on and debate an area plan before bringing its proposals to the Department. If those proposals are approved, the ESA envisages our investment proposals being guided by a decision to change the pattern for a particular provision, such as the primary-school sector, for example.

1347. As you said, rationalisation is not unknown in certain sectors at different paces in different places; the issue is about the quality of learning and the viability of critical mass. The Department or the ESA will not invent those: they already exist. We will want the force of a plan that has statutory effect to provide more of a catalyst to make changes.

1348. The Chairperson: Will an unregulated system be open to litigation? We hear various assertions about what could happen in the post-11-plus era. Is the argument the same for area plans? Could a school’s trustees legally challenge an area plan or development proposal if they did not agree with the closure of their school?

1349. Mr McGrath: Anyone has a right to go to court on any matter. Ultimately, schools rely on taxpayers’ money. If a rational piece of work suggests that a school should not have a future and should not be provided for, we would expect that to bite.

1350. Mr Chris Stewart (Department of Education): As John said, area-based planning will work best if it works on consensus. I reassure you that differences in ownership will not be an impediment. As the legislation stands, any grant-aided school can be closed by means of a development proposal, and the owners of that school cannot block it.

1351. The Chairperson: I appreciate that clarification.

1352. Mr O’Dowd: Who speaks on behalf of the nursery-school sector in the area-based planning groups? I am thinking specifically of standalone units.

1353. Mr McGrath: The current work relates only to post-primary schools.

1354. Mr O’Dowd: The review of public administration says that area plans should relate to areas covering the provision of, among others, nursery schools.

1355. Mr Flynn: That will be the case. Representation will need to be found for the nursery and pre-school sector in the area groups for area planning.

1356. The Chairperson: Therefore the focus is on post-primary schools at present.

1357. Mr McGrath: The non-statutory exercise is focused on the post-primary sector at present. In future, we want area planning to cover the spectrum of the services for which we are responsible.

1358. The Chairperson: Will that include youth services?

1359. Mr McGrath: Yes; we want area planning to cover everything from the early-years sector to youth services. In the early-years sector, there is a mix of nursery and pre-school provision and a mix of statutory and voluntary and community provision. That presents its challenges, as it is a much more diverse sector than the normal education sector. We will need the means to allow people to be represented. In that sector, there are issues about the differences in quality between pre-school provision and nursery provision, which the chief inspector highlighted in his recent report. An inclusive approach will be needed.

1360. In youth services there is also a mix of statutory and voluntary and community provision, and the number of providers is much broader and more diverse.

1361. The Chairperson: There are 11 organisations on the central group: the education and library boards; CCMS; the Irish-language lobby; the GBA; the Council for Integrated Education; trades unions; DETI; DEL; the Association of Northern Ireland Colleges; a representative from the Republic; and a representative from the ESA. One of the criticisms was that the make-up of groups — not just the central group, but the five subgroups too — was biased against the controlled sector, and I notice that that was picked up on in some of the other issues that arose from the consultation. Will that issue be addressed in the Department’s revised paper?

1362. Mr McGrath: The current exercise is non-statutory; the groups that are doing the work are made up of the providers of education. Under the RPA changes, the ESA will take the lead and do the work in consultation with the education providers; however, the ESA will be the executive body. The nature of area planning groups will be different from the present ones, and we will have to make sure that we get the right diversity. There must be a community input as distinct from the input of the education providers; it is important that the views of those who receive education are not lost. That is an issue that we will look at throughout our work, and to which we will return in light of the Minister’s views.

1363. Mr Poots: Paragraph 2 of the central group’s terms of reference states that:

“While the issues around transfer at 11 are not within the remit of this exercise, it will be important that the group’s proposals are consistent with any resolution reached."

1364. I am not sure whether a resolution has been reached. However, at least we are being realistic, as the Minister has recognised — in deeds if not in words — that academic selection will continue to be used by some schools and that there is nothing she can do about it. In that context, I assume that the work of the central group will be based on reality and not the Minister’s hopes?

1365. Mr McGrath: Those are the terms of reference for the groups and within them it is up to the groups to decide what they will do and how they will come back to us; there is no diktat on them.

1366. Mr Poots: The Minister has made many suggestions about what will happen and what she would like to see happen. There has been much talk about election at 14, but that has not been elaborated on. It appears to me that transfer at age 11 will continue; the only difference will be the privatisation of the test. Will the groups be guided by reality or by what the Minister wants?

1367. Mr McGrath: I cannot speak for the groups; they have their terms of reference, and they are made up of bodies that may have differing views on the issue. It is up to them how they address that, what they come back to the Minister with, and, as you say, whether or not that is deemed a resolution.

1368. Mr Poots: What advice are they getting, for example, on transferring to an alternative school at age 14? At present, that is not on the radar; there is little debate about pupils not in the Dickson Plan transferring again at age 14.

1369. Mr Flynn: The post-primary exercise is submissions-based; it elicits submissions from groups and individuals.

1370. The exercise will collate those submissions. We are not close to this exercise, because the central group will report to the Minister when it has brought all the submissions together. I cannot give detail on what it is doing at present; we have not seen it.

1371. Mr Poots: Is that linked to the estate?

1372. Mr Flynn: Their terms of reference focus on the delivery of the curriculum in the estate or on planned developments in the estate — those that have already been announced — given the time frame for the delivery of the entitlement framework.

1373. Mr Poots: If we move to election at 14, a huge rationalisation of the estate — and huge changes — will be required. If that is a reality — as opposed to a hope — the context in which the group operates will change. However, why should the group go down this route if it is only a hope? How would you operate now if you were a member of that group?

1374. Mr Flynn: I cannot speak for the sectors represented on the group; I will wait to see what they come up with.

1375. Mr Poots: These are confusing times.

1376. The Chairperson: We have been there before; no doubt, we will be there again. People are concerned that area-based planning will be used to get to a different point from where we are at present. We will be paying close attention to that. We will see whether it is used to drive through a policy on which there is not consensus. For instance, I see the arrangement regarding schools setting their own transfer tests as an interim measure, as, ultimately, everyone will have to agree on a proper transfer system into which everyone can buy. We are where we are until that is achieved.

1377. However, we must be careful that other measures of area planning are not used as a mechanism to try to get to the same destination.

1378. Miss McIlveen: Perhaps my question follows on from what Edwin said, but it relates to something that Mr McGrath said in his opening presentation. I got the impression that there might have been reluctance on the part of some sectors at the beginning of the process or that some people had difficulties with it. Have all sectors engaged fully? Were difficulties identified from the outset? If so, have they been resolved?

1379. Mr McGrath: As the current exercise is new, some sectors or interests required more clarification on what the opportunities were, and they wanted information on areas that they might have seen as threats before they signed up. It took some time before all participants came on board. Why, however, they felt like that is up to them, Michelle.

1380. Miss McIlveen: I will leave it at that.

1381. The Chairperson: The Committee raised concerns about club banks. Your paper states:

“Therefore, the need for Club bank loans should diminish and become redundant in time as existing schemes are completed."

1382. What progress has been made in getting to the stage where club banks become redundant?

1383. Mr McGrath: Previously, club-bank arrangements related to schools that had received approval but into which public capital investment could not be injected until they reached viability. Some schools bridged the interim period by club-bank arrangements. In future, greater rigour should be applied to ensure that schools are viable following an area plan; therefore public investment should be assured from the start. That is why I do not see a need for ad hoc arrangements in future. Some schools may be linked to such arrangements at present, but we do not envisage any further schools requiring recourse to the club-bank arrangements once the present ones have ended.

1384. Miss McIlveen: Does that mean that certain sectors will be unable to set up a Portakabin, put a sign outside it and call it a school? Will they have to go through a different process?

1385. Mr McGrath: At present, a school may be approved and receive revenue funding; however, no capital will be put in until it reaches certain viability thresholds. They have recourse to arrangements such as a club bank to expand the number of Portakabins and achieve those viability criteria. In future, planning arrangements will be more robust, and the Department will approve a school when it forms a judgement, on the basis of an ESA plan, that the school will meet those viability criteria. In those cases, we will inject public funds from the start, which could, in the early years, be used for Portakabins until a school achieves enough critical mass.

1386. Mr Rooney: That is the planned approach, and it does not prevent someone from setting up a Portakabin and creating a school that is not funded by the Department; a parents’ group can establish an independent school in a Portakabin. The role of the club bank is where a school has been approved and, in the early years, until it demonstrates long-term viability, recurrent funding is provided but not capital. The sector uses the club bank to provide capital for accommodation until a school has demonstrated long-term viability.

1387. How does the ESA link with the area-planning process? If a proposal for a new school has been analysed and approved at local level, the ESA will, in the early stages, be involved in accommodation matters. As John said, temporary accommodation could be provided until a school proves its viability. However, if an assessment is approved at the outset that a school is needed, it will be supported to ensure that a sector does not need to use a bank loan to obtain the capital for a school that has been approved. The ESA will work with the sector to provide the accommodation that is required in such a school’s early years. That approach applies to all sectors.

1388. Mr Lunn: Will that make it easier or more difficult for integrated and Irish-medium schools to establish themselves?

1389. Mr McGrath: A bit of both. In future, it will be more of a challenge to demonstrate the need for a school, and the test will be more difficult to pass; more will be involved than submitting an aspirational proposal. If a proposal is approved, public funding should be available from the start, and providing capital from hand to mouth would cease. In future, we need clearer and more robust planning to replace the “set-off-and-see" approach that sometimes occurs. Although that approach has worked in many cases, it has caused problems in others.

1390. The Chairperson: That affects development proposals. The Committee raised the issue that development proposals that are submitted before the establishment of area planning could lead to school blighting. In the past, a few individuals have been able to submit a development proposal that has ultimately changed a school’s nature or designation. I will not start a debate on the merits of integrated education — and I am sure that Trevor will be delighted to hear that — but there is sense of hurt in some areas when schools have been forced to take a road that has not been based on the merits of a case. Schools have been forced down that road because they are afraid of losing pupils — it has been a numbers exercise. How can we stop that happening in future?

1391. Every sector has a right to exist, but we need fairness if we want to achieve equity or, to employ a well-used phrase, to see a level playing field. I would love to see that: I do not think that it exists; I do not think that even Wembley Stadium is a level playing field. I hope that the playing field is level for Northern Ireland’s game tonight.

1392. People argue that there has not been fairness to date because of issues such as club banking that provides an advantage, or the ability to present a development proposal. That forces a sector or school to go down a road for reasons not based on merit.

1393. Mr McGrath: There will be challenges before area plans are in place. Area plans are about getting an overall assessment of need and responding to it. Neither the Department nor the ESA would be happy with proposals being brought forward in isolation, as in some of the circumstances that the Chairperson described.

1394. First, because a development proposal is made does not mean that it must be accepted. There is no assumption one way or the other: it must be considered on its merits. The likely strategic needs of an area would have to be taken into account, as would any relevant issues, and how far off an area planning exercise is likely to be. We would look at those issues through a much more critical lens.

1395. The Department and the ESA would also dialogue locally with all the sectors to tell them that we need to change. Simply submitting proposals to get them in before the tighter disciplines are in place is not the way to apply.

1396. Mr Rooney: Proposals for transformations have been turned down because they were perceived not to be about long-term viability but about falling roll numbers. Proposals can be turned down once all the factors have been taken into account. The Minister has done that on several occasions. The area-planning disciplines will consider those issues and other factors in an area and what is right in an individual case. Suggestions, ideas and comments on plans from various stakeholders are taken into account. However, it must ultimately be asked whether that is the right solution in that area, given the educational needs that must be addressed.

1397. The Chairperson: The subgroup of the central group is working on the basis of the five education and library boards. There was reference in the Minister’s statement, as well as in some of the papers, to working on the new model for 11 local councils for area planning. Is that still the basis on which the work is predicated? Is there any other thinking on whether it should be an amalgamation of the 11 areas? Do you know the group’s thinking?

1398. Mr McGrath: The exercise should be concluded before the ESA comes into being. Organisationally, the statutory role of the ESA will be based around six local area offices, covering two of the new local government boundaries and one based in Belfast. The areas for area-based planning are likely to be much smaller and reflect travel-to-school-areas. They could incorporate Coleraine and its surrounding area or an area in Fermanagh. It would depend on the travel-to-school patterns, for example. Some would be bigger and some smaller — we will have to take account of local circumstances. We do not propose a one-size-fits-all definition for area-based planning, as that would not be sensitive to local circumstances.

1399. The Chairperson: Thank you, John, Tom, Eugene and Chris. I will soon know your names off by heart without having to consult my papers.

18 February 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill

Witnesses:

Mr Jeff Brown
Mr Chris Stewart
Mrs Eve Stewart

Department of Education

1400. The Chairperson (Mr Storey): John is unable to be here today, and you are welcome, Chris. The Committee is beginning to wear the officials down, with one down and four to go. Today’s meeting must end at approximately 11.45 am because of a science, technology, engineering and mathematics (STEM) event taking place in the Long Gallery. That will curtail members’ questions, but as I always say, the Committee is free to return to any issue that it considers has not been adequately covered.

1401. Chris, perhaps we can divide the discussion into three areas and consider those in the following order: the commencement arrangements; the powers to make subordinate legislation; and the links to existing primary legislation.

1402. Mr Chris Stewart (Department of Education): I am happy to do that. I apologise in advance for what will be a dry, technical presentation on a dry, technical paper.

1403. Mr B McCrea: No change there then.

1404. Mr C Stewart: That is the nature of the subject matter.

1405. The paper describes the two ways in which primary legislation can be brought into operation: automatically on the date of Royal Assent, or at a later date by means of commencement Orders. The commencement arrangements for the Education Bill are set out in clause 54. As with most Bills, they include both mechanisms, so there is nothing unusual about that.

1406. However, the proportion of the provisions that are covered by each mechanism is unusual. In this case, all the substantive provisions — including those to establish and assign functions to the education and skills authority (ESA), and to dissolve the existing organisations — will be initiated by means of commencement Orders. As Members will recall, that is to reflect the decision of the Minister and the Executive that the review of public administration (RPA) should be regarded as a single legislative programme and that the two required Bills must remain synchronised. Therefore, the commencement arrangements are designed to ensure that the timing of the implementation of the first Act can be adjusted, if necessary, to maintain that synchronisation.

1407. The very few provisions that will commence on Royal Assent are set out in table 1 of annexe A to the paper. Those particular provisions will be commenced in that way either for technical reasons or because they provide for actions that the Department will have to take in advance of the implementation date of 1 January 2010.

1408. The technical issues are self-explanatory: both the clause giving the short title of the Bill and the clause that allows for the making of the commencement Orders must commence on Royal Assent.

1409. The remaining provisions, significantly those that deal with staff transfer, relate to what the Department must do in advance of implementation. Although staff transfer will not take place until 1 January 2010, when the new organisation comes into operation, it will be affected by means of a series of transfer schemes that the Department hopes to prepare well in advance of that date.

1410. Therefore, we need an early commencement of the provisions that allows us to draw up the transfer schemes. I assure the Committee once again that there is no suggestion that transfer will take place prior to 1 January 2010.

1411. The Chairperson: Clause 50, which will be commenced by Royal Assent, states in subsection 1:

“The Department may by order make"

1412. (a) and (b). Are those departmental Orders? If so, why are they not among the regulations set out in clause 51, which are subject to negative resolution procedure and laying before the Assembly?

1413. Mr C Stewart: I was going to explain that in the second part of the presentation. The answer is that it is standard practice. Commencement Orders are, as you say, orders made by the Department; they are not normally subject to Assembly control. The reason for that is that the Assembly, in passing the Bill, will have made its will clear and expressed its agreement to the legislation coming into operation. It is then regarded as a technical matter for the Department to do so at the earliest possible date.

1414. The Chairperson: Do members have any other questions about the commencement arrangements? Will the Department consult with the Committee on the timing of the other provisions coming into operation as set out in clause 54?

1415. Mr C Stewart: Yes. We will keep the Committee apprised of everything that we propose to do. We will bring all the commencement Orders to the Committee in due course.

1416. Mr B McCrea: Are the clause 54 commencement Orders also technical issues that do not require Assembly consent, or will they come before the Assembly by way of negative resolution procedure?

1417. Mr C Stewart: Commencement Orders are not subject to Assembly control, but all the other Orders — except for those that modify primary legislation — are subject to negative resolution control procedure. The clause that gives us power to modify primary legislation is the other exception. Due to the significance of that power, it allows the Department to make or to modify primary legislation. That is an extremely significant power, and one that ought to be — and will be — subject to Assembly control.

1418. Mr B McCrea: I understand why, in the past, negative resolution procedure was useful. It saved a lot of work, unless an issue arose. However, given the voting arrangements that we have and the sensitivity of these issues, is there any provision to make them subject to positive resolution?

1419. Mr C Stewart: Yes — if the Assembly passed an amendment to that effect.

1420. Mr B McCrea: That is a useful point.

1421. The Chairperson: Do members have any other questions on the commencement arrangements for the Bill?

1422. Mr McCausland: It is good to see that the Minister will be seeking Royal Assent for this legislation. That warms my heart.

1423. The Chairperson: I thought that that would please you.

1424. Mr B McCrea: Every dark cloud has a silver lining.

1425. Mr O’Dowd: It makes you feel all warm inside.

1426. The Chairperson: We move on to the powers to make subordinate legislation.

1427. Mr C Stewart: We have already touched on these issues in answering members’ questions.

1428. The range of enabling powers contained in the Bill is set out in table 2 of annexe B of the paper. Those broad powers provide for the making of subordinate legislation of three types: regulations, which are substantive law made by the Department to regulate or govern the exercise of functions on an ongoing basis; orders, which are of a one-off nature, and are made by the Department to exercise executive power or to make decisions in particular instances; and by-laws, which will be made by ESA to govern a range of local matters. As I have said, the arrangements for Assembly control of the various types of subordinate legislation are set out in clause 51.

1429. All the regulations and most of the Orders are subject, as the Bill is currently drafted, to the negative resolution procedure. Exceptions to that are the modifying Orders that I referred to under clause 51, the commencement Orders themselves, made under clause 54, and Orders to transfer assets, made under paragraph 2(1) of schedule 4. As I have said, the modifying Orders are subject to the stronger Assembly control procedure of affirmative resolution, simply because of the significance of the power involved. Commencement Orders and operational matters, such as asset transfer Orders, as would be normal practice, are not subject to Assembly control.

1430. The Chairperson: Paragraph 7 on page 132 of the briefing paper states:

“Clause 51 of the Bill sets out the arrangements for Assembly control of the subordinate legislation. All regulations and most orders made under the Act will be subject to the negative resolution control procedure."

1431. Most Orders, but not all?

1432. Mr C Stewart: No; the exceptions are the modifying Orders under clause 50(1), the commencement Orders and the asset transfer Orders.

1433. The Chairperson: Other than asset transfer, what other operational matters would not be subject to Assembly control?

1434. Mr C Stewart: Those are the only matters.

1435. The Chairperson: So, those matters covered by clauses 51 and 54 and paragraph 2(1)?

1436. Mr C Stewart: Yes; clauses 51 and 54 and paragraph 2(1) of schedule 4.

1437. Mr B McCrea: Are those the only matters?

1438. Mr C Stewart: Yes; there is nothing unusual in that pattern — it is standard practice that legislative counsel follows when drafting such provisions.

1439. Mr B McCrea: When will it be appropriate for us to debate the issues that we have with the Bill? Should we raise them in the Committee, the Assembly or should we just come and have a word with you? When will we be able to get to grips with the issues that we have with the Bill’s provisions?

1440. Mr C Stewart: Any or all of those processes would be appropriate. If the Committee feels that the commencement arrangements in the Bill are not to its liking, it could table an amendment at the Consideration Stage.

1441. The Chairperson: We have set a deadline of 20 February for the return of submissions from people who want to comment on the Bill. A couple of organisations have told us this morning that they will not be able to meet that deadline. We said that that is fine and that we will accept their replies at some stage. When we begin clause-by-clause scrutiny of the Bill, we will group the clauses as 1 to 5, 5 to 10, and so on. When it is time to scrutinise clauses 51 and 54, there will be an opportunity for Committee members to recommend changes if they are not happy. Am I correct, Chris?

1442. Mr C Stewart: Yes; if there is a consensus in the Committee about amendments, we will take them to the Minister and return to the Committee with her views on them. We want to share with the Committee, at an early stage, a small number of amendments that the Department wants to table at Consideration Stage, to ascertain whether there is consensus from the Committee on them. It will be good if there is complete consensus between the Committee and the Minister on amendments. However, if there is not, we will await the will of the Assembly on the amendments.

1443. The Chairperson: That would be useful. The Committee Clerk and I have not decided on a structure for how to address the clauses. That is something that we must consider; the way that we address the clauses should be done in a way that both helps the Department and reflects the Committee’s view. That should be done so that no issues arise three months down the road. There is an onus on all of us to do that, which is why I have endeavoured, maybe not very successfully, to work methodically through the Bill. That is why we will address the underlying policies in the Bill until 20 February, after which we will start to work our way through its clauses. Chris, it may be useful to have a conversation with you about that.

1444. Mr C Stewart: That is very helpful, and we would appreciate such an approach from the Committee. To facilitate the Committee’s work, we intend to let you see the amendments that we will be proposing, or at least the areas that those amendments address, in the next couple of weeks.

1445. The Chairperson: Which of the Orders contained in annexe B of your paper are not subject to the Assembly control proceedings?

1446. Mr C Stewart: The exceptions are the modifying Orders under clause 50(1), commencement Orders under clause 54 and the Order to transfer assets under paragraph 2(1) of schedule 4.

1447. The Chairperson: Clause 50(1) refers to clause 12, ‘Modification of employment law’. Is that correct?

1448. Mr C Stewart: Yes.

1449. The Chairperson: Members should make a note of clause 50(1). Are members clear that clause 12, ‘Modification of employment law’, clause 54, ‘Commencement’, and paragraph 2(1) of schedule 4 are not subject to Assembly control proceedings?

1450. Mr B McCrea: Is the “50" on your paper the same as clause 50(1)?

1451. Mr C Stewart: That is a fairly standard provision that legislative counsel includes in most Bills.

1452. The Chairperson: Is it subject to Assembly control?

1453. Mr C Stewart: Apologies, Chairman. I think that I left that one out when I was giving you the list. It is clause 50, and allows us to make supplementary, incidental or transitional provision. It is included so as to provide grace, in case we discover that we got something wrong in the drafting of the Bill. It allows us to put it right quickly.

1454. The Chairperson: Eleven years later, Chris.

1455. Mr C Stewart: Perhaps not as quickly as that.

1456. Mr B McCrea: For clarity, I have clause 12, clause 50(1), clause 54 and paragraph 2(1) of schedule 4.

1457. Mr C Stewart: We will double-check the table for any inaccuracies.

1458. The Chairperson: Which Orders and regulations in annexe B are subject to affirmative resolution?

1459. Mr C Stewart: The only one that is subject to affirmative resolution is clause 12. The power that it relates to is the power in clause 12.

1460. The Chairperson: That is OK.

1461. Mr B McCrea: What is that about clause 12?

1462. The Chairperson: Basil, we want to establish what clause is subject to affirmative resolution. There is only one clause.

1463. Mr B McCrea: Clause 12 is affirmative, but I have noted clause 12 in the same category as clause 50(1); that is what I thought that you had told me.

1464. Mr C Stewart: That is correct.

1465. Mr B McCrea: Are you positive?

1466. The Chairperson: That is correct, is it not?

1467. Mr C Stewart: That is correct, Chairperson. Only one power is subject to affirmative resolution procedure — the power in clause 12.

1468. The Chairperson: Will you explain the powers in clause 12 that enable employment law to be modified, and provide an example of how they would be used?

1469. Mr C Stewart: Upon reading, those powers may appear draconian. I assure the Committee that they are not. They are there to be used if needed to facilitate the operation of the employment model that we have described to the Committee. In other words, they provide the power — if needed — to slightly change employment law in order to assign a particular responsibility to the ESA or to a board of governors.

1470. The powers do not enable fundamental changes to be made to employment law. Therefore, we cannot change or dilute the responsibilities of the ESA as an employer; nor can we remove the fundamental rights of any member of staff under employment law. I assure the Committee that that is neither our intention nor is it within the scope of the provision.

1471. Mr B McCrea: That is a serious issue for many people. Mr Stewart has given the Committee assurances, but can anything be done to include those provisos in the legislation? People may consider such matters and surmise that the Department is assuming the power to do whatever it likes.

1472. Mr C Stewart: That may be possible, but if the Committee is minded to bring forward, and sought legal advice on, such an amendment, I believe that that legal advice would be that the move is unnecessary, because the powers do not allow the Department to misbehave in the manner that is feared.

1473. That provision is not new or unique. A similar one that uses exactly the same wording is included in the 1989 Order. It is a fairly standard clause that counsel would use in situations in which the Department wants to implement part of a policy that would otherwise be difficult because of an aspect of employment law. In that case, the power can then be used to remove whatever the minor issue is.

1474. Mr B McCrea: The point is that the Department is given the power to do things that it forgot about or to rectify mistakes, of which everybody is capable. The other side of the coin is that people are worried about those powers being misinterpreted. I have no wish for duplication, but surely legislation must be explicit and make clear what is fully intended. I believe that a form of words can be found that will help both sides.

1475. Nobody is saying that the Department should not have the power to fix things if they do not work out right. However, in their darkest moments, people must be reassured that legislation is not being used in a way that is contrary to that originally envisaged. Can a form of words be found that will counter those complaints and help the Committee?

1476. Mr C Stewart: I am sure that that is possible. At this stage, my advice is that that form of words may be better employed in the description, perhaps even in the explanatory and financial memorandum that accompany the Bill, rather than in the Bill itself.

1477. Mr B McCrea: Is that binding? I am seeking guidance because I have not done this before. How binding is that explanation and guidance?

1478. Mr C Stewart: It is not binding, in the sense that the explanatory and financial memorandum does not have the effect of law. However, the content of the explanatory and financial memorandum would be taken into account if there were a dispute and a court was required to make a ruling. In itself, it is not binding.

1479. The Chairperson: How different is what is proposed in the management of this process to what happened in the administration and governance of health services? How different are the clauses in the Bill that effected those changes from those that the Committee is currently considering?

1480. Mr C Stewart: Many aspects are similar. Many clauses in health RPA legislation and, indeed, in the legislation that set up the library authority are almost word-for-word identical to similar clauses in the Education Bill. That is because legislative counsel always likes to follow best practice when taking such matters forward.

1481. For example, schedule 1 to the Bill sets out a range of issues on the composition, governance and operation of the education and skills authority. There is a similar schedule in the Libraries Act and in the Health and Social Care (Reform) Act. Standard provision is used.

1482. The biggest difference between the Bill and those other pieces of legislation is the commencement Order. It is unusual — in fact, it is unique in my experience — for that proportion of a Bill to be actioned by means of commencement Order.

1483. Mr O’Dowd: I was going to raise the matter of the Health and Social Care (Reform) Act as it relates to how this RPA process is being managed. I imagine that no piece of legislation can be used to subvert or undermine employment legislation or any other kind. In that sense, therefore, you should not be looking for reds under the bed.

1484. If there are genuine concerns, they could, perhaps, be covered in the explanatory notes that explain the Bill’s purpose in order to reassure people.

1485. Mr C Stewart: It is right that a further, even slight, degree of reassurance should be offered. We did not ask for that clause: legislative counsel advised us that it ought to be included in the Bill because it is a standard clause that would normally be included in provisions of that nature.

1486. The Chairperson: If there are no further questions on that matter, we will move on to consider the links to existing primary legislation. That is where we will enter an absolute minefield. Perhaps, members, we may have to examine that again. I am well aware that the matter is extremely technical. Sometimes, questions are raised in everyone’s mind about why there are schedules, commencement Orders, and all of that. We may need to give that consideration. This is the first time that the current Committee has taken on such a task. An understanding of the matter would be extremely useful; even if that means that we must return to it again and again. Eleven other pieces of legislation are affected as a result of the Education Bill. Do you want to jump into the water, Chris?

1487. Mr C Stewart: I will jump into the water where only civil servants are comfortable, and even they are not terribly comfortable.

1488. Chairman, your warning is timely. I wrote the paper with what you have just said in mind. It would probably have taken me at least a year to try to write a paper that covers every aspect of every existing Order, and taken the Committee at least a year to read. Therefore, I have not endeavoured to do so. However, I recognise that the Committee will, undoubtedly, want to come back to particular aspects of the Bill. We are more than happy to do so at your request.

1489. In the paper, I have tried to illustrate the process that we have followed to link existing legislation to the Education Bill, and some of the principles that we have tried to reflect in doing so. As the paper explains, education legislation is some of the most complex and voluminous on the statute book. I spent much of the early part of my career in health, where, I can tell you, the volume of legislation is about 20% of that which exists in education. Therefore, to get through it is a challenge for any reader.

1490. The paper lists the 11 education Orders that exist at present. In many ways, the most significant is the earliest one, the Education and Libraries (Northern Ireland) Order 1986, which is, sometimes, known as the principal Order. It is the main piece of legislation. Seven of the other Orders are explicitly linked to it, because they contain provisions that state that they are to be construed together with 1986 Order.

1491. That means that any definitions or interpretations in the principal Order apply equally to the later Orders. The net effect is that those eight linked Orders and, indeed, the new Education Bill should be read and interpreted as if they were a single piece of legislation.

1492. I am afraid that this is when the fun starts, because it is not as easy as that. Each time a new Order was brought forward, not only did it add significant new provisions to the body of the legislation, but it amended significant chunks of the existing Order. Therefore, each time another layer went on the onion, the position became more complex and more difficult to follow.

1493. Further complications arise from the fact that there are a series of provisions on the statue book that have not yet been commenced for a variety of reasons, be those policy reasons — because it was not felt necessary or timely to do so — or because, as we said earlier, errors were made, from time to time, in taking forward commencement Orders.

1494. It was against that complex and difficult background that we sat down to examine the existing legislation and to create the necessary linkages with the Education Bill.

1495. We scrutinised all the Orders in detail by examining carefully every word and every line. The idea was to re-orientate all that legislation so that it linked to the RPA arrangements. To use an analogy, it was like using a magnet to pull iron filings in the same direction. Specifically, we examined the transferring of functions from existing organisations to the ESA, eliminating any redundant functions that were no longer needed, resolving any duplication of functions —, for example, both the CCMS and the education and library boards have some functions that are the same, and we did not need to transfer both sets — transforming some functions that needed to be changed, and a range of consequential amendments.

1496. A great deal of other legislation that is outside the field of education has references to education and library boards, and, of course, we needed to change all those. All that added up to more than 1,200 repeals and amendments. Many of those were straightforward, but others required complex changes and careful consideration. Most of the simple amendments involved changing a reference from “education and library board" to “education and skills authority". Legislative counsel, Mr George Gray, has taken a particular approach to doing that. He has drafted a catch-all provision in sub-paragraph 1 of schedule 7.

1497. The effect of that provision is that after 1 January 2010, any reference in any of the education Orders to “education and library board" should be taken to read “education and skills authority". That catch-all provision makes hundreds of changes to education law. Such references automatically change law, unless they are subject to a more bespoke amendment given explicitly in the Education Bill. The remainder of schedule 7 deals with other amendments, and schedule 8 deals with the repeals. As I said, I have not attempted to list all those changes in the briefing paper; however, I have picked out a number of examples to illustrate what we tried to do and how we tried to do it.

1498. I provided examples of the effects of the RPA legislation on the education Orders. Those include the transfer of functions, the proposal to eliminate a redundant function, the overlap of functions, or minor amendments to a function. I will not read those out now; however, we are happy to take questions on any particular aspect that members want covered.

1499. I draw the Committee’s attention to annex D of the briefing paper — schedule 5 to the Education and Libraries (Northern Ireland) Order 1986 showing the effect of amendments in the Education Bill — as that provides a picture of what the legislation will look like. By including both the highlighted and the struck-out text, we tried to show the totality of the effects of the various amendments and repeals on that particular schedule.

1500. The schedule deals with the appointment of governors to schools. That is quite a simple set of amendments; however, as members can see, unless one has the fully amended text in front of oneself, it is difficult to envisage the totality of the effect. We provided that example because a number of stakeholders read the Education Bill without reading the schedules of repeals and amendments in great detail — and, let us face it, why would they unless they had to — or the earlier education Orders and came to the wrong conclusion that we had removed the requirement to consult trustees of Catholic schools before the appointment of governors.

1501. It is only when one sees the amended schedule in its entirety that it becomes clear that that requirement is still there. However, it has changed from a requirement to consult the Council for Catholic Maintained Schools to a requirement to consult trustees. It is no longer the Departments or boards that will carry out the consultation; it will be the ESA. It is actually quite a simple set of amendments, but it illustrates the complexity and the challenges for any reader of the legislation.

1502. We have also provided a very brief summary in tabular form of the main groups of provisions in each of the eight linked Orders, to try to provide the Committee with a map of education legislation. It is far from a straightforward map; it is not as neat and tidy as anyone would like it to be. If one were to ask, for example, where the finance provisions are, the answer is that they are all over the place, but mainly in the 1989 and 1998 Orders. If one were to ask where the main provisions for education and library boards are, they are mainly in the 1986 Order, but there are a few others scattered throughout the other Orders. It is a very complex map indeed.

1503. We have not provided tables for three of the Orders. The Youth Service (Northern Ireland) Order 1989 will be repealed in its entirety, so that table would be superfluous. The other two Orders — The Education (Northern Ireland) Order 1987 and The Special Educational Needs and Disability (Northern Ireland) Order 2005 — will only be subject to a small range of amendments; therefore, we did not burden the Committee with two more tables that were not needed.

1504. I am genuinely unsure whether that has been of any use to the Committee whatsoever. I hope that it has. If to any extent it has not, we are happy to take members’ questions.

1505. Mrs M Bradley: You could come back a thousand times to discuss this issue.

1506. The Chairperson: I have said to the Committee a number of times that these are very technical issues. We all have a duty to ensure that we deal with them, but there is a limitation to what we can actually take on board. It is similar to issues involving finance; if one is not an accountant, one will have difficulty understanding all the issues.

1507. In relation to paragraph 23 on page 136 of the briefing paper, will you explain the need for the insertion of a new article — 18A — into the 2003 Order, giving the ESA powers to direct boards of governors? I would assume that articles 17 and 18 of the 2003 Order provide relatively up-to-date and strong powers in that area.

1508. The Committee Clerk: That paragraph of the briefing paper relates to clause 47 of the Bill.

1509. Mr C Stewart: That refers to a transformed function. The Department has identified what it thinks is quite a significant weakness in the legislation. In relation to child protection, the desired end result is that there should be clear responsibilities on each person or body that has a role to play in education. It should be perfectly clear what their responsibilities are and what they are expected to do. There should also be measures to ensure that those responsibilities are fulfilled — that is where a gap was identified.

1510. The existing provisions in articles 17 and 18 of the 2003 Order place clear responsibilities on boards of governors of grant-aided schools, but there seemed to be no effective means in the legislation for ensuring that they discharged those responsibilities. That is why the Department has suggested the additional clause, which would give the ESA the power to direct boards of governors of grant-aided schools if there is something that they are not doing, or are not doing correctly in relation to child protection. That is a significant provision.

1511. The Department is sometimes told by stakeholders that it has given the ESA draconian powers to do all sorts of things — that is not the Department’s view. The one area where it has, very explicitly and quite deliberately, proposed that the ESA should have significant powers is on the issue of child protection. It is felt that if an issue of child protection arises, it would not be sufficient for the Department to be able to explain to the Committee afterwards exactly who got it wrong, and where the responsibility lies. The Committee would also expect the Department to have done something about that to ensure that it did not go wrong in the first place. That is why that power has been included.

1512. The Chairperson: Is there a deficiency there, as the law stands?

1513. Mr C Stewart: Yes, I believe that there is. At the moment, the Department is in a position, if something goes wrong, to come along afterwards and apportion blame. It is not in a position to make sure that it does not go wrong in the first place.

1514. The Chairperson: Does that relate only to the ESA’s power to intervene and to direct boards of governors in relation to child protection?

1515. Mr C Stewart: Yes. That is the only subject matter —

1516. The Chairperson: It is only in relation to that issue?

1517. Mr C Stewart: Yes; it is the only subject matter on which the ESA can direct boards of governors. It has no role in directing them otherwise.

1518. The Chairperson: If a board of governors decided to go down a particular road and do something else — subject to the board of governors meeting all other legal provisions — does the ESA not have the power to prevent the board of governors from taking a decision?

1519. Mr C Stewart: That is correct, with the exception of child protection. That reflects the role and the ethos of the ESA that we intend. It is not intended to be a command-and-control body; it is there to challenge schools when necessary — particularly around raising standards — but primarily to provide advice, support and assistance. It is not a command-and-control organisation. The policy is ‘Every School a Good School’, not ‘Every School a Controlled School’. That is our aim.

1520. Mr McCausland: Under the new regime, will the general duties of boards of governors be altered? Perhaps I missed it, but is there a list of the 10 duties?

1521. Mr C Stewart: That is in next week’s paper, which the Committee has not yet received.

1522. The Chairperson: Next week, we will deal with the specific issue of boards of governors.

1523. Mr C Stewart: I will make sure that we list all the duties of boards of governors in next week’s paper. The significant additional duty that is contained in the Bill is about raising standards. There are parallels to the issue of child protection: we want to ensure that everyone who has a role to play in education is absolutely clear about their responsibilities. Nowhere in current legislation does it state that a board of governors is responsible for the standards of attainment in its school.

1524. That is a deficiency that was highlighted very clearly in the ‘Every School a Good School’ policy. We want to put that right, but we have not given the ESA the power to direct boards of governors in relation to attainment standards. We have proposed that a duty should be placed on boards of governors to co-operate with the ESA and the exercise of its functions. I am sure that the Committee agrees that that is not as draconian as a power to direct.

1525. Mr McCausland: Currently, the training for governors that is provided by the education and library boards is of indeterminate quality. How will that training be delivered in future?

1526. Mr C Stewart: It will be delivered in a variety of ways. There will be a statutory duty on the ESA to provide that training and support, or to procure it. In policy terms, if boards of governors in individual schools — or in groups of schools — feel that there are sound and credible alternatives to the training services that the ESA provides, we are certainly amenable to the idea of them procuring training services themselves. We would expect the ESA to support them in doing so.

1527. As John McGrath and Gavin Boyd said in a previous session, it is very much about changing the nature of the relationship between the ESA and boards of governors from that which currently pertains with education and library boards. We want to move away from the current position — in which education and library boards offer services and boards of governors can, essentially, take them or leave them — to a situation in which the ESA is sensitive and responsive to what boards of governors seek. It is a commissioning type of relationship: we want the services that the ESA provides to be driven by what governors tell it are necessary, rather than the other way round.

1528. Mrs M Bradley: What Chris said more or less answers my question. In other words, the training that was provided for boards of governors was voluntary, whereas this time around, it will be compulsory. Is that correct?

1529. Mr C Stewart: No, it will not be compulsory for —

1530. Mrs M Bradley: Should it not be?

1531. Mr C Stewart: There is an argument for that. It is certainly advisable. We are asking governors to take on a significant set of responsibilities. I do not think that any governor should do so without being adequately trained and prepared.

1532. Mrs M Bradley: Are those responsibilities in relation to child protection?

1533. Mr C Stewart: Absolutely.

1534. Mr B McCrea: That gets back to the nub of the issue. I understood John McGrath to say in evidence to the Committee that the change in the ESA, as it is proposed now compared with it where it might have been before, was that it was to have a significant role in raising standards. I will look at the Hansard report to clarify what was said earlier.

1535. Mr C Stewart: So will I.

1536. Mr B McCrea: It is an important point. I understand that that change came from determinations by the Public Accounts Committee on literacy and numeracy failure and that the Department said that it had a great strategy but that it was unable to implement it. I understood that the ESA was to be able to direct schools to ensure that standards in all schools were raised, particularly in the key areas of numeracy and literacy. If I heard you correctly earlier, you said that that was not your intention and that all that you were going to do was point out to people that they might do better.

1537. Mr C Stewart: The position is somewhere in between the two ends of the spectrum that you have described. We do not take a laissez-faire approach and simply point out to schools where they could improve and wash our hands of them. Equally, we do not give command-and-control direction. The ‘Every School a Good School’ policy is predicated on self-improvement and self-development by schools, so it is a schools-led process. The role of the ESA will be one of challenge and support.

1538. Intervention powers exist in current legislation and are not being introduced in the Education Bill. Those are not powers to direct; they are what we describe as the graduated response. Help can be offered where it is required. If necessary, boards of governors can be supplemented with additional governors if there is a need to increase the competence or ability.

1539. In extreme cases, such as a failing school, the composition of a board of governors can be changed or completely replaced. In the most extreme of all circumstances, a school can be closed. Those are the exception, and we do not envisage or want to be in that sort of position. Our role for schools that can do better is, primarily, to point out where they can do better and to immediately offer the help, support, advice and services that they need to lead themselves into a better position.

1540. Mr B McCrea: I will not detain you, because there are other issues to discuss, but that gets to the nub of our concerns. I am still not sure whether the ESA is a friendly uncle or some sort of draconian policeman. Most of the governors value their independence and want to get involved, and I think that you have to come forward with clarity about what the ESA will be able to do. It is not enough to hide it in legislation that fudges issues or is clear only to legislative counsel. We need legislation that the people who are being asked to run schools can clearly understand.

1541. Mr C Stewart: That is entirely correct. The ESA is a friendly uncle or a critical friend, not a draconian policeman. When stakeholders say, as they do from time to time, that they do not like the legislation because it is full of draconian powers, I usually ask them to show those to me. They cannot, because those draconian powers are not there.

1542. Mr B McCrea: I can. For a start, there is rule 101, the ability to add governors, the ability to change governors, and the ability, ultimately, to close schools.

1543. Mr C Stewart: All that is covered by existing legislation.

1544. Mr B McCrea: Absolutely, but according to some, we have a failing education system. The schools inspectorate says that 30% of schools might do better, so you might argue that you should have used those powers. The issue comes back to the fact that with the existing uncertainty, people want clarity. I am sure that we agree that we want clarity on who will do what and the powers that they will have. We do not want any surprises coming out of the woodwork.

1545. Mr C Stewart: That is a fair point. I am sure that the Committee will want to hold the Department and the ESA to account for their use — or lack of use — of the powers in due course. Stakeholders often suggest that the Education Bill will introduce a new range of draconian powers — that is not true. Although people might think that the powers are draconian, they already exist in legislation. As you said, we are criticised for not using those powers as often as we are criticised for using them.

1546. The Chairperson: The Committee will discuss the issue of boards of governors at next week’s meeting. Chris will circulate that paper on the basis of the Minister’s letter to the Committee. Members will receive that paper in good time in order to ensure that they are able to read it and digest the issues therein before next Wednesday’s meeting. Is that OK, Chris?

1547. Mr C Stewart: I know what I will be doing this afternoon.

1548. The Chairperson: Although I do not want to curtail members, I remind them that the meeting should conclude in the next few minutes.

1549. Mr Elliott: I want to ask a brief question about a technical issue, because I have only become a member of the Committee recently. Can some of the 11 existing Orders not be subsumed into the new legislation in order to restrict the amount of cross-referencing? Is it possible to streamline the legislation?

1550. Mr C Stewart: Yes, that is possible, and it is one of the Department’s objectives. However, it will probably take some years to do so. This Bill will remove one of the Orders and will remove significant chunks from the Education and Libraries (Northern Ireland) Order 1986 and the Education Reform (Northern Ireland) Order 1989. I expect the second Bill to shear more off the 1986 Order to the point that very little of that legislation will remain. At that point, we might ask legislative counsel whether we can insert the remaining bits into different legislation in order to remove one Order entirely.

1551. Stakeholders often ask — quite understandably and correctly — whether we could consolidate all the rules into one or two pieces of legislation. We can, and should, do so but not yet. Consolidation is a technical process that happens after legislation is reformed. Counsel cannot consolidate at the moment because it would be forced to hit a moving target, because the Department is still changing the legislation. 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. That is a mammoth and extremely technical task.

1552. The Chairperson: Is the 1986 Order the oldest piece of legislation that governs education, or is the Department still governed by powers that date from 1807 or whatever? That issue has been raised numerous times by local authorities, which claim that there is an archaic piece of legislation from 1879.

1553. Mr C Stewart: The 1986 Order consolidated the earlier pieces of legislation, the main one of which dated back to 1972. However, that is long gone. If my memory serves me right — if necessary, my colleagues will correct me — we discovered, through this exercise, that one or two pieces of the 1972 Order were still hanging around. We have dealt with such examples.

1554. Mr Elliott: Tradition is great.

1555. Mr C Stewart: I should add the caveat that some older pieces of legislation outside the education sector might affect education bodies. The Public Health (Ireland) Act 1878 might have some bearing on the activities of public authorities.

1556. The Chairperson: That Act might affect some schools.

1557. Mr C Stewart: My colleagues in voluntary grammar branch have told me that royal charters affect some schools. Moreover, some schools are companies limited by guarantee and are affected by companies’ legislation.

1558. Mr D Bradley: You mentioned the ‘Every School a Good School’ policy during your conversation with Basil. Does existing legislation contain all the powers that are necessary to implement that policy, or will the Education Bill create additional powers?

1559. Mr C Stewart: The powers are in existing legislation. The Education Bill will clarify the responsibilities, but the interventions already exist in law.

1560. The Department and the education and library boards each have some powers; those of the latter will transfer to the ESA. The strongest powers are, and will remain, with the Department. Therefore, if extreme circumstances arise in which a school must be closed, the Department will have the power to do that.

1561. Mr D Bradley: Will you explain what you mean by clarifying the responsibilities?

1562. Mr C Stewart: As I said earlier, nowhere in the current legislation does it clarify that boards of governors have a specific responsibility for standards of attendance at their schools. Equally, our colleagues in the education and library boards have told us repeatedly that they do not consider that their responsibilities for standards in controlled schools are made sufficiently clear in the legislation. That is why we are taking the opportunity to erase any doubt by ensuring that each person or body in the system knows exactly where the different responsibilities lie.

1563. Mr D Bradley: Schedule 13 in annexe C deals with:

“Education of children of compulsory school age; school attendance orders; duty of parent of registered pupil to secure his regular attendance at school; offences, penalties and enforcement."

1564. Those responsibilities, or functions, are being transferred from the education and library boards to the ESA. Will home-schooling be affected by the Bill, or is it catered for in existing legislation that will not be changed?

1565. Mr C Stewart: Existing legislation caters for home-schooling. If any of the education and library boards’ relevant functions need to be transferred to the ESA, minor amendments may be required, but we are not making any specific changes in that area.

1566. Mr D Bradley: Is home-schooling mentioned?

1567. Mr C Stewart: Off the top of my head, Dominic, I cannot say exactly where the provisions for home-schooling are to be found. However, if they are contained in any of the primary Orders, we will, through a series of minor amendments, transfer the functions to the ESA. If it would help, I will check that and come back to you.

1568. Mr D Bradley: Will home-schooling still be permitted?

1569. Mr C Stewart: Yes; there will be no change.

1570. The Chairperson: I declare an interest as a member of the board of governors of an independent school. Does that also apply to independent schools?

1571. Mr C Stewart: Nothing in the Bill changes the position of independent schools, which are largely unaffected by the legislation on education — with one highly significant exception. Independent schools are included in the inspection provisions and, therefore, can be inspected by the Education and Training Inspectorate.

1572. The Chairperson: Thank you. Members, you will probably go home and read your Committee papers tonight and tomorrow night, and return next week with more questions. Again, I thank Chris, Jeff and Eve for their attendance. Chris, I look forward to seeing you and your colleagues next week, same time, same place.

25 February 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mrs Michelle O’Neill
Mr Edwin Poots
Mr Tom Elliott

Witnesses:

Mr Jeff Brown
Mr Peter Burns
Mrs Eve Stewart

Department of Education

1573. The Chairperson (Mr Storey): I refer members to their briefing papers for the session; the three items that we want to cover this morning are employment schemes, schemes of management, and boards of governors. Joining us are Chris, Jeff and Peter from the Department. Gentlemen, you are very welcome. Perhaps, Chris, you will begin with a word about employment schemes.

1574. Mr Chris Stewart (Department of Education): Thank you, Chairman, and good morning members. I will pass over some clauses reasonably quickly, as I am conscious that the Committee’s time is limited this morning, and I want to leave as much time as possible for questions.

1575. Clauses 3 to 12 deal with provisions for schemes of employment, the aim of which is to capture and set out the employment arrangements that were outlined in the paper considered by the Committee on 21 January. Clause 3 will establish the education and skills authority (ESA) as the employer of all staff, teaching and non-teaching, in all grant-aided schools. Members will recall that the original proposal was to spread that provision over the two review of public administration (RPA) Bills, but, in response to representations made to the Department, it will now be contained entirely in the first Bill.

1576. Clause 3 also defines the term “submitting authority", which means the body responsible in each case for preparing and submitting the schemes of employment and the schemes of management. As drafted, the trustees are defined as the submitting authority for Catholic maintained schools; and boards of governors are defined as the submitting authority for all other schools. As we said at previous Committee meetings, the Department is considering an amendment to that clause, the effect of which would be to redefine the submitting authority as the owners or trustees of schools in all cases, but with the provision for the owners or trustees to delegate the function to boards of governors if they choose.

1577. That reflects the views and representations made to the Department by stakeholders who made the point that owners or trustees are the guardians of schools’ ethos and that they ought to have a role in preparing and submitting schemes in order to ensure that a school’s ethos is properly reflected.

1578. However, if a board of governors owns a school, the amendment will have little effect because the owners and the board of governors are one and the same.

1579. Clause 4 sets out the scope of schemes of employment; it requires each grant-aided school to have one, and sets out the matters that the scheme should contain. The clause provides that employment schemes can impose duties on the ESA and on boards of governors, and requires that the schemes be consistent with education law and with schools’ schemes of management.

1580. Clause 5 deals with the process of drawing up employment schemes. It places a duty on submitting authorities to prepare schemes and to submit them to the ESA for approval, and requires the submitting authorities to take into account any guidance that is produced by the ESA. There is, of course, a corresponding duty on the ESA to issue and periodically revise any such guidance and to include in it model schemes. Schools may adopt model schemes without change, adapt them to suit their needs if they so wish or produce their own schemes from scratch. The role of the ESA is to approve the schemes either without modification or, if necessary, with modification if the schemes are not consistent with education law or if a school has failed to take proper account of the ESA’s guidance.

1581. Clause 6 outlines the reserve powers of the ESA to impose an employment scheme in the extreme circumstance of a school’s being unable or unwilling to produce one. Clause 7 provides for the revision of employment schemes by submitting authorities either periodically or at the direction of the ESA.

1582. Clause 8 is particularly significant as it defines the effect of employment schemes in governing and regulating the actions of the ESA and boards of governors. Under clause 8, boards of governors will have a statutory duty to comply with their schemes of employment, and the ESA will have a reciprocal duty to put into effect decisions of boards of governors that have been taken in accordance with the schemes.

1583. I emphasise that in its ratification role the ESA’s powers are strictly limited; that is deliberate on our part. The ESA is limited to sending a matter back to a board of governors to be reconsidered if, in arriving at its decision, the board of governors failed to follow its own scheme of employment. The ESA will have no powers either to direct a board of governors or to change a decision of a board of governors — it can merely refer a matter.

1584. Clause 9 and schedule 2 of the Bill take us into slightly different, but related, territory. They provide for the transfer of staff from voluntary schools other than Catholic maintained schools and grant-maintained integrated schools to the employment of the ESA. Staff in other types of schools — controlled schools and Catholic maintained schools — are transferred by other equivalent provisions; namely, clause 22 and schedule 3. Clause 10 establishes the ESA as the employer of peripatetic teachers and requires the ESA to develop a scheme of employment that is similar to the scheme that will be in place for each grant-aided school.

1585. Clause 11 is one of the most complex and difficult clauses in the Bill. It is difficult to read, and is in pressing need of significant amendment. The focus of the clause is the common funding scheme and the payment of salaries. Members will be aware that some schools operate their own payment systems while others pay their staff through central arrangements operated by the Department. The aim of clause 11 is to permit those schools that operate their own payment systems to continue to do so in future if they wish or to opt in to the central arrangements. That is the effect of 11(1) to 11(4).

1586. However, a complication has arisen as a result of an earlier piece of legislation, and there is a difficulty that stems from the definition of a maintenance grant. The law as it stands would not allow us to give boards of governors control over their salaries budgets. Clause 11 contains a work-around for that situation for voluntary grammar schools and grant-maintained integrated schools, but has not solved the problem for controlled and maintained schools. The net effect is that clause 11, as it stands, would prevent the boards of governors of those schools from having control over their salaries budgets. That will not do; it is absolutely at odds with our policy, and we feel that the clause must be significantly amended. We might even ask for clause 11 to be withdrawn and substituted with an alternative.

1587. Clause 12, which we discussed briefly last week, will permit the Department to modify employment law, but only where it is necessary to do so in order to ensure the smooth operation of clauses 3 to 11. It does not give the Department the power to change the fundamental responsibilities of employers or the fundamental rights of employees. I draw the Committee’s attention to a typing error in our paper, which refers to paragraph 2 of schedule 9 — it should, of course, read paragraph 9 of schedule 2.

1588. I have covered a great deal of material very quickly, much of which was technical, so Committee members may want me to expand on some issues.

1589. The Chairperson: Thank you, Chris. Clause 8 gives the ESA the power to send back boards of governors decisions. If the ESA feels that there is something not right with a scheme that it has been sent by a board of governors, how long will it take for a resolution? Will the ESA continually send back a proposal until it is satisfied that its requirements have been met, even though a board of governors feels that it has done all that it could to ensure that a scheme is properly constructed? Will there be an appeal mechanism against either the ESA’s modification to schemes or its final decision?

1590. Mr Stewart: Your question raises two areas in which a board of governors could disagree with the ESA; the first is the preparation of a scheme. Our goal is an efficient and effective process — we do not want the ESA to take a long time or schemes to boomerang back and forth. The ESA will provide model schemes, which schools can consider. In submitting their schemes for approval, schools are asked to indicate the extent to which their schemes differ from the model scheme. That is to simplify the process; if a school adopts a model scheme without change, it can be approved almost instantly by the ESA. Similarly, if the changes that a school makes to the model scheme are slight, that will speed up the approval process. If a school starts from scratch and decides to write its own scheme, the process might take a little longer because the ESA will have to scrutinise it carefully and ensure that it complies with education law. However, we would expect that process to be completed expeditiously.

1591. There is no formal appeal mechanism in the legislation, but if a school felt that the ESA was being unreasonable in holding up or seeking to modify its scheme, it could make a complaint to the Department. The Department would look into the matter and, if necessary, use its powers of direction under article 101 of the Education and Libraries (Northern Ireland) Order 1986 if it felt that the ESA was not acting reasonably.

1592. The other part of your question was what would happen if there was a disagreement between a board of governors and the ESA on a decision about a scheme. As I said, it is not our aim to have matters boomeranging back and forth between a board of governors and the ESA. The only grounds on which the ESA could decline to put into effect a decision by a board of governors is if a board of governors has not followed the scheme. It is not a question of the ESA second-guessing, disagreeing or coming to a different conclusion — if procedures have been properly followed, the ESA is legally obliged to put a decision into effect. If a school felt that the ESA was behaving unreasonably in that regard, a complaint to the Department would allow it to invoke the powers of direction under article 101 of the 1986 Order.

1593. The Chairperson: The programme ‘Room 101’ has been shown on television more times than the Department has used the powers in article 101 of the 1986 Order — it has been used only two or three times in recent years.

1594. Mr D Bradley: Are you suggesting that we put article 101 into Room 101?

1595. The Chairperson: There may be one or two individuals whom I want to put into Room 101, but I will not go there.

1596. You said that there is no formal process in the Bill. Would the Bill be enhanced and would protection for boards of governors be enshrined if there was an appeals mechanism? Would such a mechanism give boards of governors confidence? The Bill consistently tells us that management schemes will be subject to education and employment law.

1597. We are dealing with something that has a very technical and legal aspect.

1598. I think that Committee members are worried that, as soon as the Bill is enacted, a problem may arise and everyone will say that the matter in question is not covered by the Bill, so there is not much that they can do about it. It will be too late then. From the Department’s point of view, would it be advisable to have an appeals mechanism? Is such a mechanism included in the Health and Social Care (Reform) Bill, given that the Health Service is experiencing a great deal of change? Would an appeal mechanism add value? After all, the role of the Committee is to scrutinise the Bill.

1599. Mr Stewart: It is certainly worth considering. As for our sparing use of article 101, there is an African proverb: “talk softly and carry a big stick". We have not used that provision often, but schools and education and library boards know that it can be used if necessary. An appeals mechanism may give confidence to boards of governors, and I can understand why some may look for one.

1600. However, rather than creating an additional specific appeal or challenge mechanism, it might be possible to incorporate into the clause a cross-reference to article 101; that could be done rather than introducing a new procedure. There is a precedent, as the inspection provisions include a cross-reference to article 101 that makes it clear that if we need to remedy a defect that has arisen as a result of the inspection of a school, article 101 can be called into play. Therefore making an explicit link to article 101 may be worth exploring if it would give confidence to boards of governors if they felt that, in the discharge of its functions under clause 8, the ESA was behaving improperly.

1601. Mr Poots: My concern is that, although Chris is a very reasonable guy —

1602. Mr Stewart: Will that be in the Hansard report?

1603. The Chairperson: Yes; it is now official.

1604. Mr Poots: Chris puts his case very reasonably. However, when one starts to implement such measures, one often finds that there are those in the Civil Service who push things to the limit and behave as jobsworths. Clause 8 runs contrary to the ethos of the review of public administration, which aims at reducing bureaucracy. However, clause 8 will result in the ESA’s micromanaging the work of schools and their boards of governors. I do not know whether it is appropriate to have a provision that will allow that to happen. That is not what the RPA is about; therefore I question the need for clause 8.

1605. Mr Stewart: We recognise that concern. Clause 8 and the policy have been drafted with a view to preventing the very scenario that concerns Edwin. The ESA simply must not get involved in the micromanagement of schools. It would be wrong, counter-productive and impossible — even if it were the right thing to do, the ESA will not have the capacity to micromanage to that degree.

1606. However, we believe that clause 8 is necessary because if, in future, the question is asked who is the employer in education, the answer will be that it is the ESA and schools acting together: having a single employer and individual schools acting on behalf of the ESA in discharging functions. It is important that there is clarity in that relationship and in what schools are responsible for, what the limitations are, what the ESA is responsible for and, equally, the limits of its functions. That is what we propose with those clauses, particularly clause 8.

1607. Members may wish to see more detail of that relationship in order to be satisfied that we have got the balance right. The difficulty with that is that the detail will be in the schemes of management rather than in the legislation; therefore it may take some time to instil confidence in members on that issue. However, without such a clause or such provisions, schools would be at a disadvantage because the parameters of their relationship with the ESA would not be clear. There would be greater scope for the ESA to interfere unreasonably in the day-to-day management of schools if its responsibilities are not sharply delineated.

1608. Mr Poots: The Committee will require further discussion on that matter, Chairman.

1609. Mr D Bradley: Will schemes of employment under the ESA differ in any major ways from existing schemes that work, presumably, between the Council for Catholic Maintained Schools and teachers, and between education and library boards and teachers?

1610. Mr Stewart: It is not easy to provide direct read across with an existing scheme or approach. We could identify schemes of management as models to be followed in future. The concept of schemes of employment is relatively new; however, some of the content of what we are discussing is not. In the paper, I have tried to point out where practice exists. It is in legislation for controlled and maintained schools. Paragraph 9 of schedule 2 to the Education (Northern Ireland) Order 1998 sets out in quite some detail the respective roles of education and library boards and boards of governors in employment matters.

1611. We want to go at least that far — and further if we can — to place functions, autonomy and control firmly in the hands of boards of governors and restrict sharply the ESA’s ability to do anything other than support and assist them to take that forward. Paragraph 9 of schedule 2 places those significant responsibilities in the hands of boards of governors, particularly for matters such as the suspension and dismissal of staff. Those are matters for boards of governors; and for them alone. We seek that level of autonomy in the draft scheme.

1612. Mr D Bradley: Are those the major differences?

1613. Mr Stewart: It is not a question of major differences, because at present there is not a simple before and after with which to make that comparison. There are not schemes of employment for all schools in the way that there will be when the legislation comes into effect. There is a range of approaches across various types of schools and sectors — some with more clarity than others. At present, the clearest model is for controlled and maintained schools as set out in schedule 2. The difference is that if we take that as our starting point, we want to go further: we want at least that level of autonomy for boards of governors — preferably greater.

1614. Mr D Bradley: At present, the negotiating apparatus between teachers’ unions and the Department is mediated through the General Teaching Council for Northern Ireland. In future, will the ESA be the employment authority that will negotiate with trades unions on teachers’ salaries?

1615. Mr Stewart: Yes, and for non-teaching unions as well. There is already a collective negotiation arrangement between, on the one side, the teaching council and, on the other, current employers and employing authorities that act together in what is known as the “joint working party".

1616. It is chaired by a representative from the voluntary grammar sector, so all the sectors — as employers — work together. In that sense, there is no change. The only change is that there will be one organisation rather than several, but there will be the same collective approach to trades union engagement.

1617. Mr D Bradley: Will teachers’ conditions of service be changed by the arrival of the ESA?

1618. Mr Stewart: No — other than through the normal process of negotiation between trades union and employer. There is consistency in terms and conditions across all the sectors and school types, but there is not always consistency in their operation.

1619. Mr D Bradley: I raised the concerns that Irish-medium schools have about maintaining their ethos, because, in most cases, their trustees do not own the schools; the boards of governors do. They are worried that a board of governors could change the status of a school without the trustees’ blessing, and they want more powers to maintain the ethos of Irish-medium schools. Will that be provided for in the Bill?

1620. Mr Stewart: It will be difficult to go further than we have in the Bill or beyond a possible amendment to “submitting authority". However, such an amendment would not deal with your concerns, because if a board of governors owns a school, changing the definition of “submitting authority" would make no appreciable difference.

1621. I do not see much, if any, scope for us to restrict the day-to-day operation of a school in legislation. If the change was of such a profound nature that it required a development proposal, there would be a requirement to consult the trustees of a school and take their views into account. However, I do not claim that that would give the control or veto that they may be looking for in that case. I see no easy way of achieving that outcome in legislation.

1622. Mr D Bradley: Will you write to me about it?

1623. Mr Stewart: I will; I am conscious that a reply to you on that is long overdue, and I apologise.

1624. The Chairperson: Paragraph 4 of page 147A of your paper states:

“The Department is considering a possible amendment to this clause".

1625. When the Bill was being drafted, the perceived wisdom in the Department was that clause 3, as it stood, was acceptable. Paragraph 4 goes on to give the reason for the Department’s change of mind:

“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."

1626. Will we be allowing schools’ trustees to define whom they can and cannot employ on the basis of their ethos and not on the basis of the requirements of the school?

1627. Mr Stewart: No is the short answer; no scheme of employment or management can be in contravention of education law or employment law. We will make it clear to any submitting authority, whether trustees or boards of governors, that it is proper for the ethos of a school to be reflected in its scheme of management and its scheme of employment — within the limits imposed by the law.

1628. For example, it might be proper in a recruitment exercise to test candidates’ knowledge and understanding of the ethos of a school, but it is not possible to limit unlawfully the eligibility of candidates outside that.

1629. The Chairperson: What is the paramount importance for stakeholders? It seems that some sectors, which I will not name, are more interested in the preservation of their institutions than in delivering good education. Who are the stakeholders to whom the paper refers? Why does the Department feel that it is necessary to amend clause 3 now? I have not concluded whether I think that it is necessary to amend it.

1630. Mr Stewart: Neither have we.

1631. The Chairperson: When the Department brought the Bill to us, the perceived wisdom was that clause 3 was as it should be. However, due to the views of stakeholders, it seems that concerns on clause 3 have been raised.

1632. Mr Stewart: I have no difficulty advising the Committee which stakeholders made the representations, because I am sure that they will make the same representations to the Committee if they have not already done so. The trustees of Catholic schools and the Irish-medium sector both wanted that change, because they wanted the employment scheme to reflect their educational ethos. In Irish-medium education, for example, a school’s trustees and board of governors want to ensure that, in order to assess suitability for employment, candidates understand the immersion model of education that is provided in their school, how it operates, its intended benefits and how it delivers a quality education.

1633. Similarly, the Catholic trustees made the point that Catholic education is not education for Catholics; rather, it is a form of education that reflects the Catholic ethos. They expect to be able to — as they currently do — test candidates’ knowledge and understanding of Catholic education. That does not mean that only practising Catholics are employed in Catholic schools. People in that sector often quote a particular example of a large Catholic post-primary school in which the principal is the clerk of session in his local Presbyterian church. On appointment, that candidate was tested, and the school was entirely satisfied that he understood and appreciated the ethos of Catholic education, the wider ethos of faith-based education and was capable of presiding over its delivery in the school.

1634. Those representations have been made to the Department. They are not unreasonable, and we are minded to make the change. However, we have not reached a firm conclusion, and, I am sure that the Minister wants to know the Committee’s views on that matter in order to help her decide.

1635. Mr D Bradley: I forgot to ask a question about the employment issue. Will you discuss the sample schemes of employment with the teachers’ unions?

1636. Mr Stewart: Yes.

1637. The Chairperson: I want to tease the issue out further. Is there any suggestion that the Northern Ireland Commission for Catholic Education or the trustees will issue a legal threat if the legislation is not amended?

1638. Mr Stewart: No, I am not aware of such a suggestion.

1639. The Chairperson: I am concerned that the controlled sector — the Cinderella of education in Northern Ireland — is being left out on a limb and up in the air. Your submission states that “further consideration is required". Every time that the Committee discusses the controlled sector, officials use language such as “we are discussing", “we are looking at" and “we will consider". Nothing seems to happen proactively in a sector that comprises £2·3 billion of the estate and is the largest sector in educational provisional in Northern Ireland. It always takes second place, and I am becoming concerned at how the controlled sector is being treated.

1640. You mentioned two sectors, and I would love to not be in a situation where we must deal with so many sectors. However, some people have insisted for years that they must have the right to have their own sector. You said that the Department is considering amending clause 3, but we do not know what will happen in the controlled sector. You submission states that:

“Further consideration is required on whether the submitting authority role ought to be assigned to the new ownership body for controlled schools".

1641. We do not yet know how that body will look or what its membership will be. Moreover, we are not yet aware of the issues of the sectoral body, the support body, the advocacy role and the ownership. That is yet another problem that is laid at the door of the controlled sector and is going nowhere.

1642. Mr Stewart: I agree with almost all the points that you raised. However, I would not equate the need to address those issues and consider them carefully with putting the controlled sector in second place. You are right to raise the list of points that have yet to be determined about the ownership body. Given that Committee has not yet been given a clear picture of what the body will look like, it might well have been right to be concerned, if, this morning, I had said either that the decision was to give that role to the body or not to do so.

1643. I raised the question in the paper because, if one followed the logic earlier in the paper without questioning it at all, one would assign that role to the controlled schools’ ownership body. However, I raised the issue, and I invite the views of the Committee before we come to any conclusion, because we must consider whether that role would fit with the other functions that we want the body to discharge. The answer to that is not yet clear.

1644. On the one hand, the body could be restricted to being very narrow and very technical, with little, if any, other function than that of ownership. On the other hand, it could have a broader range of functions, one of which might be ownership, and another of which might be the nomination of some governors. That would change the nature of the body quite significantly.

1645. The Department has genuinely not yet reached a conclusion on that issue, and the earlier paper that set out those matters is still undergoing consultation. I do not want to give the impression that the Department regards those issues as unimportant, or does not want to address them expeditiously. We do, but we genuinely want to hear the Committee’s views before we come to any conclusion.

1646. The Chairperson: There are a lot of technical details involved, but a couple of questions must be answered: will the establishment of the ESA, the clauses making provision for employment schemes and the Bill in its entirety result in equality between the sectors in education? Or, will there still be sectors that — because the trustees own their own schools, or for a variety of other reasons — are able to enjoy a privileged position, but that still talk the language of equality even when it does not exist? I listen to people talking about equality, but that is not reflected in what we are hearing this morning, nor is it reflected in a lot of the other details of the Bill.

1647. Mr Stewart: The Department’s aim is to provide for exactly what you suggested — equality. We do not want any school or any sector to be in a disadvantaged position. We will await the judgement of the Committee as to whether the legislation is achieving that. If the Committee feels that it is not, the Department will have to consider those issues very carefully.

1648. There are differences, particularly between the controlled sector and the other sectors. Some of those differences are historical, and some are intrinsic to the nature of a set of publicly-owned schools, as opposed to privately-owned schools. The Department’s task — and it is not always an easy one, but it is essential — is to ensure that that does not give rise to any sort of institutionalised inequality. If Committee members feel that we have not got it right yet or that there are issues that have not yet been dealt with, we are certainly open to suggestions and representations. Our aim is the same as yours. We want every school to be in a position in which the boards of governors feel that they are on a level playing field, and are not institutionally disadvantaged by the school type, school ownership or school sector, and certainly not by any aspect of the legislation.

1649. The Chairperson: I apologise to Members for hogging the discussion, but there is another issue that I want to discuss. We were speaking earlier about the management scheme. Your submission states that:

“The key point to emphasise is that this is a decision for the school. Each school, regardless of sector or type, should have the degree of autonomy that it wishes to have, and that matches its capacity."

1650. What does that mean? It is a very well placed little line that was inserted by the authors of the paper, whoever they were, but what is the thinking behind it?

1651. Mr Stewart: I assure you, on behalf of the author of the paper, that there is nothing sinister.

1652. The Chairperson: I am reassured.

1653. Mr Stewart: We hope that it is a pragmatic recognition of reality. Some schools — particularly the voluntary grammar schools, but also some of the larger Catholic maintained and controlled schools — indicated that they want the maximum level of autonomy, and said that they have a good and capable board of governors and that they want to do as much as they can, but with as little interference as possible from the ESA.

1654. Nevertheless, it is likely that some smaller schools — and this is not a value judgement of them — will wish to have the option of leaving some of those matters in the hands of the ESA, which would act on their behalf, and that is a perfectly legitimate choice. In our submission, we attempted to emphasise that a school’s level of autonomy ought to depend on the level of the capability of the governance of the school. Schools must make that judgement; not the ESA, which cannot be allowed to hand out autonomy as though it were a prize. Schools must decide what they are capable of doing and act accordingly. The ESA’s primary job is to support and advise schools, and when necessary, to challenge them.

1655. Mr McCausland: I do not hold it against the Chairperson for hogging the questioning, because this matter is important and concerns about it must be hammered home. This session is getting to the heart of the issue.

1656. There is a perception — which, in many ways, is valid — that the model is designed to suit the most vocal sectors. Consequently, we may end up with square pegs in round holes, and the controlled sector might be forced to adopt an inappropriate model. Therefore, we must pause for a while in order to thoroughly consider the implications of the proposals.

1657. I do not wish the situation that was described by the Chairperson to arise; whereby, in effect, one sector has preference to, and an advantage over, another. If that were to be the case, the Bill will go nowhere — it will be dead in the water. Decisions taken now will stick for 30 or 40 years, so either we get it right now, achieving fairness and equality for everybody, or we must stick with what we have, because we are not moving. Those matters must be tied down, and we must tease out the implications, because a mountain of information can be buried in a single sentence.

1658. Earlier, you gave an example of a scheme of employment, about which people must understand. Can you give some practical examples of how the ethos of a school might be reflected appropriately in its scheme of management, particularly with respect to the controlled sector?

1659. Mr Stewart: I must confess that that question is difficult to answer. The examples that sectors have put to us tend to relate more to schemes of employment. The only honest answer that I can give is that I cannot think of a specific example in which a school’s ethos would be specifically reflected in its scheme of management, other than, perhaps, in links between a scheme of management and a scheme of employment. As ever, the difficulty with the controlled sector is to ascertain what its ethos is. I do not believe that any ethos spans the entire sector. As we discussed previously, bringing an ethos into being is a challenge for the controlled sector’s representative body.

1660. Mr McCausland: In a sense, therefore, you are being asked to buy a pig in a poke, because, until that question is resolved, you will not know the practical outworkings. Without wishing to criticise you, that is an indictment of the present system.

1661. In a way, there is an understanding of what the religious and cultural ethos of the controlled sector should be. Whether it actually delivers that is another matter. I am interested in the fact that it is difficult to come up with examples. It is clear cut. This is a huge issue for the maintained sector, and it is a huge issue for the Irish-medium sector. We do not know about the controlled sector — although I think that some of us do know — but it is the issue of how that would work out in practice which is causing real concern.

1662. Mr Stewart: We recognise the issue, and we recognise the concerns. However, there is absolutely no desire on the part of the Department to treat the controlled sector differently. The differences and challenges to be faced tend to arise from the fact that there is simply no tradition of operating in this particular way, because there never needed to be a tradition within that sector. It has been a publicly-owned sector which has been controlled and managed by education and library boards. Therefore, many of the issues of ethos or autonomy have, if you like, been dealt with on behalf of the schools by their parent bodies.

1663. We are now trying to move to a situation in which schools have much more autonomy. However, that needs to be influenced, and contributed to, by sectoral and individual ethos. We are trying to create something within a sector that did not exist because there was no need for it. Clearly, there is a need for it now, for the reasons that Mr McCausland has given, which is to ensure that we have equality of treatment and opportunity. However, that is difficult, and it will take time. I do not claim to have a magic solution that I can bring to the Committee, and it would be wrong for me to do so. Nevertheless, we recognise the concern, and we will continue to work in that area to try to find a solution.

1664. Mr McCausland: The phrase “it will take time" concerns me. That would, effectively, be like asking me to buy the pig in the poke. I will not be buying anything until those issues are tied down. It cannot be left until the end of the year in the hope that a working group will have created a structure. The matter needs to be sorted out now before any Bill goes through the Assembly.

1665. Mr Stewart: I understand the concern. However, the Committee might be equally concerned if I were to come along and say that we had drawn up an ethos for the controlled sector over the weekend and that we are going to impose it. I am not certain that that sector, or anyone in it, would have much confidence that we would get it right the first time.

1666. Mr McCausland: I have said on three or four occasions that if one considers the matter as a human-rights issue — the rights of the children — and an equality issue across sectors, it is not too difficult to work out the answer. The Department has been reluctant to do that.

1667. Mr Stewart: I am intrigued as to what the answer is.

1668. Mr McCausland: The Department has been reluctant to deliver on its obligations to children in the controlled sector.

1669. The Chairperson: I am worried too that we may have a situation in which we have put the cart before the horse. We are being asked to buy-in to a structure that would allow the ESA to be the owner of the controlled estate — albeit that is not the preferred option for the Department — then, at some time when the issue has been sorted out and we have been able to get agreement, the ownership would be transferred to the body that would own the controlled sector. However, we are not sure as to what the relationship of that body would be to the controlled sector. There are far too many ifs and unknowns.

1670. We also have two other sectors — the maintained sector and the Irish-medium sector — that have clearly said that clause 3 is unacceptable and has to be reworded. They have said that they have their ethos and want to maintain their identity and preserve who they are.

1671. I concur with Mr McCausland’s points. We want to ensure that the Bill leads to equality. However, there is not even equality in the way in which the different sectors are being treated in the process. The subgroup of six to eight people is not even established yet. That has to happen.

1672. The point has been made on several occasions in this Committee that the controlled sector is starting at a very low base compared with other sectors, and it has a long way to go. However, judging by where we are now, the controlled sector does not have much time. A gun has been put to its head, and it is being told that it must get up to speed or else the ESA will look after everything. To be honest, no one in the controlled sector has any confidence that the ESA will look after their interests and provide for them. Those are serious questions to which we must have answers. When will the Department take seriously the issues that affect the controlled sector and inject equality into the process? To date, that has not happened.

1673. Mr Stewart: I assure the Committee that the Department takes those matters seriously now. We want to address the issues that have been raised. It would be wrong of me to claim that I can address them in a matter of weeks; it will take time. Nevertheless, the timescale is not as stark as you have portrayed it, Chairperson. Yes, we want to ensure that come 1 January 2010 — as the Committee has encouraged us to do — we do not leave the controlled sector lagging behind the others. However, that does not mean that by 1 January 2010 there has to be a sectoral ethos that is set in stone for ever. The ethos of that sector, like that of any other sector, will continue to develop and evolve as the sector itself continues to develop and evolve. Our job is to ensure that it has the capability and the capacity to do that.

1674. As far as confidence in the ESA is concerned, I cannot comment on the views that people in the controlled sector might hold; they must do that for themselves. We are not asking them to have confidence in the ESA to represent them or advocate on their behalf; we want to ensure that people in that sector are able to do that for themselves. However, we want to ensure that the ESA understands all the sectors, treats them with equality, and discharges its functions in an efficient, effective and fair manner to all sectors. That is what we will aim to do in the legislation.

1675. Mr McCausland: You can forget about 1 January 2010 unless you get this right. No one will vote for it in the Assembly.

1676. Mr Stewart: We are all subject to the will of the Assembly. As I said, we wish to expedite this matter. We share the same aims and concerns as the Committee, and we are happy to work with you on the legislation. I am happy to take any particular suggestions that you have back to the Minister about how we might progress the issue. I am intrigued by the solution that you half-offered to me earlier; I would not mind hearing more about that.

1677. Mr McCausland: It is a matter that I touched on several months ago, and I will come back to it again with you.

1678. Mr B McCrea: It has been interesting listening to folk who have raised many of the concerns that I already voiced. As Edwin said, the problem is because you speak very nicely about things and you are such a nice chap, it would be hard to —

1679. Mr Stewart: I hope that the Hansard report will record that as well.

1680. The Chairperson: For the second time, Chris, yes.

1681. Mr B McCrea: It strikes me that this is a sugar-coated poison pill. In all such issues, the devil is in the detail, and that is where the problems arise. Your submission states that:

“In preparing schemes, submitting authorities must take into account any guidance produced by the ESA. Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence. However, it cannot be unreasonably ignored."

1682. There is always a “however". It goes on to say:

“The ESA may approve schemes, or modify them if they are not consistent with education law, or if they failed to take account of guidance."

1683. Despite all the smiles, and “don’t worry, we trust you, it’ll be OK", when this Bill becomes law, it gives the ESA, driven by ministerial directive, carte blanche to do what it likes.

1684. Mr Stewart: I disagree with you, and your interpretation of that. In the paper, I tried to convey the fact that guidance is guidance. It is not the same as legislation, and it is not the same as direction. Neither the Department nor the ESA could, even if they wanted to, insist on any school following guidance to the letter. The test — if there needs to be a test in cases of dispute — is always one of reasonableness. A court would consider the actions of the ESA and of a board of governors to determine whether those actions are reasonable.

1685. If we attempted to put something into guidance which was unreasonable, it would not stand. If we attempted to follow an interpretation of guidance that was unreasonable, it would not stand. If we attempted, unreasonably, to compel a board of governors to take a certain course of action, it would not stand, and it would have very clear and simple recourse to the courts to stop the ESA.

1686. Courts take a very dim view of Departments or public bodies not understanding the limitations of their powers in relation to guidance. In the paper, I was simply trying to convey to the Committee that the Department understands the limitations of guidance and what it means in the circumstances.

1687. Mr B McCrea: Are you familiar with the case of Pepper v Hart?

1688. Mr Stewart: There is a response to that along the lines of: in the pubs and clubs of Antrim, they talk about little else. However, I am afraid that I am not familiar with that case.

1689. Mr B McCrea: I invite you to consider the case of Pepper v Hart and the subsequent judgement made in the House of Lords in 2003 in the case of Wilson and others v the Secretary of State for Trade and Industry. The important issue that that judgement raised is about whether the deliberations — the words that come from people such as you or the proponents of Acts — form part of the overall Act.

1690. We have talked about explanatory notes and guidance as being part of Bills, but in the final part of the notes that I have, and I will stand corrected, is that the object is to ascertain what the intention is as expressed by the words enacted. Guidance, explanatory notes, and warm words said in these Committee meetings and being chucked around in the Assembly count for nothing. Unless it is written down in the Bill and enacted, it has no validity. As the Chairperson said, there are far too many “ifs, buts, maybes" and “we will deal with this later" for us to pass anything that is in front of us.

1691. I will say what the Chairperson has been too gentlemanly to say and I will take the flack for it. There is a concern that those from the maintained sector are worried about employing Catholics, because they think that it is part of their ethos. It could even be said that the Irish-medium sector wants to make sure that they employ people who agree with them and that that is the way forward. That may not be an unreasonable position in itself, but we will reach a situation whereby we will have institutionalised inequality. The impression that one gets is that one side is governed by doing what is equal and fair — whatever that side is — and that the other side has got an advantage because it has carefully included things under the guidance of ethos. That will not stand.

1692. The Department will have had submissions from people other than those who are in those sectors, including representatives from the governing bodies association (GBA), the Assessment and Qualifications Alliance (AQA) and whomever, who will make it quite clear that the appointment of their teachers is central to them as well.

1693. Unless we get firm detail, written down in a Bill — I am sorry, I cannot speak for the others — we are not going for this. I have expressed my reservations to you before, and I restate them for the record.

1694. Mr Stewart: There were a number of points that I could respond to, but the theme running through the comments invites me to comment on the motivation of some of the sectors in the representations that they made. You will understand that I will not do so, because I am not in a position to do so.

1695. In effect, you are arguing that the Department should move some of the detail of guidance and place it on the face of primary legislation in order to provide certainty. That is a perfectly reasonable argument, and it is one that the Assembly may wish to consider. We will follow the will of the Assembly in that regard.

1696. I will not argue with your interpretation of the case law, because I have pleaded in defence to the Committee many times that I am not a lawyer. Certainly, the principles that we follow are as instructed to us.

1697. A court will always consider the legislation first and foremost and use the interpretation of a normal and right-thinking individual. Where there is doubt, which can happen occasionally with even the best-drafted legislation, a court or tribunal will examine the proceedings in Parliament, or in this case the Assembly, to fathom its will when it passed the legislation.

1698. When interpreting guidance, a court or tribunal will examine policy statements or utterances by officials or Ministers to determine the intention behind legislation. We cannot rely on the defence that what we might say to the Committee is different from what is in the guidance: if I make a comment about guidance, a court or tribunal can take that into account when interpreting what the guidance was intended to achieve.

1699. Mr B McCrea: I invite you to check with your legal department, because a House of Commons standard note states that:

“Following the decision in Pepper v Hart in 1993, if primary legislation is ambiguous or obscure

— And we are making a fair stab at that —

“the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation."

1700. The House of Lords contradicts that and says that what is enacted is the will of Parliament — or in our case the Assembly — and that is the issue. Chris, you can check those references.

1701. We need detail, because the constructive ambiguity approach will not work — people do not trust the ESA. I am not being critical of the ESA’s objectives on efficiencies, but fundamental issues are emerging, and unless they are dealt with in the legislation, you will have difficulties with your deadline for the passing of the legislation.

1702. Mr Stewart: I understand that, and I am relieved that we agree on the interpretation of the case law. You are saying that there is neither consensus nor trust on some of the detail appearing in guidance and that you want to see it appearing in primary legislation. If that is the will of the Assembly, it can be done, and you are right that it will have implications for the timescale of the legislation.

1703. Mr B McCrea: I invited you to consider the case law before you say that we agree, because there was the case of Wilson and others v Secretary of State for Trade and Industry in 2003.

1704. We want the detail in the primary legislation, because we want to know what everything means. Only then will the Bill have a chance of progressing.

1705. Mr Stewart: I note the Committee’s views.

1706. The Chairperson: It is welcome that we have a document from the Department that states:

“Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence."

1707. That might be in contradiction to the perceived wisdom that exists about other guidance that will be issued over coming weeks.

1708. Mr Stewart: I could not possibly speculate on what you might mean.

1709. The Chairperson;

1710. However, we will not stray into that debate again today, but it is good to note that.

1711. Mr D Bradley: The Minister announced a review of the education workforce after the classroom assistants’ dispute. Will that affect the work on employment schemes?

1712. Mr Stewart: Not that I am aware of, although I am not familiar with the terms of reference of that review. I will check that and get back to you.

1713. The Chairperson: The terms of reference for the review are set out at tab 4 of the Committee folder on page 155.

1714. Mr D Bradley: Thank you.

1715. The Chairperson: The next issue is the schemes of management. After that, we will address boards of governors, which is a huge issue — we will not curtail the discussion on that, so we may have to return to it.

1716. Mr Stewart: Clauses 30 to 33 focus on schemes of management, which will be the central governance arrangements for all grant-aided schools.

1717. The schemes of management will cover membership, the procedures of boards of governors, the day-to-day management of schools, the respective roles of boards of governors and principals and the composition and role of any committees of boards of governors that may be established.

1718. The clauses are similar in wording and construction to clauses 4 to 7 on employment schemes, and they will operate in a similar way. There will be a requirement on schools to draw up schemes of management, having regard to guidance produced by the ESA, for the ESA to approve those schemes with or without modification and for the schools to follow the schemes as they are in place. That is similar to the effect of the legislation on schemes of employment, which, in this case, is not such a new phenomenon. Provisions are already in place in articles 9A to 9D of the Education and Libraries (Northern Ireland) Order 1986, which will be replaced by those provisions when the Bill is enacted.

1719. The Chairperson: You referred to the provisions in articles 9A to 9D of the 1986 Order. How precisely do the new provisions in clauses 30 to 33 compare with the existing provisions? Are there any new provisions?

1720. Mr Stewart: No. The wording may be slightly different, but the effect is very similar. There is no significant change in that area.

1721. The Chairperson: We move to the issue of boards of governors, which is covered by clauses 34 to 36 and clauses 47 and 48. I remind members that we are not yet considering the clauses in detail; we will return to consider them individually. We want to consider the underlying policies that inform the clauses.

1722. That is why, despite some members’ concerns, we wanted an extension to the Committee Stage; we wanted to ensure that we had enough time. Next week, I hope to provide the Committee with an outline of how we will consider the clauses. As yet, we do not have all the responses from those with whom we need to consult.

1723. Mr Stewart: I am glad that you told me that today’s discussion was broad-brush rather than detailed.

1724. Clause 34, on which we touched last week, stems directly from the Department’s policy on raising standards, as set out in the ‘Every School a Good School’ policy. The clause aims to ensure that there are clear responsibilities throughout the education system — in this case on boards of governors — in relation to raising standards. The clause proposes two duties for boards of governors: the first is to exercise all their functions with a view to promoting high standards of achievement; the second is to co-operate with the ESA in the exercise of its functions in relation to raising standards.

1725. I draw members’ attention to the lack of the ESA’s powers in that regard. There is no power for the ESA to direct boards of governors in relation to that duty or in the related matter of the exercise of their employment functions. As we discussed at last week’s meeting, that reflects the policy of autonomous, self-improving schools, supported and challenged by the ESA but not directed or controlled by it.

1726. Clause 35 amends the provisions on the composition of boards of governors of various types of schools. It is a long and difficult clause and a taxing read that will challenge anyone’s powers of mental arithmetic. The net effect is, however, quite simple. Some governors are currently appointed by the Department or by the education and library boards, but, in future, those governors will be appointed by the ESA. That group of governors will be known as community governors, who are defined as:

“persons living or working in the local community".

1727. The important point to emphasise is that the composition of boards of governors is otherwise unchanged. That includes the right of the Transferor Representatives’ Council (TRC) to choose governors for controlled schools.

1728. Clause 36 merely removes the barrier on part-time teachers serving on boards of governors. Clause 47 is on different territory, and it relates to articles 17 and 18 of the Education and Libraries (Northern Ireland) Order 2003 on child protection.

1729. Our aim is to ensure that there are clear duties and responsibilities on child protection throughout the education system, and also an effective means of enforcing those duties and responsibilities. It is, therefore, because of its significance, the only provision in the Education Bill — or indeed in existing legislation — that would give the ESA power to direct a board of governors.

1730. Clause 48 is the companion to clause 47; it places a duty on boards of governors, and other education providers, to co-operate with the ESA in the discharge of its child-protection functions.

1731. The Chairperson: Under clause 35, would governors, who were previously appointed by the Department and by the education and library boards, in future be appointed by the ESA? In light of our discussion about defining ethos, it seems that there is a defined ethos in the maintained sector and in the Irish-medium sector, but there is an obscure, bland, undefined ethos for the controlled sector.

1732. Will the community governors have to be trawled for and considered as suitable candidates in the light of ethos as well, or will the sole criterion be that they live and work in their community? People who live and work in a local community could be as completely averse to the ethos of a school as I am to — I had better not give an example.

1733. Mr Stewart: Hansard is listening, Chairman.

1734. The Chairperson: There is a worry that such people will be appointed. If there was a legal challenge to an appointment that had been made at political or ministerial direction, the courts could say that since the appointment was competent under law there was nothing that they could do to change it — because the law is vague and ill defined.

1735. Some people could be appointed to the board of governors of a school solely because they are being directed by a political aspiration to influence and change the nature, ethos, direction and decisions of that school. That would create confusion and confrontation in the boardrooms of schools where, to date, there has been harmony. Despite all the challenges and difficulties, there has been no problem with the people who sat around the governors’ table.

1736. Mr Stewart: We agree entirely. We must prevent such a situation. The only formal requirement in the legislation is the one that you pointed to: the definition of community governors. However, in future, as at present, when applying to serve as governors, applicants are asked to indicate the school or type of school in which they wish to serve. Where possible, an attempt is made to match preference, and there is always, and will continue to be, a legal requirement for consultation with schools when governors are being appointed to ensure that there is no disharmony.

1737. It is not the Department’s intention to do anything other than appoint governors who have an understanding of, and an empathy with, the ethos of the schools to which they are appointed, and, beyond that, to appoint them on the basis of their capability and competence to run a school effectively and to discharge a very important public service.

1738. I recognise your concerns; they have been expressed to the Department by every sector on that issue. I say to those sectors what I say to the Committee, as well as telling them that the Department could make such appointments now if it wished, since the Department and the education and library boards appoint governors to schools. If the Department had an improper purpose in mind, it could be achieved at present just as easily as in future. However, we have no improper purpose in mind.

1739. The Chairperson: A Bill should be about getting things right and addressing problems and deficiencies that have been experienced in the past. The issue involves every school — controlled, maintained, Government-maintained and integrated. How difficult would it be to amend clause 35(2)(c)? That is essentially the nub of the matter. That clause states:

“ ‘community governors’, in relation to a school, means persons living or working in the local community;".

1740. Surely it would not be difficult to amend that clause to reflect the Department’s intention. The Department’s intention — no matter how good — is not worth the paper that it is written on if it is not in the Bill. We will not be convinced that that intention will be fulfilled unless we see it in the Bill. Some thought should be given to how clause 35 can be amended to reflect the Department’s intention and the worries of every sector.

1741. Mr Stewart: We are happy to work with the Committee on proposals to amend or expand the definition. It would be an unusual legislative approach to state what a Bill will not do; Legislative Counsel would advise us that that is not a necessary step. However, we are more than happy to consider other dimensions that you feel ought to be reflected in the definition.

1742. The Chairperson: The Department has concerns about clause 11, and amendments will be made to it. Yet, despite all the worries that have been expressed, the Department seems to have no concerns about clause 35. The Department seems happy not to consider amendments. You received a roasting — to put it mildly — from two sectors about clause 35.

1743. Mr Stewart: We have been roasted by all sectors. [Laughter.]

1744. The Chairperson: They have not all started yet; they are only warming up. It seems as though the Department will not consider doing anything about the issues that have been raised in respect of clause 35 unless they are raised by the Committee.

1745. Mr Stewart: The difference is that some sectors suggested a beneficial change to clause 11; we did not consider the suggestion to be unreasonable, and it is one that we are keen to consider. Several sectors expressed genuine concern about clause 35, but there is no evidence that what they fear is happening — even though it could happen under present legislation. There is no evidence to support change.

1746. We are happy to consider any other dimensions that the Committee feels ought to be reflected in the definition of community governor. The challenge in drafting legislation is to be precise in what one is trying to define. It would be very difficult — indeed, almost impossible — to use the word “ethos" as a definition in the Bill, because ethos is an extremely difficult concept to define, measure or test in court. We do not want to end up with imprecise legislation such as the case law to which Basil referred.

1747. The Chairperson: With all respect, it is not difficult to do it with employment schemes: clause 3 states that there will be a change of ethos. It seems that one can have a definition in an employment scheme but not in a Bill.

1748. Mr Stewart: There are clear differences between employment schemes and Bills. Legislation requires a unique degree of precision and clarity in the meaning of words and phrases; that precision simply does not exist anywhere else.

1749. It will be extremely difficult to arrive at a definition of “ethos" that can be included in legislation.

1750. Mr McCausland: In the Catholic sector, the committee for appointing boards of governors is simply given a list. The choices are predetermined; they do not pick one person out of a choice of 10; they are told whom to choose. The Catholic Church thereby ensures that the ethos of its sector is guaranteed. We are simply saying that the ethos of schools in the controlled sector must be guaranteed — and I am sure that we will get that sorted out — as it is in the Catholic sector.

1751. There is an issue about the balance of representation on boards of governors. Churches have largely withdrawn from some inner-city areas of Belfast — and I do not think that that has happened elsewhere — in which schools in the controlled sector are situated. Often, the appointment of a Church representative to a school’s board of governors in such an area is made for historical reasons, namely that a church was located there 70 years ago. As a result, a bizarre situation occurs whereby Church representatives, none of whom lives within 10 or 20 miles of a school, sit on an inner-city school’s board of governors. The church building no longer exists, but the representatives of that Church make decisions about a school.

1752. I could live with that if only one Church representative were allowed to sit on a board of governors. However, the difficulty arises when several transferor representatives are allowed to do so, because they can become a substantial element on a board of governors. For example, Church representatives on the board of governors of a school in Belfast drove through a fundamental decision. Can you clarify the number of transferor representatives permitted to sit on a board of governors? My understanding is that it varies from school to school.

1753. Mr Stewart: That is correct. The sums can be complicated.

1754. Mr McCausland: It is important that the transferor Churches have their place and want to protect it. However, as has been pointed out before, there are other Churches in the Protestant community. An historical peculiarity should not act as a block to override others.

1755. They seem to have an automatic in-built majority on everything. That probably applies only to schools in inner-city Belfast, because, in the countryside, the same church might have served its community for the past 200 years. Given changes in demography, however, that issue should be examined.

1756. Mr Stewart: I am sure that you are not inviting us to remove the TRC’s right to nominate governors.

1757. Mr Elliott: Just the Presbyterian ones.

1758. Mr McCausland: As I am not a Presbyterian, a Free Presbyterian nor any sort of Presbyterian, I have no view on that. The system needs to be thought through, as people could be making legislation without being fully aware of anomalies that can arise. As you rightly assumed, I totally support the right of the transferors; however, it needs to be monitored in one area.

1759. Mr Stewart: That is a valid point, and it emphasises the importance of the role of community governors, as defined. The role of the Transferor Representatives Council is important, and we have always acknowledged that.

1760. It was never our intention to remove or dilute in any way the TRC’s vital participation. At any one time, the TRC provides us with some 2,000 school governors whom we simply could not replace.

1761. You are right, however, that there are other voices in the controlled sector that must be heard, and that is why the theme running through what we are attempting to do with boards of governors, particularly with the representatives’ council, is to ensure that those schools have a connexion with and understand the needs of the communities that they serve. If that connexion, which in the past was through the Churches, no longer exists, we must find different routes and connexions between schools and the communities that they serve.

1762. It can often be difficult and challenging to get sufficient numbers of people to serve as school governors. Therefore, the Churches, Protestant and Catholic, have a vital role in persuading people to put their names on lists for consideration.

1763. Mr McCausland: One of the strengths of the Catholic maintained sector is the close association between the parish and the school. The representatives who come forward are imbedded in the community; they probably grew up there, worship there and belong to that community. We must find ways to ensure the same rootedness for boards of governors in the controlled sector.

1764. Mr Stewart: I agree entirely; it is a particularly difficult challenge in some inner-city areas.

1765. Mr B McCrea: There is a gaping hole in what you are attempting to do. The appointment of governors is central to the development of autonomous, self-improving schools. Most former governors to whom I speak will not go back, for although we burden them with responsibilities we fail to give them clear guidance and support. We must find a better way to deal with the matter.

1766. You say that you seek proposals from us to encourage people to become governors again. What do you mean by consultation with existing governors? How can an existing board of governors be consulted to ensure that new governors are acceptable?

1767. Mr Stewart: Quite simply by sharing the names with them and inviting their opinions.

1768. Mr B McCrea: What happens when they yes or no, or “we’d rather have Jimmy."?

1769. Mr Stewart: It would depend on the representations that had been made. If a board of governors were to point out to us that the ESA had made a gross error by suggesting someone who is fundamentally opposed to a school’s ethos, we would, of course, think again. However, having spoken to the various sectors and to boards of governors, I am assured that that does not happen under the present arrangements. Nevertheless, although the sectors and boards of governors are satisfied with the outcomes of departmental and, indeed, education and library board appointments to their schools, they are glad that the consultation process exists as a safeguard.

1770. Mr B McCrea: That was then, and this is now. For a long time, education involved relatively little politics with a small “p"; it was administered either by direct rule or there was consensus on the way forward. Nowadays, we are having probably the most highly contested discussion about education since 1921 — people have fundamentally different opinions.

1771. If governors, and not the ESA, are to lead the charge in schools, whoever appoints governors will determine the stance that schools take. Given the disagreements resulting from the various — although legitimate — political agendas, people will be appointed to boards of governors for various reasons. If governors, rather than the ESA, taking the lead is to be the cornerstone of the new arrangements, you must consider the matter in more detail and come to us with schemas for how things should work.

1772. Incidentally, when we attempt similar balancing exercises for district policing partnerships, we are inundated with people who want to get involved.

1773. There are mechanisms set up to ensure that a balance is achieved. I am not saying that we have to do it that way, but we should consider it.

1774. There are similar examples in the Health Service of getting different representatives involved. If we are keen to get local people involved in the ESA, we will have to find a way of achieving that. It is a challenge for you, and you will need to come back to it. The situation with boards of governors is not working.

1775. Mr Stewart: We have 1,251 grant-aided schools, and that means that we have approximately 10,000 school governors. The challenge for the ESA and others is to find 10,000 willing and capable people to serve, in an important voluntary capacity, this important public service. Even if we wanted to introduce political vetting for school governors, I am not certain that we could.

1776. Of those 10,000 governors, some will support some aspects of education policy at any given time, and some will have different views on aspects of education policy at any given time, and that may vary over time.

1777. We are interested in the capacity of those individuals to lead and manage the schools.

1778. Mr B McCrea: I understand your Civil-Service approach, but the same will happen with the ESA as happened in such groups as the district policing partnerships in which organisations and political parties encouraged their activists to get involved. That is right and proper, but it has the potential to politicise an issue. You may not do it, but that does not mean that it does not happen.

1779. You said that there had not been problems before and that it worked out all right. The challenge in framing legislation is that, in the future, other Ministers or other people may take a contrary view. There is significant alarm among the governors throughout the entire school estate — irrespective of sector — about what they are being asked to do. Unless that is sorted out, we will run into the sand on the issue.

1780. There is no point in our coming backwards and forwards; we will not sort it out here and now, but you should realise that there needs to be a more detailed approach to how school governors of all sorts are appointed, selected and encouraged. The Department should focus its attention on that.

1781. I close on the issue that has returned about the ambiguity and fudge. Paragraph 27 of the submission relates to clause 34. It states that:

“The clause will place two duties on boards of governors: to exercise their functions with a view to promoting high standards of achievement; and to co-operate with the ESA in the exercise of its functions in relation to raising standards".

1782. I cannot see a problem with the first point, but what does the second point mean? What is the definition of “to co-operate with the ESA"? What does “co-operate" mean in that context?

1783. Mr Stewart: In the past, some schools have refused to co-operate with the Education and Training Inspectorate and education and library boards. Some schools have refused to allow representatives from the education and library board to be present at meetings with the Education and Training Inspectorate to discuss the outcome of school inspections. It is that refusal to co-operate that we need to address through the duty that has been proposed.

1784. Mr B McCrea: That is a reasonable condition, but one could also interpret “co-operate" to mean that ESA will, gently, tell schools what it expects them to do and that their co-operation would be appreciated. In other words, schools will have to do what the ESA tells them to do.

1785. Mr Stewart: There are no powers for the ESA — and that does not constitute a power for the ESA — to direct a board of governors. We do not expect that the ESA’s first approach will be to gently ask the schools to do as it says. Its first approach should be to gently ask the schools what they propose to do. If that answer is not satisfactory, the ESA may consider taking further action or ask the Department to take further action.

1786. I want to be clear on this matter: the ‘Every School a Good School’ policy gives no strong or draconian powers to the ESA. The strongest powers, such as the ability to change schools, close schools and remove boards of governors, are in existing legislation and rest with the Department. There are no proposals to place those powers with the ESA.

1787. Mr B McCrea: That is exactly my point. It is smoke and mirrors. You say that the powers lie with the Department rather than the ESA. However, it is not inconceivable that the ESA will say that it is having difficulties with a particular school, whereupon the Department will exercise its powers. The Committee received many submissions from people who are concerned about the potential for micromanagement by the Department or the ESA. You may understand the difference in structural issues, but, frankly, people do not see it.

1788. I fear that you need to examine the legislation in more detail. If what used to be called education and library boards and the inspectorate should combine, we have to outline their responsibilities. I know that it requires much labour, and I know that it is not easy. However, in the current climate, you will have to adopt that approach.

1789. Mr Stewart: I understand that point. On your earlier point, you face the dilemma that every legislator faces — too much power or too little power. The concern has been the lack of clarity of responsibility of standards and powers throughout the education system. In the past, the Department’s significant powers have not been used to address the worst-performing schools.

1790. In the past, our approach has been based on providing additional resources and giving schools an inordinately long time to address the serious issues that they face. Meanwhile, one or more cohorts of children pass through those schools and are failed by the education system. We aim to move to a different situation in which responsibilities and powers are clear and in which there is scope for a graduated response that begins with help, support and advice but, in the most extreme circumstances, can result in the prompt closure of a school.

1791. Mr B McCrea: What is the inspectorate’s role?

1792. Mr Stewart: The inspectorate is the key driver. Any such decisions must be evidence-based, and the Education and Training Inspectorate is the primary provider of evidence.

1793. The Chairperson: The inspector will make a presentation — which will cover clause 37 — on his report to the Committee. We will seek the inspector’s views on the matter.

1794. Mr Elliott: Chris said that the powers that lie with boards of governors and the Department will remain there in order to maintain the status quo. That is completely different to what the Committee was led to believe a couple of weeks ago about community planning. I thought that more functions, such as community planning, would move to the centre of the ESA. We can, if necessary, check the Hansard report. However, there was an emphasis that decisions on community planning could be taken by the ESA above the heads of boards of governors. Is that accurate?

1795. Mr Stewart: Do you mean area planning of curriculum and the educational estate?

1796. Mr Elliott: Yes.

1797. Mr Stewart: We draw a distinction between the running of individual schools, which is, under our policy, a matter for boards of governors, and the planning of education, where we want to move away from the separate sectoral or individual school approach to planning that we have adopted in the past. We will move to a much more planned and managed market. The ESA will be the planning authority for education. However, even at present, any development proposal for a new school, a school closure or a change in the character of a school is decided by the Department and the Minister. In that sense, it is not a change.

1798. Mr Elliott: Your submission says that child protection is the only subject in the Bill on which the ESA will have the power to direct boards of governors. Where does the responsibility lie if there a misdemeanour, or if something untoward takes place? Does the responsibility for the child protection issue lie with the board of governors or with the ESA?

1799. Mr Stewart: Clauses 47 and 48 do not change the responsibility. The duty and responsibility that goes with them rests firmly with the board of governors. The point of the clauses is to introduce a policing function to ensure that those duties are properly discharged. Our concern was that it was not sufficient to have clarity of responsibility. That, in itself, does not stop things from going wrong, and, if something were to go wrong, it would not be sufficient to come along afterwards and have an easy and effective means of apportioning blame. Therefore, we need the means to ensure that things do not go wrong in the first place. That is why we felt that it was appropriate to give the ESA strong powers to direct the board of governors in that respect.

1800. Mr Elliott: I have a concern. You will appreciate that although the power is moved to the ESA, the responsibility does not move to it. The responsibility remains with the board of governors. If the powers move, why does the responsibility not also move?

1801. Mr Stewart: It would not be feasible to transfer the responsibility of the board of governors for the day-to-day running of a school to the ESA, unless we wanted to go down a road that was contrary to the policy that we are pursuing, which is to give schools much less autonomy, or rather, no autonomy, and for the ESA to have much more centralised control. A number of members have impressed upon me that they do not want that to happen.

1802. Mr Elliott: We are talking about the one issue, which is child protection. I do not see why that issue should not be separated, as you have separated other issues for direction from the ESA.

1803. Mr Stewart: The issue relates to the way in which the school carries out its daily business, the policies and procedures that it has in place for access to children and young people — supervised and unsupervised — and the level of training and understanding that staff may have. Those matters are a school’s responsibility, and they are in the day-to-day control of the board of governors. In that sense, it would not be feasible or desirable to try to move that to the ESA. However, it is important that the ESA is in a position to ensure and challenge a board of governors, where necessary, in relation to the discharge of those responsibilities, and, more importantly, to provide the advice, help, support and guidance that goes along with that. That is why there is the corresponding duty on the ESA in relation to child protection.

1804. The Chairperson: We will have to examine that issue again in more detail.

1805. Do you see any problem with the body that will be established to own the controlled sector nominating governors, rather than the Department, or what would have formerly been the board? Aligned to that, comments were made earlier in relation to getting equity. How do you see that being played out in the maintained sector or in any other sector? In the provision, all schools are being treated the same with the appointment of community governors, and the only requirement will be that they live and work in the local community. That applies to all schools.

1806. Mr Stewart: That is taking us into slightly different territory. It is what we referred to in policy papers as “foundation governors" who might be appointed or chosen by owners of schools to represent the ethos and character of a particular school. In the policy paper, we floated a suggestion that the controlled schools ownership body might be given a role in that respect. Again, it is asking whether we should follow without question the logic that would run throughout the rest of the arrangements and draw the equivalence between that body and the owners of schools in other sectors.

1807. There are two sets of issues with that. One is whether we — and, we, in this case, is the Assembly — wish that body to have merely the narrow role of ownership and stewardship over physical assets, or whether we wish it to have a broader range of functions of which that might be one. The difficulty with that, which relates to the point that Nelson made, is that it will be a statutory public authority. The issue is the extent to which, under legislation, we can make the body as representative, as some members may wish, of the communities and schools with which it deals, bearing in mind the clear restrictions on the legislative competence of the Assembly in section 6 of the Northern Ireland Act 1998.

1808. The Chairperson: To clarify, are you saying that that is not preferable?

1809. Mr Stewart: I am asking the question and inviting members to give their views. For example, a statutory non-departmental public body might be established to take ownership of the controlled schools estate. We could not give the TRC or any other particular group of churches, for example, guaranteed representation on that body’s membership. That is the same difficulty that we ran into with the TRC’s nomination rights on governors. The Assembly simply could not pass legislation to that effect. The Speaker would not admit it to the House. It is beyond the Assembly’s legislative competence.

1810. We solved that problem with governors by leaving existing legislation intact. However, we could not constitute the controlled schools’ ownership body in the way that education and library boards are currently constituted with guaranteed TRC participation. Of course, that does mean that they would be excluded. TRC representatives could be there, having been appointed through a typical public-appointments merit-based process. We cannot make that body representative of any particular community or sector in the way that Nelson would like it to be. We simply do not have the legislative means to do so.

1811. Mr McCausland: Would there be any difficulty, therefore, in having a body that is representative of the community that it serves?

1812. Mr Stewart: I think that there would be difficulty.

1813. The Chairperson: Do you mean that there would be difficulty in making recommendations for the appointment of community governors?

1814. Mr Stewart: Sorry, I may have misunderstood your question.

1815. Mr McCausland: Is there a legislative difficulty in having a body — either the ownership body or the sectoral body — that is representative of the community that is served by those schools?

1816. Mr Stewart: Not with regard to the representative body, because it is not statutory. There would be difficulty with any statutory body.

1817. Mr McCausland: What is required legislatively at Westminster in order to put that right?

1818. Mr Stewart: A change to section 6 of the Northern Ireland Act 1998 would be required.

1819. Mr McCausland: What is the timescale for such a change? Unless there is that change, the matter cannot go anywhere.

1820. Mr Stewart: I am not sure that the timescale is the issue; it is political agreement.

1821. Mr McCausland: The point is, of course, that without political agreement to meet that requirement, there might be a Bill, but there will be no Act. The Minister tells us about equality until we are sick hearing about it. There must be equality for everyone or equality for no one. If ownership of the Catholic sector is in the hands of a body that is represented fully by that community, ownership of controlled schools must reside in a body that represents the community that is served by those schools.

1822. Mr Stewart: Unsurprisingly, the Catholic community is reflected fully in that body because the schools are in the ownership of the Roman Catholic Church. There is a difference between any church and a statutory public authority. We simply do not have the legislative means to make any statutory public authority representative of any one particular section of society.

1823. The Chairperson: Let us be honest, Chris; although they may not know all the details, the public are wise on the issue. They cannot get their heads around the fact that schools in the maintained sector, which receive 95% to 98% — I stand to be corrected — of their funding from public money, have a privileged position, while schools in the controlled sector, which is funded by public money, are subject to certain rules and regulations just because they did not insist on being treated differently in the past. If the aim is to get equality, that is a driving point. The agenda that has been set by the Minister is one of equality, and I can tell you that that is what we will end up having.

1824. Mr Stewart: I understand the issue, but it is one for political debate and discussion, and not for me to answer. The issue for the Department is quite simply the difference in legislation between a private body and a public authority.

1825. Mr McCausland: I accept the fact that it would require political agreement, but could a paper be provided that outlines the process by which that could be achieved, so that we get an indication of the timescale that is required for that legislation. That would then give us better information about when the Bill might potentially become law.

1826. Mr Stewart: If you are asking for advice on how you might secure an amendment to the Northern Ireland Act 1998, that takes us into territory that is the responsibility of the Office of the First Minister and deputy First Minister (OFMDFM), and is well beyond the remit of the Department of Education.

1827. Mr McCausland: I am simply asking for a paper that outlines the practicalities.

1828. Mr Stewart: It may be a very short paper.

1829. Mr McCausland: That may be; it might only be three or four lines.

1830. Mr Stewart: The Committee might find that refreshingly different.

1831. Mr McCausland: I am making the point that this is a fundamental issue — there is no running away from it. There is no point in our proceeding with this — we would be wasting our time unless that matter can be resolved.

1832. Mr Stewart: I note Nelson’s point, and if there is advice that we can provide on that we will do so. However, as I said, it is well beyond the competence of the Department of Education. We can, though, provide advice on where you might get further advice.

1833. Mr D Bradley: The situation that we are in today is partly due to historical circumstances. When Lord Londonderry was the Minister of Education, he wanted all schools to be state schools, and it was the Presbyterian Church that was most strongly opposed to that at the beginning. The transferors at one stage obviously saw an advantage in handing their schools over to the public authority. People may now see that as disadvantageous, but it is part of the history and evolution of education in Northern Ireland.

1834. There are now integrated schools in the controlled sector, I believe that there are one or two controlled Irish-medium schools, and there are controlled schools that are integrated because of demographics.

1835. The Chairperson: There are controlled schools that are predominantly attended by Roman Catholic children.

1836. Mr D Bradley: We are not talking about a homogenous group — that probably makes issues more difficult.

1837. There was a situation in my constituency in which a senior manager of a school was behaving in a way that was detrimental to the good running of the school. It took an extremely long time for that person to be suspended under the present system. His presence in the school over that prolonged period did irreparable damage to the health of some of the staff in the school, as well as to the good running of the school and the education of the pupils.

1838. Under the new legislation, when boards of governors have those powers, is it your view that if someone should be suspended, as was the case in that situation, that that will happen much quicker than it has happened in many cases under the present system?

1839. Mr Stewart: It is difficult for me to comment on particular cases without knowing the circumstances. I do appreciate that such situations can take an inordinate length of time to resolve. I cannot guarantee that the process will be any quicker or any slower under the new arrangements, because I suspect that it is driven primarily by the requirements of employment law rather than education law.

1840. Any board of governors or any principal faced with that situation will want to be able to act quickly, decisively and within the law and parameters of best human-resource management practice at the given time.

1841. In such situations, the role of the ESA will be vital, and the service that it provides to schools must be timely, professional and on hand. Clear advice must be available on tap to boards of governors, so that they know what they can and cannot do, and how quickly that can be achieved.

1842. The Chairperson: There may be a few follow-up questions. Thank you, Chris. Jeff and Peter had an easy run this morning.

1843. Mr Stewart: They will have to carry me out now. [Laughter.]

1844. The Chairperson: Thank you.

4 March 2009

Members present for all or part of the proceedings:
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mr Edwin Poots

Witnesses:

Mr Chris Stewart
Mr Jeff Brown
Mr Peter Burns

Department of Education

1845. The Deputy Chairperson (Mr D Bradley): Good morning, gentlemen — you are welcome back. The session will have three parts. The first will be on clauses 1 and 2— the education and skills authority (ESA) and its functions and general duty. The second p will deal with clause 9 and schedule 2 — the transfer of staff. The third part will be about clause 22 and schedules 3, 4 and 5 — the transfer of assets. I invite Chris to introduce his team and to outline how he intends to deliver the briefing.

1846. Mr Chris Stewart (Department of Education): Thank you, Chairman, and good morning, members. With me today are Jeff Brown and Peter Burns from the review of public administration Bill team. If it meets with your approval, we will make three short presentations covering the material. We will pause for questions between each presentation.

1847. As members will have noticed, I am coughing and spluttering, so I hope that my voice will hold out until the first difficult question, at which point it will probably give up on me.

1848. Clause 1 will establish the education and skills authority as a public authority. The associated schedule 1 contains the range of standard provisions that one would expect for a new public authority. They cover the status, membership, employees, governance arrangements and proceedings, and the finance and accountability arrangements for the organisation.

1849. Schedule 1(2) deals with the membership of the ESA — or what is commonly referred to as its board — and members will be aware that most members of the ESA will be district councillors. The appointment arrangements will involve a merit-based application process that will reflect the principles and the guidance issued by the Commission for Public Appointments.

1850. Schedule 1(7) and 1(8) provide the power to establish committees, including those that will be associated with the local units or teams of the ESA. Members will note that the provisions give the ESA the power to delegate functions to those committees or to employees of the organisation.

1851. Schedule 1(19) deals with the Northern Ireland Assembly Disqualification Act 1975; its effect is that MLAs may not be members of the ESA. That stems from the need to avoid the potential for a conflict of interest, given that the organisation will be accountable to the Minister and to the Assembly.

1852. Schedule 1(20) and 1(21) apply a range of fairly standard regulatory frameworks that members would expect to see applied to any public authority. For instance, the provisions will bring the ESA within the remit of the Commissioner for Complaints and within the ambit of the Freedom of Information Act 2000. As a result of being within the ambit of the legislation relating to the Commissioner for Complaints, the ESA will be a public authority for equality purposes and section 75 of the Northern Ireland Act 1998. It will, automatically, be a public authority for the purposes of the Human Rights Act 1998, because it comes under the definition in that Act.

1853. Overall, the provisions in schedule 1 are similar to those of schedule 1 in the Libraries Act (Northern Ireland) 2008. There are a few differences, which we have summarised for members in the annexe to the paper, but we do not regard any of them as being particularly significant.

1854. Clause 2 defines the functions and the general duty of the ESA. Clause 2(1) is linked to the repeals and amendments in the Bill and will assign to the ESA those functions in existing legislation that lead to transfer from existing bodies, as well as new functions that are defined elsewhere in the Bill.

1855. Clause 2(2)(a) and 2(2)(b) are significant, because they provide an overarching statement — or mission statement — of the purpose of the ESA. They focus on six key dimensions in the development of children and young people: spiritual, moral, cultural, social, intellectual, and physical. They also focus on the three main forms of education: early-years services, which are referred to in the Bill as “educational services"; schools; and youth services.

1856. The key differences from the current legislation are the addition of the social dimension of development and the more explicit recognition of early years and youth services as key components of education.

1857. The Department is considering a possible amendment to clause 2(2)(b) on youth services. On reflection, we do not think that that clause goes far enough or that its language is sufficient in reflecting explicitly the links between youth services and the various dimensions of development as the provisions for schools and early years do.

1858. We may, therefore, propose a redraft in a similar fashion and using similar language to that in clause 2(2)(a), which deals with early years and schools.

1859. Members may ask why we simply do not collapse the two provisions together and add youth services to clause 2(2)(a). However, there is a technical reason why we cannot do that. It would be extremely difficult —well nigh impossible — because of the age ranges of the services that are provided.

1860. Primary and secondary education are provided for children and young people, who, as a result of a couple of definitions in legislation, includes individuals up to the age of 19. By contrast, the age range for youth services is not defined in legislation, but, in practice, includes people up to the age of 25.

1861. For that reason, it would be extremely difficult to combine all those services in one clause. Moreover, the clause assigns to the ESA several other key overarching functions, including planning and education in clause 2(2)(c), supporting and challenging education providers in clause 2(2)(d), and providing advice to the Department in clause 2(2)(e). Clause 2(3) will place a requirement on the ESA to treat all schools equitably. That duty aims to address the concerns expressed by members and stakeholders that the ESA might experience a conflict of interest during the period when it owns controlled schools.

1862. Clause 2(4) will place a duty on the ESA to raise standards and will complement the duty on boards of governors in clause 34, which the Committee discussed last week. Clause 2(5) and 2(6) provides for the ESA to carry out administrative functions under the direction of the Department of Education and the Department for Employment and Learning. At the moment, neither Department has specific proposals in mind, but that clause is included in case we need the ESA to do some heavy lifting on our behalf. Clause 2(8) provides the definition of educational services, which is shorthand for early-years provision.

1863. The Deputy Chairperson: Schedule 1(2)(1) provides for the ESA board to consist of a chairperson and not fewer than seven or more than 11 other members. Does that number provide for the scope of expertise that will be needed to hold the ESA to account?

1864. Nelson and I are members of the Committee for Culture, Arts and Leisure, which has been examining the aftermath of the collapse of the Northern Ireland Events Company and how the Department of Culture, Arts and Leisure should ensure that its arm’s-length bodies are accountable. Part of that process involves ensuring that people on the boards of those bodies have adequate skills, expertise and training to ensure that they can perform their functions properly. Some people might describe the numbers as smallish. Might it confine the degree of expertise or could it be difficult to find the range of skills and expertise that are needed to hold such a large organisation to account?

1865. Mr Stewart: I understand and agree with your point: experience, skills and expertise are very important. The Department thinks that that number strikes the right balance between manageability and, as you rightly emphasised, securing the necessary breadth of skills, competence and experience.

1866. As your question suggested, quality is as important as the number of members on the ESA’s board. For that reason, the Department is clear that the merit principle will feature strongly in the appointment arrangements. We have stressed in the legislation the need to appoint members who have knowledge and experience in education and its various dimensions. We understand your point, and I will relay it to the Minister. We think that the current number is right, but the Minister will want to consider the Committee’s opinion.

1867. The Deputy Chairperson: The Department of Culture, Arts and Leisure has established a review team. Part of its remit is to ensure that people — such as those who will comprise the ESA board — who accept positions of responsibility are properly trained. Why will most of its members will be councillors? Will it be possible to reconcile that with the Bill’s requirement for each member to have experience in a field of activity that is relevant to the discharge of the ESA’s functions?

1868. Mr Stewart: Yes, because the latter point is not an absolute requirement; rather, it is an aim that we will strive to realise. The fundamental reason why most board members will be district councillors is the Minister’s desire to ensure local democratic accountability in the organisation. That proposal was strongly supported in several stakeholders’ consultations.

1869. There was no support for establishing the ESA as a quango, and there was widespread support for democratic accountability and for elected representatives being part of the membership.

1870. The Deputy Chairperson: You also said that part of the duty of the ESA will be to contribute to the spiritual, moral, cultural, social, intellectual and physical development of children. How do you define “spiritual" and “social"?

1871. Mr Stewart: They are not explicitly defined in the Bill, and it would be very difficult to do so. The spiritual dimension is not new; it is reflected in current legislation. The new aspect is the social dimension. The Department aims to achieve a recognition of the breadth of purpose of education; it focuses not merely on the intellect, but on the education of the whole person and on every aspect and facet of their development. We do not propose to define those terms, as it would be difficult to do so. They would mean what one would expect the ordinary, right-thinking person in the street to understand them to mean.

1872. The Deputy Chairperson: Does that not leave those terms open to interpretation?

1873. Mr Stewart: It does, but if ever there is a dispute over interpretation, a court would consider what is reasonable in the circumstances.

1874. The Deputy Chairperson: 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."

1875. What is the purpose of the caveat “so far as they are capable of being exercised"?

1876. Mr Stewart: That is one of those provision to which there may be less than meets the eye. The ESA will have a range of functions: providing support and training for governors and staff to running its staff canteen. There is not much that it can do to contribute to the high standards of attainment through running its staff canteen.

1877. Mr B McCrea: Chris, I am disappointed in all this. Paragraph 14 of your submission states that:

“Clause 2(4) will place a duty on the ESA in relation to raising standards, and is intended to be complementary to the duty on boards of governors".

1878. There is an equivalence there; in other words, the ESA can come in and deal with things.

1879. Your submission states that the Bill provides for the ESA to carry out administrative functions at the direction of the Department. Who defines administrative? That could mean anything, including staff issues.

1880. There is little point in my labouring the issue. I have tried over the past weeks to tell the Department where I thought reasonable compromises could be made; however, I see none. I would like to place on the record that we are implacably opposed to a Trojan horse. This is not about education; it is about ministerial control.

1881. Although it is slightly contentious, I would like to make a comment about page 159 of the Department’s submission.

1882. Mr O’Dowd: Chairman, are we discussing the presentation or are we discussing Basil’s interpretation of the presentation?

1883. The Deputy Chairperson: There are issues that he wants to raise.

1884. Mr O’Dowd: There are three presentations on the various clauses.

1885. The Deputy Chairperson: Mr McCrea is still discussing clause 1 and schedule 1.

1886. Mr B McCrea: I am referring to clause 1, schedule 1, on page 159 of the Committee’s briefing, if that helps, Mr O’Dowd.

1887. The Deputy Chairperson: Basil, it would be helpful if you referred to the paragraph of the submission.

1888. Mr B McCrea: Ok. Paragraph 19 deals with Assembly disqualification, and paragraph 2 deals with membership. It does not help local democracy if councillors are members of the ESA, because I am not sure about the principle of merit. The Deputy Chairperson also made that point.

1889. I do not understand why Assembly Members cannot be members of the all-powerful board. I could see some merit in it if the ESA were to be merely an administrative vehicle, but it will have powers on spiritual and social matters, among other things. Unless there is cross-party political control at MLA level, it will not work.

1890. The Deputy Chairperson: We have raised that point with you at previous meetings.

1891. Mr Stewart: I will relay members’ concerns to the Minister. Membership of the ESA is a policy decision for the Minister, and her view is that the provisions in the Bill are correct. I understand Mr McCrea’s point, but I can only explain again the purpose behind the Assembly disqualification reference. It is in recognition that, in the Minister’s view, there would be a conflict of interest if MLAs were part of the regional organisation, which would, in turn, be accountable to her and to the Assembly through the Committee. MLAs could end up being accountable to themselves or to one another. The proposals are not unusual; they mirror those for the Library Authority and for most, if not all, similar regional service-delivery authorities.

1892. The Deputy Chairperson: MLAs are also Ministers, but that does not prevent other MLAs from holding them to account. When a Department of justice is established and a Minister for justice appointed, will the Policing Board be dissolved?

1893. Mr Stewart: I cannot comment on that; I have no knowledge of policy in that area.

1894. Mr B McCrea: At some stage, a Department for policing and justice will be set up, and I understand that there will be two Assembly Committees to scrutinise it. We also have a Policing Board. Can we get legal advice on whether there is a potential conflict of interest?

1895. This is the opinion of one Minister. Can the Department find out whether there is a legal impediment to Assembly Members sitting on the regional board of the ESA? Can we seek legal advice on the matter? I would like the Department to come back on that, but I would also like the Committee to seek its own independent legal advice on the issue.

1896. Mr Stewart: There is no legal impediment to Assembly Members sitting on the regional board. The legal impediment would arise from the amendment that would be made to the Northern Ireland Assembly Disqualification Act 1975 if the Education Bill goes through. If, for any reason, that provision were removed from the Bill, there would be no legal impediment and it would be possible for MLAs to be members of the ESA. The Committee may wish to seek legal advice on the matter, but that is where we see the legal impediment arising. It is a policy decision on the risk of conflict of interest.

1897. The Deputy Chairperson: Under the current system, MLAs are also members of education and library boards, and there does not seem to be a conflict of interest there. Using that analogy, why should there be a conflict of interest in this case?

1898. Mr Stewart: If we were not proceeding with the review of public administration along current lines, the Minister of the day might have wanted to consider the matter anyway. However, that is a hypothetical situation. I can merely reiterate to the Committee that, in common with the Library Authority and other regional authorities, the administrative policy is in line with some of our ministerial colleagues: to avoid conflict of interest, members of the ESA should not be MLAs.

1899. The Deputy Chairperson: We will take Mr McCrea’s point on board and seek legal advice on behalf of the Committee. Are members content?

Members indicated assent.

1900. The Deputy Chairperson: The next member to ask a question is Edwin Poots.

1901. Mr Poots: Four years is the maximum time that someone can hold a position in the ESA. I do not necessarily disagree with that, but there might be a problem if the changeover takes place every four years and the entire board changes. Will the Bill allow for half the members to leave after the four-year term and the other half to stay for a six-year term, in the first instance, and use a rotational system thereafter?

1902. Mr Stewart: That is precisely the sort of practical arrangement that will be required. It is possible for reappointments to be made after the four-year term, although two terms is the normal maximum that the Commissioner for Public Appointments recommends. However, as you rightly said, it would place the organisation at considerable disadvantage if we renewed its entire membership at the same time. We will take all steps necessary to stagger the change, whether that involves extending or shortening appointments.

1903. Mr Poots: It makes sense for members of the ESA not to be Assembly Members, because we will be holding them to account.

1904. Mr Lunn: I am sorry to bang on about membership, but here we go again. Schedule 1 states that most of the board should be district councillors “so far as practicable". Is there room for manoeuvre?

1905. I have said this before, but we started with no democratic representation being proposed for the board. We have not stopped at the halfway point of some democratic representation and have, instead, gone straight to a position where a majority of district councillors will control the board.

1906. It is mooted that the ESA board will be made up of between seven and 12 people. Contrast that with the board of the Library Authority, which has 18 members. With all due respect to the Library Authority, the ESA board will have much more responsibility, and we are constantly being told that its budget and organisation will be huge.

1907. You mentioned merit as the basis for selection, but what about experience, cross-party representation and geographical spread? I cannot see how the board will be put together on a satisfactory basis. Councillors who have the required expertise and experience may have to be moved on four years down the line, and perhaps five more councillors with the requisite experience and expertise will have to be found. It does not sound feasible.

1908. I hesitate to suggest that the board of a public body should be made bigger. However, if the Library Authority needs 18 people, does it make sense that ESA could be run by a board of eight? Indeed, five of those eight people will need another qualification, which has nothing to do with education but is at the whim of the electorate.

1909. Mr Stewart: If you feel that there is too much local democratic accountability now, I am tempted to remind you of the Chinese proverb:

“be careful what you ask for — you might get it."

1910. The wording — that qualifications will be secured “so far as practicable" — does not give us a choice of whether to do that or not. The phrase is there to allow for the — albeit unlikely — event of insufficient numbers of councillors coming forward who wish to be members of the ESA or who prove themselves to be qualified. However, it does not give us what you called “room for manoeuvre" to depart from the principle that is in the Bill.

1911. I recognise members’ concerns that there may not be enough ESA board members. Our view is that up to 12 people is sufficient and strikes the right balance between breadth of competence, experience and manageability. Organisations with larger numbers sometimes struggle to be effective in making decisions, so the numbers that the Bill proposes are a sensible balance and compromise.

1912. The additional qualifications, competence or experience that we are looking for are not an absolute requirement. It is extremely desirable that we have members with experience in education or a related field, but it is not absolutely essential. The core principles are that the ESA will be a body with a budget of some £2 billion and with 50,000 staff delivering an indispensable public service. The quality of membership will be the key to its success; that is why the merit principle will feature strongly in the appointment arrangements.

1913. Mr Lunn: What about the inevitable problem of cross-party representation on the board? Cross-party representation is bound to be demanded, but it does not necessarily tie in with expertise and experience.

1914. Mr Stewart: Cross-party representation may be desirable, but it would be difficult, in fact impossible, for us to guarantee it in legislation. Mr Poots will be familiar with that from his time considering the arrangements for the Library Authority.

1915. We could not, for example, employ d’Hondt to achieve political balance. Ironically, that would be regarded as discriminatory and, therefore, could not be included in legislation that might be brought to the Assembly. Such provisions can be included in Westminster legislation but not in Assembly legislation, by virtue of section 6 of the Northern Ireland Act 1998, which we mentioned last week.

1916. Mr Lunn: You will be pleased to know that the Alliance Party agrees with the DUP about the Assembly disqualification rule, which is absolutely right.

1917. The Deputy Chairperson: What about Trevor’s point that although the Library Authority is a much smaller body, with less onerous responsibilities, it has more board members. The ESA will have huge responsibilities, yet it will have a relatively small board. How do you explain that difference?

1918. Mr Stewart: It is not for me to comment on other Ministers’ decisions or, indeed, on the advice of officials from other Departments. We believe that the proposed number of board members for the education and skills authority is correct. We note Committee members’ opinions on the matter, and we will relay them to the Minister. However, the short answer is that we think that we have got the number right.

1919. The Deputy Chairperson: The ESA will have quite a few subcommittees, which will mean that a small number of people will be dispersed among them, resulting in a heavy workload for those board members.

1920. Mr Stewart: I agree. However, that number can be supplemented, because members of committees will not necessarily have to be full ESA board members.

1921. The Deputy Chairperson: Nevertheless, presumably each committee will include at least one board member.

1922. Mr Stewart: That would be desirable.

1923. The Deputy Chairperson: Therefore, board members could carry quite a workload, in addition to having to attend board meetings.

1924. Mr Stewart: I recognise that possibility, and it is a fair point.

1925. The Deputy Chairperson: Does that not make a case for having more board members?

1926. Mr Stewart: We will take note of that concern. In due course, if it is deemed that ESA membership is too small and that the ESA is not fit for purpose, the Minister will consider changing it. However, at this stage, we are not convinced that more than 12 members are required.

1927. Mr Poots: How many committees do you envisage being established? Assuming that you have a good idea about corporate finance and so forth, will there be three or four? In addition, how many people will be on the committees, and will the existing appointment principles be applied? Will the committees have a majority of public representatives, and will appointments be based on merit?

1928. Mr Stewart: Appointments will be based on merit. We do not have a firm figure for the number of committee members. You mentioned the usual suspects, and we expect to see them on committees. In the past, we spoke about geographically based committees, which will be associated with local teams. There may also be committees that focus on particular themes or areas of service delivery rather than on geographical areas. At this stage, we do not propose to introduce a requirement for most committee members to be local representatives, so that may be a difference.

1929. Mr Poots: With respect to committee powers, I assume that the board will not be able to overturn a committee’s decision easily and that a committee’s recommendations will normally be approved.

1930. Mr Stewart: That will depend on the terms of delegation of functions to committees. However, as a general principle, when a function has been delegated to a committee, the body that delegates that function would not normally be expected to overturn a committee’s decisions.

1931. Mr O’Dowd: I, too, believe that it would be a mistake to have MLAs as members of the ESA board; it would be bad for democracy and bad for education. As the Deputy Chairperson said, the ESA board will be busy and may require more members. How could MLAs sit on the ESA board? They are already fully stretched. The public might say that we are not stretched enough, but we are; therefore it would be a mistake for us to be members of the board of the ESA.

1932. I am not sure where Basil was coming from. I am a member of the Assembly and Executive Review Committee that considers dual mandates and other matters. The Ulster Unionist Party members on that Committee are among the majority who do not believe in dual mandates. They also agree on whether members of the Policing Board should sit on a justice Committee, because there is already a sense of MLAs holding other MLAs to account.

1933. The legal advice was that there may be a conflict of interest — but “may" is a very big word in law. I do not understand where Basil is coming from when he talks about the democratic make-up of the board. One of the general principles of the RPA is to democratise the administration of public services, because many complaints have been made about too many quangos. Perhaps Trevor will forgive me for my next comment: if one was a member of the great and the good or a member of the Alliance Party, one was set for life.

1934. Mr Lunn: Rubbish.

1935. Mr O’Dowd: Why not ensure that appointments are made to the board through a democratic process? I am not sure what Basil’s reasonable compromises are. He attempts to portray himself as “Mr Reasonable" to the world and its media; however, when he presents me with a reasonable amendment, I will consider it reasonably, and the rest of the Committee has a duty to do the same. However, he has presented no such amendments to date. Basil’s opening comments merely confirm that his opposition to the ESA Bill is not educational but political. It is disappointing that he did not set aside his perfectly legitimate political ambitions and concerns for a time and study the RPA from a broader educational perspective.

1936. My question is —

1937. Mr B McCrea: On a point of order, Mr Deputy Chairperson. Will I get a chance to respond to that conversation at some stage?

1938. The Deputy Chairperson: I ask members to direct their questions to the officials; we are not here for a cross-party discussion.

1939. Mr O’Dowd: I was outlining the status of the debate and responding to comments that have been made.

1940. My question to the officials is about their explanatory notes on clause 2 in which youth services are separated from the rest of the services. Is nursery-school provision included in a different definition, and how will the voice of nursery schools be heard in the overall ESA equation?

1941. Mr Stewart: Technically, nursery schools come under primary education.

1942. Mr O’Dowd: Is that how their voice can be heard through the ESA mechanisms?

1943. Mr Stewart: Yes.

1944. Mr O’Dowd: Has giving further weight to the nursery element of the discussion been considered?

1945. Mr Stewart: I am not sure what you mean.

1946. Mr O’Dowd: Some nursery school providers, particularly educationalists, sense that their voice is not being heard. They feel lost in the primary school equation and fear that they will be completely lost in the ESA. Is there any way to reassure them, or are satisfactory provisions in place to ensure that the voice of nursery schools is heard? If so, are those provisions adequately resourced?

1947. Mr Stewart: That is possibly a matter of opinion or policy. We stressed the need for board members, wherever possible, to have relevant experience and knowledge. I relayed to the Minister the view that we must ensure that nursery schools are not overlooked. The same point is frequently made to us by other stakeholders, particularly from youth services and early years, which overlaps with nursery provision.

1948. Your general point is correct, and we acknowledge that concern. We are not merely a Department for schools; education is about more than schooling, although that is an extremely important element. That is why clause 2 covers every dimension of development and all three major spheres of education. It is a valid point that the membership of the ESA should reflect that and should not comprise solely schools’ representatives or representatives from any one part of the school sector.

1949. The Deputy Chairperson: John, when you made your point about nursery education, were you referring to statutory provision or were you including private, and community and voluntary provision too?

1950. Mr O’Dowd: As reflects the different voices that I have heard, I was referring to all nursery schools.

1951. The Deputy Chairperson: Does the Department have the power to include in the Bill clauses that refer to the private, and community and voluntary sectors, or is its power confined to statutory provision?

1952. Mr Stewart: It covers both. The broad term for early years in the Bill is “educational services", and that covers statutory and non-statutory providers.

1953. Mr McCausland: Comparison was made between the education and skills authority and the Northern Ireland Library Authority (NILA) in relation to membership and councillors. Do you not agree that that is not comparing like with like? There is a single library service — we do not have voluntary, controlled, maintained and Irish-medium libraries. The complexity and sensitivities of education suggest that it is not a case of comparing like with like.

1954. Therefore perhaps we need to give more consideration to the composition and size of the board — although I have no set views about how that may be done. Do you at least accept that it is not necessarily a case of comparing like with like?

1955. Mr Stewart: I do; and we do not want to give that impression. Several members have concerns about the proposed number of members of the ESA board; I recognise that, and will relay those concerns to the Minister. The legislation includes a provision that allows us to vary the number of members of the ESA quickly by Order. Therefore, if it transpires that the number is not right and there is a need for a larger membership, that could be addressed fairly quickly.

1956. Mr McCausland: Have you given any thought to the possible number of committees and subcommittees? If you have compared the new body with other public bodies, you must have some idea of its human resources and finance needs. Have you given any thought to what the time commitment may be for people who are members of the ESA board?

1957. Mr Stewart: Rather than giving you a figure about the number of committees off the top of my head — which may be unhelpful — I am conscious that we owe the Committee a paper that we offered some weeks ago, setting out in more detail what we propose for the local structure of the ESA; particularly the role and composition of committees.

1958. If it would be helpful, our thinking to date on the number of committees could be included in that paper. I am not certain how much information we could offer at this stage on what the time commitment may be, but I will take that query back to the Department and give it some thought.

1959. Mr McCausland: Briefly, under the current regime, 40% of an education and library board’s members are drawn from local authorities. I do not know about any other education and library boards, but in the Belfast Education and Library Board — and I declare an interest in that regard — it was done by proportionality.

1960. You said that it would require Westminster legislation to have proportionality in councillor representation to make sure that it is reflective. If it were left to the Department or to the Minister, some people could be sceptical about the reflectiveness and appropriateness of how the process operated.

1961. Mr Stewart: I am not sure whether that was a comment or a question.

1962. Mr McCausland: The first part was a question; the second part was a comment.

1963. Mr Stewart: I am grateful for the clarification. It would require an amendment to Westminster legislation. When colleagues in DCAL examined the composition of the Library Authority and how they could bring about cross-party representation in its membership, they thought that they had the obvious answer: apply a d’Hondt-type mechanism. They merrily proceeded on that basis.

1964. For the sake of completeness, they checked with legal advisers whether that was sound. They were surprised — as we were — to learn that not only was it not sound, but that it would be unlawful. They could not proceed on that basis.

1965. There is no easy or straightforward way for us to include a mechanism in the legislation that would guarantee such an outcome. There are always tensions in any mechanism that attempts to ensure a balance between elements such as political opinion, gender or geography and the merit principle. Those factors are not completely incompatible and the tensions are not insuperable, but we would encounter considerable difficulty in trying to guarantee a particular political representation or outcome in the Bill.

1966. Mr McCausland: I am glad that it is not impossible to reconcile those two factors of having some form of proportionality and ensuring that board members have certain competences and skills, because sometimes people would simply throw their hands up in horror and say that that cannot be done. It may be complex, but it is possible. Does all this architecture not become incredibly complex because of the nature of education and the sensitivity and complexities around it? We should not necessarily dismiss concerns about it.

1967. Mr Stewart: That is exactly right, and we do not seek to dismiss them. The merit principle will need to feature centrally in the appointment arrangements. We will want to seek advice from the Commissioner for Public Appointments on the best practice for striking a balance between, or reflecting appropriately, the merit principle and ensuring that there is an appropriate spread of representation and composition in the body so that it enjoys widespread trust and confidence.

1968. Miss McIlveen: Clause 2(5) and 2(6) provide for the ESA to carry out administrative functions under the direction of the Department of Education or the Department for Employment and Learning. Do you know what the extent of that may be? What direction will come from DEL and will it provide funding to pay for the functions that are carried out? Does that mean that there may also be a representative from DEL on the ESA board?

1969. Mr Stewart: On the latter point, no; there have been no proposals for a DEL representative. If DEL wished to have functions carried out, there would be an associated payment. At present, neither Department has anything specific in mind. It became apparent to us as the Bill was being developed that the scope for which such clauses such can be used is quite narrow.

1970. Earlier, Basil asked what is meant by administrative functions. I have to say candidly that it means less than we thought it meant at the beginning of the process. We had several functions in mind to be covered by those clauses — one of them was the payment of teachers’ salaries and pensions, which is currently with the Department. We thought that we might be able to use that provision to move that function from the Department to the ESA. The advice that we received from lawyers was that we could not do so.

1971. Where a function is specifically reflected in statute, all-purpose clauses such as clause 2(5) and 2(6) cannot be used to move that function from one statutory authority to another. That clause refers to low-level administrative functions and, therefore, is likely to be of much less use to us than we thought it might at the beginning of the process.

1972. Miss McIlveen: One of the purposes of the ESA was to reduce bureaucracy and make efficiency savings. Will you be mindful of the cost of setting up committees and subcommittees? Their members will have to be paid and there will be general expenses associated with them.

1973. Mr Stewart: We will be mindful of that, but we will have to strike a balance between doing that and ensuring that the organisation is fit for purpose, bearing in mind members’ concerns about the number of members on the ESA, the number of committees, the potential workload, its importance and complexity. We do not want to spend money on the administration of the ESA that would be better spent in classrooms or on early-years provision or youth groups.

1974. However, the organisation must be fit for purpose; it must account to the Department and to the Committee for the £2 billion of taxpayers’ money that it will spend each year and for the education service’s standards of achievement. Its committee structure must be equipped to do that.

1975. Miss McIlveen: I am genuinely concerned that we may end up with even more bureaucracy because each time officials come to the Committee, there seem to be more and more people getting involved in the operation of the ESA.

1976. Paragraph 11 of your submission says that the Department is considering an amendment to clause 2, which concerns youth services. Would that amendment deal with transferring those services to local councils?

1977. Mr Stewart: There are no proposals to transfer those services to district councils.

1978. Mr Lunn: John mentioned the disqualification of Assembly members from the ESA board. He said that if MLAs are as busy as they ought to be, there is no way that they would have time to apply themselves to something as rigorous as the ESA board, never mind a conflict of interest arising. Let us hope that, come June 2011, district councillors will have much more responsibility. Although, with the way things are going — the Minister is holding onto her fiefdoms — district councillors may not be as busy as might have been expected. However, they will be fewer in number and busier. Could that cause a problem? Even a busy district councillor could face a conflict of interest, given his duties as a member of the ESA and pressure from his constituents.

1979. Mr Stewart: There is always potential for a conflict of interest when anyone holds more than one public office. The ESA would need to ensure, through its standing orders or instruments of governance, that there are proper arrangements for addressing potential conflicts of interest. There is a significant difference between that and the systematic conflict of interest that could arise if MLAs were members of the ESA. That is where we draw the distinction. Councillors will have a considerable workload — being a councillor and a member of the ESA would be a significant challenge. There is no point in denying that.

1980. Mr McCausland: If an MLA is a member of an education and library board, we can see how stretched they are — even if they are a member of a board whose every meeting they can attend because it is comparatively near Belfast. How could an MLA discharge their duties as a member of such a big body with such huge responsibilities as well as do their work as an MLA? It is not feasible.

1981. Mr B McCrea: As a busy MLA, I sit on the Education Committee and the Policing Board. If I were given the opportunity to become a member of the ESA, I presume that I would not sit on the Policing Board. That is how you find the time.

1982. I will say one thing in response to Mr O’Dowd: we oppose these provisions because they are not about education; they are about politics. That is our position. We have made our position on the way forward in education clear in the Assembly; if he wishes to talk to me about it, he may.

1983. Mrs M Bradley: For several years, I was a member of an education and library board. After being at the Assembly for a year or so, I realised that I could not do justice to the education and library board. For that reason, I felt that I had to resign.

1984. The Deputy Chairperson: Schedule 1(14) deals with finance. The Committee compared the Libraries Act (Northern Ireland) 2008 and the Education Bill. Schedule 1(15)(3) of the Libraries Act (Northern Ireland) 2008 states that:

“the Authority shall pay to the Department all sums received by it in the course of, or in connection with, carrying out of its functions."

1985. The Department in question is DFP. Why is a similar provision not in the Education Bill?

1986. Mr Stewart: Those are commonly known as “appropriations and aid", by which a Department or public authority receives a significant income stream. That schedule of the Libraries Act (Northern Ireland) 2008 reflects the standard arrangement for returning that money to the centre. We did not see a need for that in the Education Bill, simply because the ESA will not receive significant sums of money.

1987. Mr Lunn: Can the Library Authority borrow money?

1988. Mr Stewart: I am not sure, but we have specifically excluded that from the ESA.

1989. The Deputy Chairperson: The Council for the Curriculum, Examinations and Assessment brings in money.

1990. Mr Stewart: It does. Its arrangements will carry forward into the ESA. However, we did not see a need for an arrangement similar to that in the Libraries Act.

1991. The Deputy Chairperson: Why not?

1992. Mr Stewart: I am not sure what DCAL’s thinking was on the Library Authority. However, a similar need simply has not arisen in the Department of Education.

1993. The Deputy Chairperson: Perhaps you should look into the matter.

1994. Mr Stewart: I will. However, I am afraid that I cannot comment on DCAL’s thinking on the matter. I will look at it again with regard to the ESA.

1995. The Deputy Chairperson: Page 186 of the same document relates to schedule 1(7)(5) to the Health and Social Care (Reform) Act 2009, which states that:

“Every member of a committee who, at the time of appointment, was a member of the Regional Board shall, on ceasing to be a member of the Regional Board, also cease to be a member of the committee."

1996. Is that not the case with ESA?

1997. Mr Stewart: I am not entirely familiar with that provision of health legislation. In the Education Bill we have not insisted that every member of a committee must also be a full member of the ESA. That being the case, it would not be logical to have an equivalent provision to require someone to stand down from a committee if that person also stood down from ESA.

1998. Mr O’Dowd: Sub-paragraph (3) states that:

“A person who is not a member of the Regional Board shall not, except with the approval of the Department, be appointed to a committee."

1999. Does that not give the Health Department leeway to alleviate any discrepancy?

2000. The Deputy Chairperson: That allows a person to be appointed.

2001. Mr O’Dowd: Aye. However, if I have picked up your point correctly, my understanding is that if someone leaves the board, he or she must also automatically leave the committee and — I know that we are talking about the Health Department — the Department cannot, in those circumstances, reappoint someone to the committee.

2002. Mr Lunn: I think that it says the same thing in schedule 1(7)(2) to the Education Bill, which is also on page 186.

2003. Mr Stewart: There is a similar requirement for departmental approval of committee members when they are not members of the ESA. That is correct.

2004. The Deputy Chairperson: OK. We will move to the next presentation, which is on the transfer of staff. The matter is dealt with in clause 9 and schedule 2 to the Bill. The lion’s share of the work has fallen on your shoulders, Mr Stewart.

2005. Mr Stewart: It always does. It is well deserved.

2006. The Deputy Chairperson: Your colleagues have an easy time.

2007. Mr Stewart: Thank you, Deputy Chairperson. As you say, clause 9 and schedule 2 deal with the transfer of staff from the employment of boards of governors to the employment of the ESA by means of staff-transfer schemes. That transfer is intended to take place on 1 January 2010, subject, of course, to the will of the Assembly. However, as we have discussed over the past couple of weeks, it would need to be commenced earlier than that; indeed, at Royal Assent. That is to allow the Department to draw up the necessary transfer schemes in time for them to be implemented on 1 January 2010.

2008. Schedule 2 sets out the detailed provisions that will govern the transfer. Those are consistent with similar provisions in other review of public administration legislation and with the guiding principles that have been issued by the Public Service Commission. I want to draw three points to the Committee’s attention.

2009. First, at paragraph 2(4), there is reference to the Transfer of Undertakings (Protection of Employment) Regulations 2006, which are more commonly referred to as TUPE. The effect of the provision is that TUPE regulations will apply, which means that staff will transfer on their existing salaries and terms and conditions of employment.

2010. Schedule 2(6) and 2(8) extend that a little further and deal with pensions; they provide that staff will be afforded pension protection.

2011. Staff rights to acquire pension benefits, when taken as a whole, will be the same as, or no less favourable than, those that they enjoyed before their transfer.

2012. Paragraph 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 deals with continuity of action. That provision ensures that actions that former employers have taken in respect of employment will remain valid and that actions that former employers take at the time of transfer can be carried on by the education and skills authority as if it had initiated those actions in the first place.

2013. The Deputy Chairperson: You said that the Transfer of Undertakings (Protection of Employment) Regulations 2006 will apply. Will that not mean that the education and skills authority will have to deal with a plethora of staff who had different terms and conditions of service with their previous employers? Could that not raise equality and job evaluation issues and cause the education and skills authority a huge headache?

2014. Mr Stewart: It certainly means that there will be groups of staff in the organisation, at least initially, who have significantly different terms and conditions. The regulations will provide some scope for equal opportunities and equal pay claims; there is no doubt of that. The education and skills authority will have to manage that significant challenge. However, I have no doubt that the aim of the organisation will be to harmonise and equalise terms and conditions for all staff over time.

2015. However, that needs to be done in the normal way, through negotiation and engagement with staff and trades union representatives. Bearing in mind the provisions in contracts of employment, the education and skills authority cannot simply ride roughshod over terms and conditions. That harmonisation will have to be negotiated and worked through over time.

2016. The Deputy Chairperson: Has the chief executive designate begun any negotiations with trades unions, teachers or others, in the interim before the Bill is enacted?

2017. Mr Stewart: The chief executive designate has yet to hold any specific negotiations. At present, Gavin Boyd and his team are working on the draft transfer schemes and are engaging closely with trades union colleagues on that. I do not think that Mr Boyd needs to look at particular terms and conditions just yet to examine how they might evolve over time. Mr Boyd and his colleagues are also talking to existing employers about the Transfer of Undertakings (Protection of Employment) Regulations 2006, as they place certain responsibilities on existing employers to engage with staff to ensure that they are properly informed and consulted about the transfer.

2018. The Deputy Chairperson: In the interim between the education and skills authority’s being set up and the harmonisation of a plethora of various conditions of service, is there not the danger of gridlock if individuals decide to pursue cases?

2019. Mr Stewart: It is difficult to comment on possible gridlock without going over all the facts and figures on the degree of variation. However, we are aware of the possibility. I assure you that the education and skills authority implementation team (ESAIT) is aware of it and takes it very seriously. At present, I do not think that it is possible to predict exactly what will happen.

2020. The Deputy Chairperson: Is there a plan to bring about harmonisation?

2021. Mr Stewart: No; not at present.

2022. Mr Lunn: Is there anything in the regulations about the transfer of staff that is unique to this situation or are they fairly standard?

2023. Mr Stewart: To the best of knowledge, the regulations are standard and consistent across the RPA.

2024. Mr Lunn: That is how it looks. It is complicated, but well rehearsed.

2025. Mr Stewart: There are the usual complications.

2026. The Deputy Chairperson: Given the headache that could arise from the harmonisation of terms and conditions of service, would it not be sensible for the education and skills authority and the chief executive designate to attempt to scope any potential problems and to formulate a plan of harmonisation now rather than wait until the authority has been set up?

2027. Mr Stewart: That is a sensible suggestion. I expect a degree of consistency on the extent of that variation among the five education and library boards. I am hopeful that there will not be a major difference among the boards and the CCMS. There is, perhaps, greater scope for variation in schools, particularly those that are currently employers. There is consistency in employers’ terms and conditions, but not always in the application of those terms and conditions. Nevertheless, your suggestion is valid, and we recognise the risk. Like all risks, it should be managed and scoped early.

2028. The Deputy Chairperson: There is, presumably, some equivalence between the maintained and controlled sectors at the moment; however, the difficulties arise with voluntary grammar schools. Such problems have already arisen with classroom assistants, whose terms and conditions are still under consideration and whose jobs are still being evaluated even though that process is almost complete for board staff.

2029. Mr O’Dowd: The job evaluation process has been under way for many years and has brought many workforces’ terms and conditions into line. The advantage of a single employing body is that any future job evaluation will encapsulate all staff. Is that the type of process that Gavin Boyd, or whoever, must adhere to in future?

2030. Mr Stewart: He will have to do so where there is a need for job evaluation. The process to which Mr O’Dowd refers has been under way for many years, and the Public Accounts Committee has sharply criticised the Department’s stewardship of the matter. A clear message and key recommendation that arose was that the Department did not ensure sufficient consistency and commonality of process and practice across the education and library boards and the various organisations. We have learnt that lesson, and, as Mr O’Dowd rightly says, it is a key plank of the rationale for establishing a single employing authority for education. In future, it will protect the interests of staff and of the taxpayer, and the recent job evaluation difficulties should not arise again.

2031. The Deputy Chairperson: After the classroom assistants’ dispute, the Minister announced that she will initiate an education workforce review, as the matter is related to terms and conditions of service. Has there been any correlation between the Department’s review and the ESA’s work to ensure harmonisation of terms and conditions?

2032. Mr Stewart: I cannot comment on that matter, because I am not closely involved in the workforce review. If it is helpful, I will investigate the matter when I return to the Department.

2033. The Deputy Chairperson: It would be useful to ensure that there is dialogue on that front. We will move to the presentation on clause 22 and schedules 3, 4 and 5, which relate to the transfer of assets.

2034. Mr Stewart: Clause 22 outlines the scope of the three schedules. Schedule 3 deals with the transfer of the assets, liabilities and staff of the various dissolved bodies to the ESA on the appointed day; schedule 4 addresses the transfer of certain assets and liabilities from the Council for Catholic Maintained Schools before the appointed day; and schedule 5 outlines arrangements for the transfer of certain staff from the Department to the ESA on the appointed day.

2035. We intend that the provisions will commence on Royal Assent so that the Department can draw up the necessary transfer schemes before the appointed day. However, with the exception of schedule 4, the schemes will not come into operation and the transfers will not take place until the appointed day. The slightly different approach in schedule 4 stems from the fact that some CCMS assets ought to be transferred to the Church rather than to the ESA, because they were funded by the Church in the past.

2036. The schedule would allow for those assets, and any associated liabilities, to be identified and transferred to the Church before the appointed day. Thereafter, all other assets and liabilities of the CCMS would transfer to the ESA on the appointed day by means of a scheme under schedule 3 rather than schedule 4.

2037. Schedule 3 is similar in construction and effect to schedule 2, but there are a couple of points to emphasise. Paragraphs 1 and 2 contain exclusions for assets and liabilities that relate to libraries’ matters, which would transfer to the Library Authority rather than to the ESA. Likewise, where the continuity of action provisions relate to libraries’ matters, they point to the Library Authority rather than to the ESA.

2038. Schedule 4 is similar, but, again, the continuity of action provisions relate to the Church rather than to ESA. Schedule 5 is similar in construction and effect.

2039. The Committee will be aware of the Executive’s decision that Civil Service staff who transfer to the ESA and other RPA organisations will be offered a choice between permanent transfer and secondment. That does not require a change in legislation. Permanent transfers will be dealt with under the provisions in schedule 5, while secondments will be dealt with by provisions in schedule 1(5)(6) and 1(5)(7).

2040. The Deputy Chairperson: Will school buildings be included among the assets that are returned to the Church? Would all assets be covered by legal agreements that could be easily identified?

2041. Mr Stewart: The assets are office premises rather than schools; schools are already in the ownership of the Church and will remain there. They are office premises that are formally in the ownership of the CCMS but which have been gifted to the CCMS by the Church or funded by the Church in the past.

2042. Where the Department has invested in improvements to premises that were funded or gifted by the Church, arrangements may have to be put in place so that the Department can clawback its share of the money. It is in recognition that although the CCMS is a public authority not all its assets are publicly funded. Natural justice suggests that they should be returned to the Church, whence they came. All publicly funded assets will transfer to the ESA on the appointed day.

2043. The Deputy Chairperson: What arrangement will the Department have to clawback its investment in premises?

2044. Mr Stewart: It will depend on the agreement that was put in place, but, essentially, we will get back what we put in.

2045. The Deputy Chairperson: Is that in the existing agreements?

2046. Mr Stewart: Where there are existing agreements in place, yes. I would need to study the detail.

2047. The Deputy Chairperson: What happens where there are no existing agreements?

2048. Mr Stewart: There may or may not be existing agreements, but there will be in every case clear detail of the ownership and level of investment that the Department has made in an asset; we will ensure that we get out what we put in. The legislation is drafted to allow for that. It is for the Department to make the necessary transfer schemes in either case. The Department will need to be satisfied of the need to transfer an asset to the Church. The default is that anything that is not transferred to the Church transfers to the ESA.

2049. The Deputy Chairperson: You say that there will be records of investment made by the Department in those premises, and to use your words:

“We will get back what we put in."

2050. Is there a formula for that?

2051. Mr Stewart: I would need to check on the detail and come back to the Committee.

2052. Mr O’Dowd: Will the process be governed under the Department of Finance and Personnel guidelines and procedures? There is already a set statutory process to which all Departments must adhere.

2053. Mr Stewart: It will; and DFP will look very closely at what we do to ensure that we adhere to that guidance.

2054. The Deputy Chairperson: Would there not be a massive legal task in the conveyancing of properties back to the Catholic Church or of assets back to the Department? Will that not create the kind of huge administrative burden that the ESA is being set up to avoid?

2055. Mr Stewart: There will be a significant administrative task in transferring all the assets, including those of the education and library boards. Those assets must be identified, listed and catalogued, and all the necessary legal documentation transferred and amended in order to make the change.

2056. The transfer back to the Church of a relatively small number of properties will not be a major element of that huge challenge. The Deputy Chairperson is right that the task is big, but it is unavoidable. The asset base in the controlled sector alone is worth some £2·3 billion. The Department must ensure that the transfer is legally sound and watertight.

2057. The Deputy Chairperson: Finally, do the transfer-scheme provisions in schedule 5 take into account procedures that are required to address the rights of Civil Service staff?

2058. Mr Stewart: I am not sure that I understand the question.

2059. The Deputy Chairperson: Presumably some of the staff moved from the Department will be Northern Ireland Civil Service members. Will their rights be protected in schedule 5?

2060. Mr Stewart: Yes; there will be consistency. Anyone transferring to the ESA permanently will no longer be a civil servant; they will lose their Civil Service status. Nevertheless, the protection will be similar to that afforded to staff transferring from other organisations. TUPE — and the level of pension protection — will apply.

2061. The Deputy Chairperson: In the absence of any other questions, I thank the witnesses and have no doubt that we will meet again before very long.

11 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill

Witnesses:

Dr Evelyn Dermott Mr Brett Lockhart Mr Finbar McCallion		Governing Bodies Association
Mr Shane McBrien Mr Stephen McConnell Mr John Robinson		Northern Ireland Voluntary Grammar Schools’ Bursars Association
Mr John McGrath Mr Chris Stewart Ms Eve Stewart		Department of Education

2062. The Chairperson (Mr Storey): You are very welcome. However, I am afraid that I must vacate the Chair and hand over to Mr McCausland.

(The Acting Chairperson
[Mr McCausland] in the Chair)

2063. The Acting Chairperson (Mr McCausland): I welcome the representatives of the Governing Bodies Association. I remind members that four additional stakeholder responses have been added to the papers for today’s evidence session. There is also a spreadsheet, which groups stakeholders’ comments by clause or schedule. It is an interim version, but it comprises the most substantial responses that have been received to date. Members will be provided with an updated version as soon as possible.

2064. I will now hand over to Dr Evelyn Dermott, Mr Brett Lockhart and Mr Finbar McCallion. You will have 10 minutes to make your presentation and then we will move into questions.

2065. Dr Evelyn Dermott (Governing Bodies Association): Thank you for your invitation to present the Governing Bodies Association’s (GBA) position on the Education Bill to the Committee. As members know, we have expressed grave concerns about several aspects of the proposed legislation in meetings with departmental officials and in correspondence with the Minister. We are pleased to have this opportunity to present our concerns to the Committee.

2066. I trust that members have been provided with copies of our written submission and the correspondence between the GBA and the Minister. As time is limited, I will not go through the whole submission paragraph by paragraph; however, I will group the paragraphs and tell you which ones I am speaking to. I hope that that is acceptable.

2067. I will begin with paragraphs 1 to 4. The main purpose of the Education Bill is to set up the Education and Skills Authority (ESA). That body will become the largest education authority in western Europe. It will be an all-powerful controller of every aspect of schools provision in Northern Ireland, and so, it cannot but become a huge and enormously expensive bureaucracy. The original aims of education reform, which we supported, were to reduce bureaucracy, release additional funds for services and develop targeted support for schools. We still want to support those aims. However, the proposals for the ESA indicate that it will be an enormous and costly bureaucratic controlling body, which will have ultimate responsibility for all significant decisions on the running of schools.

2068. The GBA is concerned that the ESA, as outlined in the Bill, will, inevitably, become an ever-growing bureaucracy, with no restriction on the proportion of the education budget that it can accrue unto itself. Among other things, it will be the employer of all staff and the sole procurement authority. It will have powers to appoint, remove and replace governors. It will standardise the schemes of management of our schools, and it will determine the precise role of every school through area planning. In contrast to that all-empowering body, the GBA would like to see an ESA that would enable, facilitate and support — not control.

2069. Paragraphs 5 to 10 make it clear that the ESA will be the employer of every person involved in education. Staff will be employed in our schools, not by our schools. All attendant responsibilities will, therefore, rest with this remote juggernaut organisation.

2070. We have expressed grave concerns regarding that aspect to the Minister. In her reply, the Minister has given us assurances for which the Bill provides no statutory basis, and that was the bottom line of our concern. She said that some schools may wish to be responsible for all employment matters; but there are no clauses in the Bill to match that statement. We submit, therefore, that clause 3(1) be amended as suggested in paragraphs 8 and 10 of our submission. Our proposed amendment would mean that the schools that did not wish to assume responsibility for employment would have those responsibilities assumed by the ESA. However, a board of governors that chose to do so could continue to act as employer subject to the normal strictures of employment law.

2071. Paragraphs 11 to 13 deal with the principle of autonomy and protection of the ethos of our schools, which, as you know, we hold dear. The GBA maintains that the principle of autonomy and protecting the ethos of schools should be enshrined in law. Ethos-protection provisions are included in the Education (Northern Ireland) Order 1998, and there is no reason, in principle, why ethos protection could not be included in the Bill.

2072. The GBA wishes to have those principles as rights within law. We cannot be satisfied with non-binding intentions, such as those expressed in the Minister’s correspondence. The GBA submits that if the Minister and the Department are genuinely committed to preserving ethos and maximising autonomy in school governance, the present legislative model will require an amendment. It could be done.

2073. Paragraphs 14 to 22 refer to school governance and management, which also come into the Bill. They are areas of great concern. As the Bill is drafted, the powers of the ESA will not only allow regulation of membership of boards of governors, it will allow total control over their procedures to control school schemes of management. We consider that that is excessively bureaucratic and will give power to intervene in all aspects of school management to an unprecedented degree. Again, the Minister’s written sentiments are contrary to the Bill. I refer members to paragraphs 17 and 18 of our submission. Regardless of whether it is the desire of the Minister, the Bill allows intervention in school management to an unacceptable level.

2074. Paragraphs 20 and 21 also deal with governance. The ESA will have powers to intervene if it decides that a school is underperforming. We submit that the need for the centralised intervention in school governance must be predicated on the objectively verifiable and continuing need for that intervention.

2075. I remind the Committee and everyone who is interested in education that good schools and school improvement come about by good leadership and inspired teaching, not by an overwhelming bureaucracy.

2076. The ESA, therefore, should not be given the powers of an inspectorate. Our submission suggests that relevant clauses be aligned with the Schools Standards and Framework Act 1998 so that such powers reside with the Department of Education, not with the ESA. That would be much more appropriate.

2077. The GBA has seen no compelling argument as to why governance-oversight arrangements that apply in England and Wales cannot also be appropriate in Northern Ireland. We invite the Committee to reflect on the comparative bureaucratic and resource costs involved in the GB scheme as opposed to those that will arise from those that are proposed in the Education Bill.

2078. The Acting Chairperson: Has the GBA met with Department of Education officials? The Minister’s letter of 24 February 2009 made that suggestion.

2079. Dr Dermott: We declined that invitation.

2080. The Acting Chairperson: Was there a reason for that?

2081. Dr Dermott: The reason was to do with time.

2082. Mr Finbar McCallion (Governing Bodies Association): There was also an issue in that the Minister was implying that we did not understand the Bill, and that her officials would explain it to us. We had already had discussions with the officials, who explained the Bill to us and told us that the ESA would be the employer of all teachers. It seemed strange to go back and be told the same thing again.

2083. The Acting Chairperson: On the basis of clause 8(2), the Department of Education states:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

2084. If model employment schemes and the associated guidance were to set that out clearly — along with other points that you consider need to be clarified — and if those were subject to full consultation with submitting authorities, possibly with an independent appeals system and/or subject to Assembly regulation and control of ESA guidance and model schemes, would some of your key concerns be removed?

2085. Mr Brett Lockhart (Governing Bodies Association): There is no doubt that the legislation expresses a desire to retain the principle of accountable autonomy and that the structures and the architecture of the legislation are such that the ESA will try to give effect to the decisions that are made. The concern is that issues of conflict will cause a problem. When such issues arise, a school takes its own decision. It must comply with the law, and if it does not, it must face the consequences. Schools protect and guard their own ethos, and they, ultimately, make the decisions.

2086. If there were a tribunal, there would be a question about who the respondent would be: the answer is that it would be the ESA, because it would be the employer. A school may have all the schemes that it wants, and the ESA may say that it will give effect to the school’s desires, but the retention of discretion remains with the ESA. If there were a major issue in a school and a teacher were sacked, the ESA would defend that decision. The ESA, for all its desire to maintain ethos, will be a huge bureaucratic organisation that will not, with the best will in the world, do that in the way that schools are able to do.

2087. For example, in the 1930s, the Protestant Churches decided that they could entrust the control of their schools to the state. All sorts of promises were offered, and the Churches accepted them. For years, Protestant ministers had ex officio positions in controlled schools. Recently, the Transferor Representatives’ Council, which is the representative body for the Churches in those schools, was informed that they can no longer have ex officio positions because that would be in breach of equality legislation. The ex officio positions were removed from Stranmillis University College because it was decided that that was in breach of equality legislation.

2088. A plethora of instances and opportunities exist for debate and disagreement on what is stated in the Human Rights Act 1998 or in equality legislation, and on the obligations for schools. The ESA will be the body that has to defend that. With the best will in the world, that will not happen. Realistically, schools must defend their position. They have done so successfully for generations, but someone has now decided that he or she has a much better idea. The opportunities for dispute are legion, and the idea that the ESA will somehow be able to take on board each and every ethos and represent them in other jurisdictions and forums is fanciful.

2089. Mr Lunn: You said that the ESA will become a monolithic structure, and that it will be costly, overly bureaucratic, and totally controlling. Setting aside the element of control, on what do you base your assertion that it will be costly?

2090. Dr Dermott: It is perfectly simple: the amount of work that it will have to do will mean that it will have to employ a legion of people.

2091. Mr Lunn: Is that similar to the present situation with the boards? The ESA is intended to save money: how did you assess that it would cost more?

2092. Mr McCallion: One problem with the ESA is that the Bill places no financial control on it. In paragraph 6.14 of his report, Professor Bain highlighted that school boards of governors in Northern Ireland receive 62% of the education budget to manage their schools, whereas schools in England typically receive more than 80%. Is that because the English are more generous? No; it is because the law in England states that local education authorities (LEAs) must drive up the percentage of money that goes directly to schools. The Education Bill does not contain such a provision and, therefore, the ESA, by its nature, must acquire the money slowly.

2093. We are also concerned about the situation of primary schools in Northern Ireland. The amounts of money received per pupil in Northern Ireland and Wales are similar, yet the amount that goes to each primary school here is £500 less than in Wales. It is not that the Welsh are less generous, but that the bureaucracy in Wales squeezed the money out into the schools. The problem for voluntary grammar schools is that when we dealt with the Department in the past, we managed to get about 90% of our budget, because the Department did not hoard the money. The difficulty with the boards is that they tended to expand their facilities and services.

2094. Almost 10% of Northern Ireland’s Budget is earmarked for particular issues, which is a much higher figure than Congress in America is complaining about. Northern Ireland has an enormous number of issues for which funding has been earmarked, and the problem is that those issues are difficult to control. At present, local people can complain to the boards, but the ESA will be a much more centralised and centralising organisation. People who live in Armagh can get in touch with the chief officer of the Southern Board, as some members have probably done. You also know where to find Barry Mulholland of the Western Board. However, what will happen when there is one central board, regardless of where the ESA may be located?

2095. People are able to reach the boards because their councillors talk to them monthly or even weekly. I sat on the Belfast Board, and I know the amount of pushing and shoving that goes on between boards and councillors. However, even with that, the boards took too much money. RPA was intended to address that problem.

2096. The problem for us is that we are going into a scheme, under RPA, which is intended to save money. However, there is nothing in the Bill stating how the money will be saved or specifying the percentage of money that should be used by the ESA. I do not mind whether it is 5% or 10 %, but a percentage must be fixed. As the Bill does not fix a percentage, it is likely that when we return in two or three years’ time we may discover that the ESA is spending 30% of the money, and we will be told that that is a success.

2097. Mr Lunn: Perhaps we can take up that point: you certainly made it forcefully. However, it is only your opinion that the ESA will be monolithic, huge and expensive: you have no calculations to prove that. You have an impression that that will be the case as, in fairness, do many others. However the ESA has calculated that it will make savings; not more expense.

2098. Mr McCallion: I think that their savings are based on the expenditure of the boards. One needs to compare those savings with what is happening elsewhere in, for example, GB. In the Republic of Ireland, the Committee on Education and Science takes a lower percentage of the budget than bureaucracy in Northern Ireland.

2099. We have been frightened. There are currently five chief officers of the boards plus the head of the CCMS. Initial plans for the ESA proposed that there should be eight such people, as well as a chief officer of the ESA, which makes nine, plus one for the Library Authority. Therefore, six people would be replaced by nine, or 10, depending on what way it worked out.

2100. Perhaps that was a mistake, and perhaps it has been changed. However, there is vigilance. Our fear is that the Bill does not provide for that. If six chief officers did the job previously, then having nine — which seems a lot — or even eight, seven or six seems like too many if one is trying to save money.

2101. Mr Lunn: You have already mentioned your concerns about employment rules and the fact that the ESA will be the ultimate employer. The Department’s response to your submission contradicts everything you say. Nelson has already mentioned the key point that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

It also states:

“However, the proposed arrangements do not involve any real or practical loss of autonomy, as boards of governors will remain responsible for the exercise of employment functions within their schools, and will take employment decisions the ESA will be under a legal duty to put into effect."

2102. I know that your response will be that it does not say that in the Bill.

2103. Mr Lockhart: Of course, it does not.

2104. Mr Lunn: The Department’s view is that that is already provided for in the education Orders that the Bill supplements. There is a clear difference of opinion.

2105. Mr Lockhart: The fact is that the Bill has been looked at by all sorts of lawyers. I have not found any of them who take a different view to mine; that the ESA will be the ultimate employer and that it will be charged with legal responsibility.

2106. Let us try to be more practical about the matter: is it possible that there will disagreement about what is lawful? Is it possible that the ESA will have a dispute with a Catholic school about upholding its ethos and about whether it is lawful that a teacher must subscribe to that ethos? Will there be an adoption-agency issue writ large in the school system, in which the Government simply direct that schools must comply with the law and have no obligation to maintain rights of conscience?

2107. Undoubtedly, there will be issues in which there is conflict of rights between the right to religious expression, the right to education, and the requirement to enforce the law. That is how lawyers make their money. Essentially, that is what they must interpret. The fact is that there is a wealth of issues on which there will be conflict. The ESA might say that it can take certain actions because the law is clear; however, someone else might say that the Human Rights Act 1998 is clear and that, therefore, the ESA cannot take that action. That is where conflict will arise.

2108. Mr Lunn: That could be the case if the ESA had never been —

2109. Mr Lockhart: The problem is who will preserve the ethos of schools. That is the point. The ESA will be a large, monolithic, bureaucratic organisation that has no particular remit to understand or stand for the ethos of schools.

2110. Mr Lunn: Boards of governors will retain the ethos of their schools.

2111. Mr Lockhart: Board of governors will not have that power when it comes to an issue that is before a tribunal, or when making a decision. The ESA must implement subject to its interpretation of the law. That is the problem: it will be the ESA’s interpretation of the law. There is room for debate and disagreement. Boards of governors can say that they are sorry, that there is a grey area, and that they take a particular view because it is more consistent with their ethos.

2112. Mr Lunn: That is what the law is about.

2113. Mr Lockhart: Exactly: that is why we want it in the Bill. The ultimate decision should be that of boards of governors. If they are wrong, they will take the hit: however, they will stand for their ethos.

2114. The Acting Chairperson: We have covered that issue as far as possible. Basil and John have both indicated that they want to ask questions. Before we move on too far, I want ask my second question again. Although I got a response, I would like a clear yes or no answer. On the basis of clause 8(2), the Department of Education states that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

2115. If model employment schemes and the associated guidance, set that out clearly, and you get clarification of some of the other points, and if that were subject to full consultation with the submitting authorities — and possibly an independent appeals system — and/or subject to regulation and control by the Assembly of ESA guidance and model schemes, would those caveats remove some of your key concerns in that area?

2116. Mr Lockhart: It would remove some of them, but not all of them. It would also establish an excessively bureaucratic structure. It would introduce a level of bureaucracy into the decision-making process, and that would make the process very difficult for the ESA and schools. I understand the desires and concerns involved. In most instances, there will not be a problem. However, I am concerned about the unintended and unexpected consequences that will inevitably arise.

2117. Yes, there are various procedures in place that could ameliorate and mitigate that particular problem. However, a huge amount of bureaucracy would be involved, and, ultimately, it is still the ESA’s view that must prevail because it is, legally, the employer. Boards of governors could potentially challenge the ESA on the decisions it makes, or on its refusal to implement a decision that the board of governors wanted to make because it says that it is not in accordance with the law.

2118. The Acting Chairperson: Do you at least accept that there are mechanisms that would address some of those concerns?

2119. Mr Lockhart: Why are we introducing those levels of structures into what should really be a reasonably straightforward system, which works well at the moment? The proposal would introduce a Byzantine complexity into the system, and that is completely unnecessary.

2120. The Acting Chairperson: I just wanted to get some clarity on mechanisms that would address those concerns.

2121. Mr McCallion: I would like to comment on the matter from an educational viewpoint. All over western Europe, the argument has been that we need to improve education. A major way to do that is to delegate power to the boards of governors. However, what we are seeing here is drawing power away from boards of governors. The power is going in the wrong direction. Sometimes, it is not the change that matters, but the direction of change. This Bill is sending out a signal that the really important decisions should not be made by boards of governors, parents, pupils and schools; rather they should be made centrally and involve bureaucracy. That is the risk that is being run.

2122. Mr B McCrea: It is a pleasure to see such an eminent QC cross-examine the Committee. [Laughter.] You might help us, since we have the experience here. Prior to this meeting, I expressed concern about the sugar-coated words, assurances and interpretations being offered as regards the Bill.

2123. Mr Elliott: You are not suggesting that it is bluff, are you?

2124. Mr B McCrea: I could not possibly use those words. I am interested in how important it is that the necessary provisions are written into the primary legislation, and how much can we rely upon guidance, interpretation, notes and such like. If something is in the Bill, is that important; and if it is not in the Bill, is that important?

2125. Mr Lockhart: As a lawyer, my first instinct is to look to the primary legislation; the statute. I would be looking to see who has legal responsibility. I have mentioned the TRC as an example, but I am afraid that what I term goodwill assurances — perhaps, more pejoratively, blandishments — promises, even codes of practice and guidelines may all be very interesting in a judicial review, because they may be a relevant consideration when it comes to making a decision. However, what gives comfort to the people involved is being able to refer to the primary legislation. For example, I see clause 3, which means every member of staff, and I can see that it affects not just teachers, but cleaners and ancillary staff — basically, anyone who is employed by schools.

2126. I am from Methodist College, and there is also the Methodist College Preparatory School. As I understand it, there is a move now to do away entirely with any subvention to the preparatory schools, yet the ESA will be the employer. The message seems to be:

“Folks, you are going to have to raise all the money and be responsible for it, but we will be the employer of all your staff and we will make the ultimate decisions".

2127. Those are genuine concerns. If the matter is not written into primary legislation, it will be of less legal benefit. The fact that boards of governors can, ultimately, make decisions provides protection.

2128. Mr B McCrea: I want to tease that matter out, because there has been discussion about clause 3(1) and 3(2)(b), which refers to persons employed by the ESA. If the ESA holds the contract of employment, can a school’s board of governors make appointments and dismissals?

2129. Mr Lockhart: I am sure that their views will be considered in almost every case. However, at the moment, an inversion is taking place. I do not think that boards of governors will attend tribunals to deal with cases, because a barrister from the ESA, which is the employer, will deal with the matter. That is important, because the school’s reputation is on the line. A tribunal is a public forum, and the ESA, as the employer, will represent the school at it. The school will be under no legal obligation to attend, except in an assisting capacity.

2130. Basil asked about staff appointments. As the employer, the ESA might give effect to the decisions that schools make. As I understand it, when a school makes an appointment a representative from the Department of Education attends. That system works well; why invert it? Although the ESA will give effect to lawful employment decisions, the school, in effect, shoulders the legal responsibility. The proposals do not comfort schools sufficiently. Why do we need to change the process?

2131. Ten or 15 years ago, many schools — mostly in the controlled sector — had problems managing employment issues; they needed the positive support that the ESA will provide. However, many schools across the spectrum, such as voluntary Catholic schools and voluntary grammar schools, have managed such matters well for many years. Those schools regard that as the key to protecting and maintaining their ethos.

2132. Mr B McCrea: I have concerns about many issues in the Bill. Is the employment of staff a central tenet of the argument or a peripheral issue? Will it be fine 95% of the time?

2133. Mr McCallion: It is absolutely central. It is an essential part of the proposal and is typical of education in the rest of these islands. In Britain, when a school is under pressure and decides to reform and to become a city academy, what do the Government do? They take the school out of the control of the local education authority and appoint a board of governors that is responsible for the school. Such a process transforms schools.

2134. We could debate the merits of the city academy model; however, it significantly transforms schools in Britain. The key is to give power to boards of governors — it is up to them whether they want to cede it. However, that arrangement ensures that boards of governors, principals and teachers know that they work for a school. The alternative is the Soviet Union model: school 197. What is the difference between school 197 and school 198? It is not the management, because that is controlled centrally. We are moving towards a centralised model.

2135. We are unique; we are the only people in western Europe to go that way. We are waving people goodbye on the train as they all go the other way. It is quite odd.

2136. Mr B McCrea: I wonder, Finbar, whether I could have that quote. School 197? Is that on the Limestone Road?

2137. Mr O’Dowd: Thank you for your presentation. I too am aware of Brett’s legal capabilities, so I will not cross him. [Laughter.]

2138. Mr Lockhart: I have respect for you, too, John.

2139. Mr O’Dowd: He was on our side last time, I am glad to say. What is your definition of accountable autonomy?

2140. Mr Lockhart: Is it an oxymoron? It is an interesting phrase that conjures up all sorts of ideas. Accountable autonomy is provided for in existing legislation. Boards of governors cannot act outside the law; that tension already exists in the system. The Bill will simply invert that and take away the existing powers of boards of governors. They will still have some powers, but, essentially, the Bill changes things round. The emphasis will be on the ESA rather than on boards of governors.

2141. At present, the boards hold things in tension, and both sides must consult with each other. However, the situation will be inverted so that the ESA has the whip hand — the primary legal responsibility. I am concerned about all the promises that have been made, John. On 95% of occasions, things will be fine; there will not be a problem, because people will learn how to get along. Problems will arise when conflicts come along.

2142. Mr O’Dowd: I am concerned that you mean independence.

2143. Mr Lockhart: No; that is not the case.

2144. Mr O’Dowd: I am concerned that a group of schools seeks public funds but does not want public accountability. In the past financial year, voluntary grammar schools received £209,430,734 in public funds for revenue; for capital, they received £30,744,507. That is all public money. To whom should those schools be accountable? The ESA is the body to which all schools that receive public funds should be accountable, but there should be a working relationship with the schools. I agree with you: the boards of governors are responsible for raising standards in schools. However, like any other recipient of public money, they must have mechanisms that can plot their accountability through the ESA and the Department — and this Committee. We will have a role.

2145. Mr Lockhart: There are two points: first, the record of virtually all voluntary schools in managing budgets and ensuring value for money is extremely good; secondly, as I said, accountable autonomy already exists. The voluntary schools are already constrained by regulations and requirements on how they use that money. The proposed change will put the emphasis on the centralised body as opposed to the boards of governors. If that comes about, it will cause problems.

2146. I do not subscribe to the view that, as recipients of large amounts of public money, boards of governors of voluntary schools should not be accountable for the money that they receive. They are already accountable. To centralise accountability is fine; but the powers of boards of governors should not be taken away. I tell you now that as the decades pass, the nature of those schools will be changed as a result. That concerns me, because those schools have been successful — leaving aside the issue of the transfer test for the moment.

2147. Mr McCallion: I will give members an example. Let us suppose that an Irish-medium school that believes in immersion in Irish appoints a member of staff under ESA regulations. What would happen if that teacher said that they did not believe in the immersion teaching of Irish and that children had the right to be taught in English? As the employer, the ESA could not argue that case in court, because the teacher’s lawyers would say that all other teachers in Northern Ireland must teach through English. That would create a tension. I do not know how such a case would be resolved, since the teacher who took the job would have known what was required. Our concerns could easily be portrayed as the grammar schools looking after themselves; however, it could affect all schools.

2148. I have sat on boards of governors of controlled schools, and we have fumed and shouted and given off about the board officers arriving and telling us what to do. Our argument was that we had a school of 1,000 pupils so we knew what we were going to do. This mammy-knows-best, or granny-knows-best or we will put you under our thumb and you will do what we tell you approach is not on. It is very difficult to encourage school governors to raise the standards in their schools with such an attitude being taken. Set them free.

2149. Mr O’Dowd: Fortunately, not even Mr Lockhart could defend that case. [Laughter.]

2150. Mr McCallion: Do not be so sure. [Laughter.]

2151. Mr O’Dowd: Are there any legal barriers to the representation of schools at tribunals?

2152. Mr Lockhart: Why would schools be represented?

2153. Mr O’Dowd: Therefore there is no legal barrier to schools’ representation?

2154. Mr Lockhart: There is nothing in the legislation that says that they cannot be represented. What rights of locus standi have schools? What rights do they have to appear? Who is the employer? It is the ESA: what would a school be doing there?

2155. Mr O’Dowd: Nevertheless, there is no legal barrier to their appearing.

2156. Mr Lockhart: A school could attend the tribunal as a friend.

2157. Mr O’Dowd: Come on now, Brett.

2158. Mr B McCrea: That would create work and money for barristers. Do not complain.

2159. Mr McCallion: Let me draw that out. I have sat in tribunals at which the CCMS held a different view from the board of governors of a Catholic maintained school. Such tension is pretty fierce, and it does not disappear when the tribunal is over; the school remembers what happened. Boards of governors are made up of willing volunteers; we have thousands of them in Northern Ireland. Could we not trust them and give them a bit of space?

2160. Miss McIlveen: Thank you for your presentation. I am concerned but not surprised that there is little discussion between you and the Department on those issues. I hope that that applies only to those issues and that other topics are fully discussed.

2161. Dr Dermott: We have had discussions with the Department. As Mr McCallion explained earlier, we felt that if we took up the most recent invitation, we would merely be repeating discussions that we had already had.

2162. Is that what concerns you?

2163. Miss McIlveen: Yes. I am concerned that things had got to the stage where —

2164. Dr Dermott: We had already ploughed and harrowed that ground.

2165. Miss McIlveen: We are now at a stage where you submit a paper and we receive a paper from the Department asking us to get clarification on issues that you have raised. Most of what interests me has already been dealt with, so I am not going to revisit it.

2166. I wish to address the issues of ethos and employment in the Department’s submission. It seems that the Department is unclear about which provisions of anti-discrimination or fair employment legislation you suggest ought not to apply in schools.

2167. Mr Lockhart: All such legislation will apply to schools. In the Republic, schools are protected by section 37(1) of the Employment Equality Act 1998:

“A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services … which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part … — if

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee … where it is reasonable to do so in order to maintain the religious ethos of the institution …"

2168. That is written into employment law in the Republic to allow schools to protect their ethos.

2169. The UK legislation is much more fluid, and it is extremely difficult to balance the various rights. Two years ago, for instance, a major dispute arose between the Catholic Church and the Government over the issue of adoption agencies, as the Church and other agencies wanted an exemption. The Church said that it would refer gay couples to another agency but that in conscience it could not entrust children to them. The Government refused to allow that, saying that it was not acceptable. There was an issue about whether, on a fact-specific basis, Church adoption agencies could write appropriate stipulations into their constitutions. It is all in a state of flux. The result has been that quite a few Catholic adoption agencies that dealt with the most disadvantaged children in England have had to close.

2170. Northern Ireland has civil partnership legislation. A Catholic school — and perhaps other schools — might say that civil partnership causes a problem and that its aims, values and ethos make it impossible for it to have a teacher who is in such a partnership.

2171. I am simply giving civil partnerships as an example. The ESA might regret having to tell a school that it was acting outside the law, but it would have to do so. A school may be forced to act against its ethos, but tough; that is the law. The board of governors might think that, under the provisions of freedom for religious expression in the Human Rights Act 1998, there is room for debate and that the matter is fact-specific enough to allow the board to make a case. However, the ESA would say that, ultimately, it takes the decisions and it does not think that the school is acting within the law.

2172. That may not be the best example; nevertheless, there are issues of religious conscience. For example, if a sex education code of practice were introduced for the whole of the UK that certain Churches said they did not want, the Government would say that it must be taught in all schools because it is in legislation. That is the kind of conscience issue that may come up.

2173. Who will be the defender of a school’s ethos in that case? The ESA will simply say that its interpretation of the law is different. That is the problem. I am using that simply as an example.

2174. Mr McCallion: There was a rumpus when a British Airways staff member wore a crucifix in public. Did it do the individual any good? Did it do the airline any good? Did it do the lawyers any good — yes, it did; they made a great deal of money.

2175. Mr B McCrea: They always do.

2176. Mr McCallion: However, it did not do anybody else good. It did not do community relationships in that organisation any good either, as it created tension between Sikhs and born-again Christians who could see no reason why they should not be allowed to wear the cross. At present, such tensions as exist in schools are local problems, and the people who should resolve them are the boards of governors.

2177. The Acting Chairperson: I think that we have covered the issues thoroughly. Thank you for your presentation.

2178. Dr Dermott: Thank you for listening to us and for your questions. I also thank my colleagues for their constructive answers.

2179. We support an administrative rationalisation, but we oppose the creation of an all-powerful controller. We seek amendments to the Bill on the employment of staff, the protection of ethos, and school governance management. We would also like responsibility for procurement to rest with boards of governors, and an aspiration towards 90% of the education budget going to schools not into bureaucracy.

2180. The Acting Chairperson: I welcome Stephen McConnell, the chairman of the Northern Ireland Voluntary Grammar Schools Bursars’ Association (NIVGSBA); John Robinson, the vice-chairman; and Shane McBrien who is a committee member and bursar of St Malachy’s College. There will be 10 minutes for your presentation, gentlemen, and then we will ask questions.

2181. Mr Stephen McConnell (Northern Ireland Voluntary Grammar Schools Bursars’ Association): On behalf of our association, I thank the Committee for affording us this opportunity to speak about the Education Bill.

2182. The association represents bursars in 51 voluntary grammar schools throughout Northern Ireland. In those schools, the bursar is normally responsible to the governing body for the conduct of their school’s financial affairs, business management and for the material state of the premises and grounds. Bursars are professionals who usually have qualifications in management, accountancy and/or law. A bursar has many responsibilities, but, perhaps above all, the bursar’s role in voluntary schools is an enabling one that allows the school to carry out its function of educating children.

2183. From the outset, I must say that the association is in favour of achieving greater efficiencies in the education sector and of improving education outcomes. Today’s presentation is more than narrow self-interest because our association has been assured that the role of bursar will continue in some shape or form within the ESA framework. Nevertheless, there are aspects of the proposed Education Bill that we believe will lead to greater inefficiencies and therefore be counterproductive.

2184. Of the 51 voluntary grammar schools, 29 are owned and governed by the trustees of the Catholic Church; the remaining 22 are owned by their own trustees and run by boards of governors. Most, if not all, of those schools are long established and have an enviable record of education outcomes over many years.

2185. The chief characteristics of the voluntary schools are: trustees own the land and buildings; the trustees’ responsibilities are usually set down in a foundation deed of trust, which sets out the aims of the school and the obligations that fall on the trustee governors; schools’ recurrent funding comes directly from, and therefore they are directly accountable to, the Department of Education — there is no intermediate body; their governing bodies employ all members of staff, and they are responsible for recruiting, deploying, managing and paying all those who work for the school; governing bodies are responsible for schools’ financial management; and, in addition to the duties laid down in their foundation documents, schools are charged with carrying out exactly the same statutory duties and responsibilities as every other grant-aided school.

2186. The present system provides clear lines of responsibility and accountability for the delivery of education to a high standard and to avoid unnecessary bureaucracy between funder and provider. Over the many years of their existence, the schools have demonstrated that they can use public funds effectively and efficiently for the benefit of their pupils.

2187. The original proposals in the review of public administration suggested that the relationship between schools and the ESA should be characterised by maximised supported autonomy. Furthermore, it said that the new arrangements must have sufficient flexibility to accommodate schools that wish to avail themselves of differing degrees of autonomy. The RPA highlighted the importance of maximising schools’ autonomy, whereas, in contrast, the proposed Education Bill will reduce the autonomy of voluntary schools by transferring significant control to a centralised body.

2188. By establishing the ESA, the Education Bill will remove the employing-authority role from boards of governors; undermine the voluntary principle of school governance, due to the command-and-control structure proposed by the ESA; introduce a one-size-fits-all education system; and contradict developments in the UK, where the Government’s stated desire is that there should be diversity of school-management structures, and where the focus is on maximising autonomy at local level in schools, as evidenced in the growth of city technology schools, trust schools and city academies.

2189. One of the key factors enabling voluntary schools to develop and maintain a distinctive ethos is the right of boards of governors, as the employing authority, to employ, promote, discipline and carry out employment-law functions for their staff within a policy framework set by the boards.

2190. As members heard earlier, one of the key roles proposed for the ESA is underscored in clause 3, which states that the ESA will employ all staff in grant-aided schools. Contracts of employment for all staff in voluntary schools are at present with the board of governors of each school. That means that board members are responsible for the key decisions of appointing and dismissing staff, who are selected in accordance with the ethos of the school, which may be academic or linked to a particular religious denomination.

2191. Staff have an affinity with and loyalty to their schools, the values, ethos and traditions of which they seek to uphold. However, boards of governors will no longer be considered the employer if contractual responsibility for all staff lies with the ESA and not with boards of governors. Under the legislation, the ESA as employer could redeploy staff between institutions, and that may result in staff having no affinity with or loyalty to a particular school. Staff may not, therefore, have the same motivation to drive up standards of attainment or to enforce discipline as they do at present.

2192. Clause 4 contains provisions for the preparation of employment schemes for all grant-aided schools; those schemes must be approved by the ESA under clause 6. If a scheme is not considered to be in line with the guidance issued by the ESA, that body has, under clause 6(2)(a) the reserved power to make an employment scheme for the school, which:

“shall be treated for all purposes as if it had been prepared by the submitting authority of the school".

2193. We believe that that is unduly prescriptive and dictatorial and further dilutes the autonomy of boards of governors.

2194. All staff will have a standard contract of employment with the ESA, and because they will have no affinity with a body employing more than 50,000 staff, they will carry out only those duties outlined in their standard terms and conditions of employment. For example, it may be the case that staff will no longer voluntarily assist with sporting activities or organised school trips. It is therefore imperative that voluntary schools’ boards of governors have the right to retain staff contracts of employment and remain the employing authority. It is accepted, however, that some schools may wish to have the ESA as employer while others may wish it to provide a supporting role in assisting with the drawing up of contractual terms and providing legal advice as and when required.

2195. It is essential that the Bill be amended to give boards of governors the crucial right of employing and managing staff, with the ESA being given a supportive function in this context if required. We also believe that there has been a serious underestimation of the challenges that lie ahead should the ESA take control of the voluntary sector.

2196. Although we understand that the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) are not strictly applicable in this instance, in practice, the ESA, as the employing authority, would take over the employees from the various current employers under their existing terms and conditions of employment. The TUPE regulations preserve employees’ terms and conditions when a business or undertaking is transferred to a new employer. The new employer takes over the contracts of employment of all employees who were employed at the undertaking immediately before the transfer. The new employer takes over all rights and obligations arising from those contracts of employment and any collective agreements made on behalf of the employees that were enforced immediately before the transfer.

2197. All non-teaching and support staff in the voluntary sector have widely differing roles and responsibilities. Transferring all those staff to one employer could leave the ESA open to a raft of legal challenges, as staff working under one employer will compare the differing terms and conditions of employment throughout the sector. That will apply equally to teaching staff who, when under one employer, will expect to be awarded the same responsibility points as staff of other schools carrying out similar duties. As each voluntary school is autonomous, there is little read-across of salary and conditions of service, which will be difficult to administer for the new umbrella organisation. It is very likely that that will raise issues of equality and job evaluation when the new agency is only bedding in.

2198. Key governance provisions in the Bill can be found in clauses 30 to 33. Schools will further lose their autonomy by virtue of the standardised schemes of management. Such schemes must be approved by the ESA. If a scheme is not considered to be in accordance with the guidance issued by the ESA under clause 32, the ESA can make a scheme of management that will be treated as if prepared by the submitting authority. Such a scheme will regulate the membership and procedures of boards of governors, as well as the management of schools and relations between boards of governors, principals and any other persons specified in the scheme. It is the association’s opinion that that is likely to involve a prescriptive and bureaucratic model of school governance. The ESA will have the power to appoint governors as considered necessary and the power to choose community governors who may not be approved by individual boards of governors.

2199. The key benefit of the existing model is the ability of schools to attract governors from a wide range of professional backgrounds to volunteer to serve on boards. Many such governors have a long-standing relationship with a particular school, together with specific expertise that adds greatly to the management of a school. In future, under the conditions outlined in the legislation, it is likely that the schools will have great difficulty in attracting governors with relevant experience. Governors may not give of their time and expertise freely when the main managing authority will be the ESA and when they will be required to operate within a framework of stringent rules that may not be to the best interest of individual schools.

2200. From the outset, I wish to say that the associations and relationships that bursars of voluntary grammar schools have had with the Department of Education and its voluntary grammar finance branch, with regard to financial management and procurement, have been excellent throughout the years. All our schools are accountable to the Department of Education, each being subject to the Department’s financial auditing arrangements, and are rigorously audited annually, with the production of both internal and external audit reports prepared by independent professionals. The internal audit is carried out in order to ensure that robust systems of control and governance are in place. External audits provide assurances as to the stewardship of the funds provided by the Department and the financial stability and viability of schools.

2201. In addition to the funds received from the Department, many voluntary schools receive additional funding from parents and benefactors. We believe that the standardisation that will inevitably result from the Education Bill will lessen the incentive to make such contributions in future. That will ultimately put an additional strain on the public purse.

2202. A number of voluntary schools also carry out additional educational activities outside those that are directly grant-aided by the Department. Such activities generate non-public funds, which should not come under the proposed legislative framework. Although the Bill is largely silent on procurement, it is understood that when the second Bill is introduced there will be further legislation that will considerably reduce the autonomy of voluntary schools through centralising the procurement function, which could undoubtedly lead to increased costs and inefficiencies.

2203. To allay genuine concerns about preserving the ethos of schools and maximising the autonomy of school governance, the proposed legislation must be amended. There should be no alteration of the role of boards of governors as the sole employing authorities for voluntary schools. Individual boards of governors must retain the autonomy that will allow them to make decisions that are in the best interests of their schools: that must be reflected in the legislation.

2204. The association cannot find evidence to suggest that the proposal to enable the ESA to manage voluntary schools, as outlined in the Bill, will result in improvements to education administration and achieve better outcomes.

2205. The Acting Chairperson: Thank you. You mentioned additional funding in your presentation and in your written submission. How much additional funding is received?

2206. Mr McConnell: I cannot give you an exact figure for the whole of the sector. However, I can speak for my school, which receives an additional £100,000 a year for the secondary department. My school also has a preparatory department and a boarding department. The revenue generated by the boarding department is close to £750,000. We employ all the staff in the boarding department, and we manage the funds from the fees that come in from boarding pupils. We do not believe that the ESA, which would have no conduit to those funds, should be the employer of staff that we employ by virtue of those non-public funds.

2207. Mr John Robinson (Northern Ireland Voluntary Grammar Schools’ Bursars Association): May I add to that? My school is Methodist College. We receive revenue in excess of £500,000 a year from parents and voluntary contributions. That money is used entirely in the secondary department and is accounted for in that department. Without it, we could not provide the services that we provide for the children who attend the school. It is very straightforward.

(The Chairperson [Mr Storey] in the Chair)

2208. The Chairperson (Mr Storey): I thank Nelson McCausland for chairing the meeting in my absence.

2209. Miss McIlveen: Thank you for your presentation. You made a comment about teaching staff. If I were a teacher and knew that a teacher in another school was being paid differently for doing the same job, I would be asking questions. You also talked about the organisation of trips, and so on, which might be curtailed under the ESA. As a teacher in a previous life, I know that many teachers work beyond what is in their contract. They do what they feel is necessary, and to say that they would be bound by contracts is a bit cynical.

2210. You also said that because a voluntary school is autonomous, there is little read-across regarding salaries and conditions. Have you done any work in order to address that or to get a feel for what the differences may be?

2211. Mr J Robinson: Voluntary schools are slightly different in that, as Stephen said, many have preparatory departments and boarding departments. There is more of a difference in terms and conditions than there is in pay. In our school, for example, we run janitors on a continuous rota system. I understand that that is different from almost any other school in the Province. That is one example, but terms and conditions are the key issue.

2212. Our message is that the nature of life, and people, is that people react better when their employer is local and when they know who their employer is. I have no great issue with ensuring that staff are properly remunerated in line with that across the sector. In fact, teachers in voluntary schools are paid on exactly the same basis as those in the controlled sector, and I do not know of any exceptions to that. There may be some enhancements for the additional work that they carry out and which is line with the salary policy, but, generally, that is not a great issue.

2213. We are saying that the change, and the move towards that change, is difficult. On the basis of many years experience as a manager outside the education sector, I believe that the key message is that people have an affinity for a local employer. The key factors are: who holds the contract, and who deals with discipline and grievances in the normal employment relationship. The board of governors have control of those issues in voluntary grammar schools.

2214. Miss McIlveen: It also involves an interpretation of how local is local. We are not talking about an organisation that is based across the water; it will be reasonably local without being located in a school.

2215. Mr J Robinson: The key is that it should be in the school and in the board of governors of the school.

2216. Miss McIlveen: Is your primary concern around commitments?

2217. Mr J Robinson: Yes — and teaching staff. Teaching staff look to the board of governors of the school as their employer if the employment relationship is correct.

2218. Mr O’Dowd: Thank you for your presentation. I also noted the issues that Michelle raised. You referred to auxiliary and support staff at your school, and I see that they are also mentioned in your letter:

“The Regulations have the effect that employees employed by their respective Board of Governors would automatically become employees of the ESA on the same terms and conditions."

2219. To me, that is why the ESA should be in place. Recently, the Minister diverted more than £1 million to ensure that voluntary schools’ classroom assistants had the same terms and conditions as other classroom assistants. Should the Minister take that money back?

2220. Mr McConnell: I do not wish to get into an argument over classroom assistants.

2221. Mr O’Dowd: I do — but perhaps I am being unfair to you in that sense.

2222. The public purse was opened up and more than £1 million was taken out to ensure that staff in your schools received the same terms and conditions as other staff. Today, you are arguing that the ESA is a bad idea because all staff will be on the same terms and conditions. That is a crazy argument.

2223. Mr J Robinson: The argument is about the transition and the difficulties in setting up the ESA.

2224. Mr O’Dowd: A lengthy and exhaustive process of job evaluation has taken place. In the beginning, the job-evaluation process was not managed properly. When I was Chairperson of the Public Accounts Committee, we reported on the matter. However, the process is now in place and is ticking over. Therefore, ensuring that employees in your sector are on the same terms, grades and conditions as those in other sectors would not be a major problem.

2225. Mr McConnell: In any industry, a job-evaluation process will increase costs. Therefore, that would impact on the education budget. The first job-evaluation process started a number of years ago, and there has been significant erosion in the differentials in the rates of pay between, for example, ground staff and cleaning staff. In some schools, therefore, it is almost better to be employed as a cleaner in the afternoon than as a clerical officer. A job-evaluation exercise will be carried out for clerical staff. What will happen is that suddenly everyone’s rate of pay will increase. There is no bottomless pit of money from HM Treasury. Therefore, we are being realistic in saying that the exercise will cost the Government significantly more money.

2226. Mr O’Dowd: I do not think that that is the reason that you are arguing against it. You have the right to give that response, but I do not accept it.

2227. Mr J Robinson: To add to that response, the key point is that there are differences in the job descriptions of some staff. I will give an example that applies to classroom assistants in our school. We compared their job descriptions with the job-evaluated description and found that they are virtually the same; there is no substantial difference. Therefore, our classroom assistants will be given the money when it comes through. We consulted them and told them that we hope that that will resolve the problem with terms and conditions. Let me stress that I do not think that any voluntary grammar school will ever argue about not paying their staff a proper rate for the job. However, there are differences between the schools as regards job descriptions.

2228. Mr O’Dowd: Job evaluation has managed to go across five boards. It has been a very difficult process and has gone through many hoops, hurdles and mistakes. However, the process is in place now, so I assume that it can be applied to 30 voluntary grammar schools.

2229. Mr J Robinson: That is exactly our point.

2230. Mr O’Dowd: I am surprised that you are not able to tell us how much voluntary contributions there are across the board. I can tell you how much public contributions there were last year — in the region of £250 million went into the voluntary schools. I note that your presentation states that there are clear lines of responsibility and accountability, and I think that you were referring to education and funding. What are the clear lines of financial accountability for public funds? How are you audited? Have you ever been audited by the Audit Office?

2231. Mr McConnell: As I said in my presentation, we are audited annually, both internally and externally. We are audited by professional chartered accountants. We submit our annual audited accounts to the Department by 1 June each year, in line with the Treasury’s Faster Closing initiative. We also have internal audits that examine the internal control systems in schools, and the Department of Education receives those internal audit reports. We constantly submit returns to the Department monitoring our financial affairs. The Department receives an initial estimate from us each year on how we will spend the money. That is reviewed in November each year, and a further review of that is sent to the Department. The Department monitors our surpluses and deficits. If there is a surplus or deficit of more than 5%, the Department asks the board of governors in each school what they are doing about it. As far as accountability for the money that we get is concerned, we are very accountable to the Department and to the public purse.

2232. Mr O’Dowd: The CCMS, the education boards, Comhairle na Gaelscolaíochta, and so forth, have to present themselves quarterly to the Minister and explain how they are accounting for the money spent. Do the grammar schools do that?

2233. Mr McConnell: We do not have to meet quarterly, but, as I explained —

2234. Mr O’Dowd: When was the last time that you went before the Minister of Education to discuss your accounts?

2235. Mr McConnell: We have never done so.

2236. Mr J Robinson: It would not be a problem for us, but it would not be appropriate for us to do so, because we are not the proper body to meet as regards accounting for the money that goes into the voluntary grammar sector. It would have to be the GBA, or some other body, and I am unaware of the arrangements in place between that body, or individual schools, and the Department.

2237. Mr Elliott: Items 27 and 28 in your presentation concern additional education activities outside those that are directly grant-aided by the Department. Will you elaborate on that? I understood that those took place in all schools, including schools in the controlled sector. How does that differ in the voluntary grammar sector? What are your concerns in that respect?

2238. Mr McConnell: I was making reference to activities in boarding schools and preparatory schools.

2239. Mr Elliott: Would it have any effect on day schools?

2240. Mr McConnell: No. The only additional funds that would be applicable to day schools are the voluntary contributions from parents, which have the effect of reducing schools’ deficits.

2241. Mr Elliott: Are you saying that there would be an issue with staff in the respect? Or, would it be an issue because of the ESA?

2242. Mr J Robinson: The issue has not been sorted out. The ESA chief executive designate has met us on a couple of occasions, and for that I thank him. We have been told that staff who fall within the educational sector will be employed by the ESA. There is a difficulty with that in that some staff will have a couple of masters. For instance, a boarding department is not that educational, and funding comes from parents towards boarding. That is one issue that needs to be resolved.

2243. Mr Elliott: I have noticed a common theme among various associations that have provided evidence to us, and paragraphs 23 and 24 of your submission echo that point when you state that policy is not being reflected in the Bill. Perhaps, we should ask this of the departmental officials, but I would like you to expand on that. I know that you have limited your concerns to one point, but is that the only point that you have or is it broader?

2244. Mr J Robinson: The original documentation, the policy paper and our initial meeting with people involved with the setting up of the ESA — which was some time ago — assured us that maximum autonomy would be given to the schools that could deal with it. That assured us to some extent, but it took us more towards the academy model, which is happening in England, and our own models. The Bill is a disappointment, because it seems to be prescriptive in all the areas — and certainly in employment.

2245. We believe that there may have been some movement on the employment of staff. The Bill states clearly that staff will be employed by the ESA. We understand the need for efficiencies, and so on, but that is a fundamental change — and, as a manager, I do not believe that it is a change for the better. I am not arguing for worse terms for anyone; I am arguing, from the management perspective, that this is not the best way forward.

2246. Mr Lunn: Thank you for your presentation. I want to pick up on one point, which you have highlighted in your submission. You are concerned about clause 18(1) of the Bill, which states that:

“ESA may do anything that appears to it to be conducive or incidental to the discharge of its functions."

2247. Why are you so concerned about that? It comes at the end of a long list of functions and duties that are being given to the ESA. It seems like a tidying-up line to cover anything that may have been forgotten. You say that it provides all-embracing powers; it does not. The words are further qualified later in clause 18. The same words are used in clause 19, which deals with the powers of the ESA to undertake commercial activities, and it is qualified by certain restrictions. If that line were not part of the clause, would it make a difference to what the ESA can or cannot do? I do not know why you are concerned about it.

2248. Mr J Robinson: Again, I refer to the submission by Mr Lockhart, and his comment about the law of unforeseen eventualities. We are concerned about the clause because it allows the ESA to make adjustments and regulations should something crop up that may not have been foreseen during the passage of the Bill. Therefore, I — not as a lawyer, but as an accountant — will find it helpful to have some qualification of the clause. You are quite right: it is a catch-all clause, and I imagine that that is why it has been written into the Bill. If I were drafting the Bill, I would do exactly the same — I would include a clause that allows some flexibility in future rather than have to go through the churn of the legislative process all over again.

2249. Mr Lunn: My guess is that there is probably a similar clause in existing legislation governing the activities of the present governing bodies — we can ask the departmental officials about that later. Have you checked that legislation, or have you just picked this clause out and said: that is appalling; we cannot have it in the Bill.

2250. Mr J Robinson: We are dealing with, and commenting on, the legislation that is in front of us. As for other legislation, there would usually be a little more qualification.

2251. Mr Lunn: Well, we are not going to agree. I just wondered why the matter was so important to you.

2252. The Chairperson: Obviously, that is a concern for the Committee. Previously, we told the Department that if it is not in the legislation, we are going to have difficulty with it.

2253. I will conclude this session by asking a question that was asked in an earlier session, and it relates to clause 8, which deals with employment schemes. If there were a system of independent appeal, or if the Assembly had the power to regulate and control the ESA guidance and model schemes, would that address some of your concerns about employment schemes and other schemes of management?

2254. Mr J Robinson: Again, I agree with what Mr Lockhart said. I deal with employment law and employment issues in our school. What is being proposed would create an unwieldy bureaucratic means of dealing with the issue.

2255. As regards schemes of management and accountability, many of our schools have schemes of management with the Department. I can speak only for myself, but I have no issue with that. Lawyers are often quoted as saying that employment law is the second most difficult area of law. We deal with that area of law, and I do not think that it would be helpful to introduce other layers of bureaucracy into the arrangement between employer and employee given that employment issues can be difficult to deal with in general.

2256. The Chairperson: Stephen, Shane and John, thank you very much for your presentation. You are welcome to stay for the remainder of the meeting. I now ask the departmental officials to join us — undoubtedly, they have been imbibing all that has been said in the past hour or so.

2257. The Department sent the Committee a response to the GBA paper, but I suspect that, after today’s session, other issues will also need to be dealt with. Mr McGrath, I am sure that the Committee will agree that the paper submitted by the GBA today should be given to you, and that we should continue to consider the issues raised in that paper, in this presentation and in the Department’s response. The paper was sent yesterday, so members should have received it. John, I am in your hands.

2258. Mr John McGrath (Department of Education): I am glad to be with the Committee again. Chris will lead off on the Department’s response to the initial paper.

2259. Mr Chris Stewart (Department of Education): We welcome the opportunity to consider the presentations and hear the evidence from the Governing Bodies Association (GBA) and the Northern Ireland Voluntary Grammar Schools’ Bursars Association. It is clear that we agree on a great deal and that we disagree on some fundamental points, which I want to concentrate on in my presentation.

2260. I am conscious that the Committee is pressed for time, so my presentation will be shorter than it might otherwise have been. It is important to set the context and to remind ourselves of our aims. There, we begin to see the commonality of view between ourselves and the GBA. The RPA arrangements are based on autonomy for schools and on the aim that schools are best placed to run their own affairs but with accountability for their actions and for the educational outcomes that they produce. We intend to achieve that effect through the Bill.

2261. I want to respond specifically to the GBA’s three major areas of concern: its objection to the proposed employment arrangements; its objection to the proposed governance arrangements for schools, and comparisons with legislation in England and Wales.

2262. The GBA has argued consistently that the employment arrangements will result in a loss of autonomy for some schools. We recognise and acknowledge the genuine sense of loss in those schools. However, the Department contends that there is no real loss of autonomy, because boards of governors will remain responsible for the exercise of employment functions and will take employment decisions that the ESA will be under a legal duty to put into effect. Our policy aim is to ensure that that degree of autonomy is available to all schools on the basis of equality, rather than to some schools on the basis of historical differences in ownership.

2263. The GBA contends that the Bill will not have such an effect, that decision-making powers will rest with the ESA and that boards of governors will be restricted to making suggestions or requests. That is not the case. The Education Bill makes it clear that boards of governors will make decisions — which is the phraseology used in the Bill — not recommendations on employment matters. We have referred to clause 8(2) several times, and it is worth remembering its content and meaning. That clause’s effect is that the ESA may not lawfully refuse to put into effect boards of governors’ proper decisions on employment matters.

2264. Mr Lockhart spoke earlier and made a number of points to which I want to respond. His central point was that the separate employment arrangements that pertain at present somehow offer those schools a degree of freedom that they would lose under the proposed arrangements to interpret the law. As I have confessed to the Committee many times, I am not a lawyer, and I rely on legal advice. The legal advice is that I have received is different and states that schools do not enjoy that degree of freedom.

2265. If a board of governors, in its role as employer, proposed to act outside the law, the Department would prevent that and would exercise its powers of direction. If, for some reason, the Department failed to act, in a case of unlawful dismissal, a tribunal would have the power to impose a substantial fine or to order the reinstatement of the member of staff. Those arrangements will pertain irrespective of whether we continue to have separate employers or whether the ESA becomes the single employer. That advice has been provided by the Departmental Solicitor, who is also the chairman of employment tribunals and has considerable experience in such matters.

2266. Furthermore, the GBA suggested that it is not possible to put the proposed arrangements into effect in law. Mr Lockhart said that only the ESA would be present at employment tribunals and courts. Again, our legal advice is different and states that a court or tribunal would automatically join to the proceedings any body or person who played a part in the matter that was the subject of complaint. Therefore, the board of governors and the ESA would be represented in proceedings by order of the tribunal or the court.

2267. The GBA argued that it is not possible to achieve the Department’s desired effect in law.

2268. However, not only is it possible — it has already been done. We have discussed schedule 2 to the Education (Northern Ireland) Order 1998 in the Committee on several occasions. Several key points in respect of that schedule — which refers to controlled schools — are worth emphasising.

2269. It is solely for boards of governors to determine staff complement; there is no role for the employer in that regard. It is for boards of governors to draw up and implement disciplinary rules and procedures, and the employer’s role is limited to one of consultee. Boards of governors and principals — not employers — have the power to suspend staff and to end suspensions. Crucially, it is for boards of governors only to take decisions on the dismissal of staff. The only exception to that is if a member of staff becomes ineligible for employment; for example, if their registration to teach is revoked.

2270. Those provisions demonstrate that boards of governors can, and will, be given an autonomous statutory role in employment matters, including dismissal. There are also clear and effective duties on the ESA, as the employer, to put the lawful decisions of boards of governors into effect. Schools may feel that they have a degree of freedom in how to interpret the law, but that is not the case.

2271. The GBA has stated its opposition to the provisions in clauses 30 to 33 very clearly. Those clauses require each school to draw up a scheme of management, taking account of guidance produced by the ESA, and to submit that scheme to the ESA for approval. We find it difficult to understand the GBA’s objection and, indeed, its description of the arrangements as a striking transfer of power. Grant-aided schools are publicly funded institutions that deliver a key public service. The Department contends that it is reasonable and necessary to require each school to have clear governance arrangements and to abide by them. In essence, we are saying that schools must have rules and stick to them. We do not regard that as an unreasonable requirement or a striking transfer of power.

2272. In its paper, the GBA suggested that only failing schools should be subject to those requirements. That seems to suggest that we should have a statutory duty to bolt the stable door long after the horse has disappeared over the horizon; we do not think that that is an appropriate way forward. The legislative requirements are not new; they have been in statute since 1989. Article 9(a) to 9(d) of the Education and Libraries (Northern Ireland) Order 1986 requires schemes of management to be prepared and submitted to the Department for approval and contain powers for the Department to modify and impose — or default — on those schemes. The provisions in the Education Bill are very similar to those arrangements, but the approval role rests with the ESA rather than with the Department.

2273. The GBA drew comparisons with the legislation in England and Wales and suggested that that legislation might be a better route for us to follow. There is a Chinese proverb: “be careful what you ask for — you might get it." It is worth bearing that proverb in mind when considering the relevant legislation, namely the School Standards and Framework Act 1998. That Act is more prescriptive and contains a broader range of intervention powers for local education authorities than anything that we have proposed for the education and skills authority.

2274. The equivalent of management schemes are known as instruments of government in English legislation, the key provisions of which are section 37 and schedule 12 of the 1998 Act. Schools are required to draw up instruments of government that they must submit to local education authorities for approval. That is very similar to the Northern Ireland provisions, but the key difference is that schools here will have more flexibility to shape their schemes. Schools in Northern Ireland can tailor their schemes of management and take account of the ESA guidance. By contrast, schools in England are legally required to draw up instruments of government in prescribed form and with no scope for variation.

2275. I now turn to the intervention powers of local education authorities and the ESA. We have striven to maintain that the emphasis is on schools self-improving. Schools are to be supported and challenged — but not controlled — by the ESA, and the ESA’s intervention powers are to be kept to a minimum. Action to raise standards and tackle underperformance will be schools-led. Following inspection, the legislation will require a school — not the ESA — to produce an action plan detailing what action that school proposes to take to address an inspection’s findings.

2276. The interventions regime under the English Act is rather different. In England, LEAs may, depending on a school’s performance, issue a formal direction that requires the school to take specified actions; appoint additional governors, overriding the school’s instrument of government; suspend the delegation of a school’s budget; take over the role of setting a school’s staffing complement; remove a governing body’s right to appoint or dismiss staff; and direct a governing body to dismiss staff.

2277. By contrast, the ESA will have no such powers; it cannot direct schools with regard to raising standards; it cannot withhold grants; it cannot interfere with a school’s staff complement or the appointment of staff; neither can it direct the dismissal of staff. The strongest powers in Northern Ireland legislation, which are rather less extensive than any in England and Wales, are reserved exclusively by the Department and will not be in the hands of the ESA.

2278. The GBA said that legislation in England and Wales is preferable to proposals in the Education Bill. However, a comparison demonstrates that the English legislation is more prescriptive; offers less flexibility to schools in determining their governance arrangements; and gives much greater powers of intervention to local education authorities than anything in current legislation or anything proposed in the Education Bill.

2279. The Chairperson: Thank you, Chris. I am more worried about Irish blarney than Chinese proverbs. The worry, which you have heard repeated by the Committee several times and to which Trevor referred earlier, is that there is a sense that the Bill creates a catch-all scenario; provisions are made and powers are given that cover every eventuality. Organisations that have attended the Committee today, such as the Northern Ireland Voluntary Grammar Schools Bursars’ Association and the GBA, are still not convinced that the legislation will not manifest their worst-case scenarios.

2280. For example, as regards clause 8, does the Department not feel that to allay concerns, there should be adequate provision in the legislation for an independent appeals mechanism subject to resolution, control or regulation by the Assembly? Would that be helpful?

2281. Mr C Stewart: I recognise that many of the concerns of the GBA, the bursars’ association and, indeed, other stakeholders’ focus on the fact that much of the detail, particularly on employment arrangements, does not appear in the Bill. However, it will appear in guidance and in the schemes of employment when they are drawn up. The aim is to reduce bureaucracy and the degree of prescription in legislation. However, I understand the concern that arises when that detail is not seen in writing; it is perfectly natural to have some concern about what the content might be.

2282. There are two possible approaches, one of which we have discussed previously in the Committee. The first is explicitly linking the role of the ESA in such matters with article 101 of the Education and Libraries (Northern Ireland) Order 1986 and the Department’s power to direct and provide a vehicle for an aggrieved party to complain. The Department would then investigate the matter. If necessary, it would issue a direction to correct any malfeasance on the ESA’s part.

2283. The second mechanism, to which some of your questions pointed earlier, is to provide a scrutiny, challenge or overseeing role for the Assembly, and there is a way to achieve that. We could propose that that detail be contained in guidance. The alternative is to put it in subordinate legislation or regulation, which, of course, could be made subject to Assembly control and would always be subject to scrutiny by the Committee.

2284. We have sought wherever possible to avoid doing that, because, as we have said before, the volume of education legislation is extremely large and we do our best not to add to it unnecessarily. However, if it is felt that we need to be more prescriptive and to provide more clarity in legislation rather than in guidance, there is a mechanism that allows us to do that.

2285. Mr O’Dowd: Do staff in voluntary grammar schools have more or fewer employment rights now than those working in the controlled or maintained sector?

2286. Mr C Stewart: I do not see how that could be.

2287. Mr O’Dowd: Are there any plans to introduce independent, free-standing employment legislation to back up proposals of the education and skills authority? Is there a raft of employment legislation to which the ESA or any other body must adhere? Every time that you draft a Bill, do you have to add the employment legislation to it? Is the ESA rewriting or adding to existing employment legislation?

2288. Mr C Stewart: The answer to those questions is no.

2289. Mr John McGrath (Department of Education): It is not in our power to do that. The law on employment will remain as it is now after the ESA has been set up; the ESA does not affect the legislation one way or the other.

2290. Mr O’Dowd: If a voluntary grammar school’s board of governors interviewed an applicant for a job for which he or she was best qualified, could the board of governors decide not to give the job to him or her because they did not like the look of that person? I am not saying that they would want to do that, but could they?

2291. Mr McGrath: They should not do that.

2292. Mr O’Dowd: I am not suggesting that they would want to but whether they could under existing legislation.

2293. Mr McGrath: The law of the land on fair employment applies to voluntary grammar schools no less or no more than it applies to controlled schools, maintained schools or any other employer.

2294. Mr O’Dowd: Concerns were expressed that the ethos of a school could be undermined by the ESA’s being the employing authority. However, boards of governors will conduct interviews and appoint staff, and that will not be undermined.

2295. Mr C Stewart: Ethos is always subject to the law; we touched on this issue several times with the Committee. The Committee has also discussed, and expressed its views on, the exemption on teacher recruitment in the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). That is why we posed that question in response to the Governing Bodies Association paper that sought clarification on additional exemptions in respect of fair employment and equality legislation for which it appeared to be arguing. Given the existing FETO exemption, it was not clear what additional legislative requirements the association sought to have disapplied to voluntary grammar schools.

2296. The Chairperson: Chris made a point earlier about the mechanisms that we could use to address those concerns, through either a direction subject to article 101 of the Education and Libraries (Northern Ireland) Order 1986 or additional regulations. Would it be possible to make proposals or prepare a paper on that?

2297. Mr C Stewart: As a technical challenge, it is certainly possible. We would have to seek a view from the Minister. I am not aware of any technical difficulty that would prevent such a course of action.

2298. The Chairperson: I want to bring this session to a close because we have a commitment to Portadown College, whose representatives, I am glad to say, have joined us. Will the maintained schools, controlled schools, voluntary grammar schools, integrated schools and various other types of schools in Northern Ireland have equality in the employment schemes? Once the ESA has been established, will we be able to say, without any shadow of doubt, that all schools will be administered and treated equally and that no sector will have any advantage — through any sleight-of-hand or historical accident or privileged position — over any other?

2299. Mr C Stewart: I sense that you are looking for a straight answer and that answer is yes.

2300. Mr Lunn: Will you comment briefly on the bursars’ concern about clause 18(1)? It states that:

“… ESA may do anything that appears to it to be conducive or incidental to the discharge of its functions."

2301. Mr C Stewart: On first reading, clause 18 appears to offer a degree of latitude to the ESA that might give rise to concern; however, it does not. The qualification that something must be conducive or incidental to the discharge of the ESA’s functions is important. There has to be a direct link between what the ESA wants to do in the discharge of its statutory functions and the education legislation. Therefore, the clause does not allow the ESA to set up private companies that can do something that is not connected to education.

2302. However, apart from that, it is a fairly standard provision that would routinely be inserted into legislation to establish any new non-departmental public body delivering a public service. There is an almost identically worded clause in the Libraries Bill, and, if my memory serves me correctly, in the health and social services RPA legislation. Therefore there is nothing unusual about it.

2303. Mr Lunn: Could the ESA step outside that rule to do something that could be construed as not being conducive to its normal activities?

2304. Mr C Stewart: Specific departmental approval will be required for some of the things that the ESA will be entitled to do. In addition, more generally, if the Department felt that it was doing something that was not sufficiently related to its statutory functions in legislation or to the priorities that the Department has determined for it, we would step in very quickly with a formal direction if necessary.

2305. Mr McCausland: The folk from the Governing Bodies Association suggested that the ESA would be very bureaucratic and, therefore, a substantial portion of the budget would be spent internally in the ESA rather than going to schools. How do you see that working out? Will moving from the boards to the ESA reduce or increase bureaucracy and, therefore, the amount of money kept at the centre?

2306. Mr McGrath: A key objective of the ESA is to rationalise many of the administrative functions across the five boards and organisations and to bear out savings. The Department will consider the targets that it will set for management costs and bureaucracy, and the Minister has a clear view that she wants to get as much money out of the education budget to the front line of schools. That is a general objective above and beyond issues around voluntary grammars and in schools in general.

2307. Mr McCausland: What will the target be?

2308. Mr McGrath: We have not decided on the target yet.

2309. Mr McCausland: As much as 90% could go to schools.

2310. Mr McGrath: The Committee has had various discussions on the issue, and it would be helpful to get clarity about what we are counting. The amount of money in the Minister’s budget that goes into schools now — whether it is earmarked or is part of the agreed school budget — will increase over time; however, the scope to do that is limited by the expectations with regard to efficiency savings in future budgets and by cost pressures. Nevertheless, it is a general objective. We want to reduce educational bureaucracy to the minimum necessary to deliver an effective service and to get as much money as possible into classrooms.

2311. Mr McCausland: When will you have that figure?

2312. Mr McGrath: It will not be a set figure, but rather a figure over time or for each year.

2313. Mr McCausland: What will the initial figure be?

2314. Mr McGrath: I have said to the Committee before that the Department will want to consider setting an envelope for senior management costs in the ESA. That will address concerns that the Chairperson expressed about its structure at the beginning and about whether it could expand willy-nilly. Therefore we will want to put an envelope on it. We would like to get more information and agreement on the precise percentage of money that goes into classrooms, because different figures have been quoted from LEAs across the water. The Minister may want to set an objective for the ESA over a three- or five-year period and change the percentage over time.

2315. Mr McCausland: That may not happen. However, the ESA will be established on 1 January 2010, which means that the target must be set before that date. At what point during this year will that happen?

2316. Mr McGrath: It will be a target as part of the general oversight of the ESA to be delivered as it comes into full being. The ESA will not reduce or increase the amount of money into classrooms in three months at the end of the next financial year. However, it could be a target for 2010-11 to 2011-12.

2317. Mr McCausland: On 1 January 2010, will there not be a reduction in the amount of administration?

2318. Mr McGrath: There will not be an automatic reduction on 1 January 2010.

2319. Mr McCausland: When the ESA comes into being and the boards cease to exist, they will no longer employ people; therefore the reduction will have happened at that point.

2320. Mr McGrath: The people who are employed by the boards on 31 December 2009 will be employed by the ESA on 1 January 2010. Therefore, the rationalisation process will take a bit of time.

2321. Mr McCausland: How long will it take?

2322. Mr McGrath: That will depend on each sector. Gavin Boyd has appeared before the Committee to talk about the work that was done in the various sectors. The departmental overseers will have to say how long the process will take. However, we should not underestimate the management challenge of welding together seven or more organisations.

2323. Mr McCausland: Before we are asked to sign off on a Bill we need a clear steer from you on its benefits in real terms, and a target figure would give us some indication. The argument is being made to us that slimming down administration will put more money into schools, which is great. However, you must have an estimate; you cannot be working totally in the dark. When can we get an estimate? I do not want to overstep the mark, but it is incumbent on the Department to produce an estimate of the increase in money that will go to schools.

2324. Mr McGrath: I must be careful about what I say: I do not want to feed out figures about savings, because they will then be expected when the ESA is established. We operate in a wider budgetary context; we have 3% efficiency savings to realise at present, and all the indications are that that figure will increase. Therefore any savings made might have to be used to deliver on efficiency savings targets. If we have to make 3·5% efficiency savings in future, the last place that we want to make them is in the classroom. We may set a figure for the percentage of the overall money that goes into the classroom, but that does not necessarily mean that many of the savings will flow if we have efficiency savings —

2325. Mr McCausland: Yes, but you would be taking out only 3%. I assume that you are trying to make a much bigger saving than 3% by rationalising the system.

2326. Mr McGrath: Yes, but the 3% figure is for the entire education budget. If you were to turn that into a savings figure on the smaller amount of an administration budget, it could be 10%, 15% or 20%.

2327. Mr McCausland: Therefore there may not be any money coming out of schools.

2328. Mr McGrath: There may or may not. As a percentage of the money that has been spent, the Minister has an objective to increase extra money, but she does not know what efficiency target will be set. Therefore, it would be either premature or brave to give a figure for the amount of savings that will automatically be made in the front line when we do not know the efficiency cull.

2329. Mr McCausland: We know how much is being spent on the boards of administration. By this stage, Gavin Boyd must have some picture in his mind about the structure and the related costs and salaries. What is the difference? What will the saving be? What money will go to meet the 3% cuts or be put into the hands of schools? When will we have those sums? When will Gavin Boyd know the cost of his new regime?

2330. Mr McGrath: I do not know exactly when he will have answers to those questions. As he said the last time that he gave evidence to the Committee, work is being done on what models will be in certain areas. You are correct that once that has been done, he will be able to work out what the broader picture will look like and how much money will be saved by certain stages. I do not know how long that will take. We can try to find out.

2331. Mr McCausland: We are now in early March, and the Bill’s Committee Stage will run until some time in September. Can you assure us that we will have a figure before the end of the Committee Stage? Otherwise we are being asked to buy a pig in a poke.

2332. Mr McGrath: We will do our best to get the information for which you ask.

2333. The Chairperson: How will that relate to the business case, about which serious issues were raised? Has there been a revision of the business case for the reasons that Nelson McCausland gave? Not revising it creates the impression that everything is vague and hopeful, which is no way to enact legislation. We expect schools and the other parties involved to sign up and be accountable and show where money will be spent, yet we are allowing the ESA to come into existence on a very flimsy and ad hoc basis. We are being asked to agree to look at the ESA in three years’ time and amend it if necessary, but that is not the reason why we are bringing it into existence.

2334. Mr McGrath: I disagree with that perception. There is a business case on the establishment of the ESA.

2335. The Chairperson: It is only an outline business case.

2336. Mr McGrath: Outline is a technical term used by DFP; outline business cases are detailed, rigorous documents. One then moves to a final business case, which is why the previous one is called an outline business case. However, outline business cases still have to be made to green-book standards and with Treasury guidance.

2337. The Department’s outline business case demonstrates that establishing the ESA will save up to £20 million in the first three years; that will create a vehicle in the ESA to rationalise education administration and draw out further savings. The Department is wary of getting the long-term figure up front because it could be offering hostages to fortune. However, the outline business case is one of the more robust pieces of evidence for RPA changes. If it were regarded as flimsy, some of the other institutional changes are flimsy as well.

2338. The Chairperson: When will we move from outline to final business case before the ESA is brought into existence?

2339. Mr McGrath: Work is in hand to move from the outline business case to the full business case, as required.

2340. The Chairperson: Could the Committee get an update on that?

2341. Mr McGrath: Yes. However, I have had this conversation with you already and with the previous Chairperson. The Department would be hesitant about writing down sure-fire savings over time in a business case. We know that we will have to deliver efficiency savings, and we believe that the ESA is the vehicle to tackle rationalising administration and, as far as possible, make saving that will not affect classrooms. That is the Department’s firm belief.

2342. The Chairperson: No doubt, Mr McGrath, the Committee will return to that issue.

2343. Mr Elliott: I have several issues, but I know that we are pushed for time so I will limit them.

2344. The Chairperson: I assure you that we will come back to them.

2345. Mr Elliott: The last issue worries me, and Mr McGrath’s answer that the Department is reluctant to put something down on paper worries me even more.

2346. Mr McGrath: The Department made it clear that the key objective of the ESA — along with raising standards — is to enable savings to be brought out from the current education administration, to sweep them up and, ideally, to get them into the front line. That is the objective. However, at the minute that is difficult, and I would be nervous about offering up a figure that could be taken as Gospel and almost as a contribution towards savings before we even have a further 3% target. Those figures could be taken as opportunistic savings, and we would still have to make 3% savings targets above and beyond that, which would be punitive.

2347. Mr Elliott: With your indulgence, Chairperson, I think that we will return to that at some stage.

2348. Chris Stewart used the example that the GBA used earlier about defending a case at tribunal, saying that the ESA and the board of governors would be there. Who would take the lead; who would be the defence at the tribunal?

2349. Mr C Stewart: It would depend on the nature of the complaint and the matter that was being complained about. If, for example, it were a dismissal and the ESA had acted on an instruction from a board of governors to dismiss a member of staff — I am not a lawyer, let alone a tribunal chairperson — I would have thought that the lead party would be the board of governors, since it was the body that had taken the action that had led to the dismissal.

2350. Mr Elliott: Therefore the ESA would be the secondary party as the main employer?

2351. Mr C Stewart: I do not know that I would place a great deal of emphasis on who is named first or second.

2352. Mr Elliott: It would be a huge issue, especially for a board of governors.

2353. Mr C Stewart: Not necessarily; the tribunal or court would decide where the balance of responsibility or blame lay and would apply its judgement on remedies or damages accordingly.

2354. Mr Elliott: That is why the Committee wants those who will be responsible to be made clear in the Bill. I appreciate that there will always be legal arguments; however, that highlights the difficulties. I use that as an example, as it shows the ambiguity in the system.

2355. I have another issue that I want to tease out, but I will have time at some other stage.

2356. The Chairperson: Who pays for the process, and will they all be represented separately? There are many matters to be satisfactorily resolved.

2357. Mr C Stewart: There is a short and a long answer to that question. The short answer is that if something goes wrong with employment in the public education service, although the taxpayer would meet the monetary costs, education and children would also have a price to pay because money that should have been spent in classrooms would have been wasted on other matters. Whichever body the court or tribunal fines initially is a matter for the court or tribunal; however, in a publicly funded service, ultimately, the taxpayer pays.

2358. Mr O’Dowd: With respect to Nelson McCausland’s question about the budget, is it not the case that the Department must accumulate some £20 million of savings by the third year of the comprehensive spending review?

2359. Mr McGrath: Yes. Under the CSR, we must realise savings of 3% per annum compounded. With that in mind, we indicated that establishing the ESA under the original timetable would, by the third year, contribute £21 million of savings. There are some concerns about the timetable being delayed, but the savings are already in the bag and, of course, accounted for. We are, however, wary about predicating decisions on possible savings down the line, which may already have been accounted for in the next budgetary process. That is a real concern for us, because we might have to find yet another 3% of savings.

2360. The Chairperson: Thank you. We will ensure that you receive copies of today’s submissions from the GBA and the bursars’ association; in addition, we will ensure that the GBA receives a copy of your response to the issues raised. This is not the end of the matter. I thank you again for your attendance, and, no doubt, we will see you again next week.

18 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Edwin Poots

Witnesses:

Cardinal Seán Brady Mr John Gordon Bishop Donal McKeown Bishop Patrick Walsh Sister Eithne Woulfe		Northern Ireland Commissioner for Catholic Education
Mr Donal Flanagan Mr John Gordon Ms La’Verne Montgomery Bishop John McAreavey		Council for Catholic Maintained Schools

2361. The Chairperson (Mr Storey): Cardinal Brady and delegation, you are very welcome to the Education Committee meeting this morning. Thank you also for making your submission to us in writing; members have had it for a few days. The acoustics in the Chamber are not great, so please bear that in mind. It would help us all to hear your submission clearly so that there will be no confusion. Please make your presentation, Cardinal, and then members will ask questions on it.

2362. His Eminence Cardinal Seán Brady, Archbishop of Armagh and Primate of All Ireland (Northern Ireland Commission for Catholic Education): Thank you, Mr Chairman. On behalf of the Northern Ireland Commission for Catholic Education (NICCE), I would like to thank the members of the Education Committee for their kind invitation to discuss our submission on the draft Education Bill. We are very happy to do so.

2363. The Northern Ireland Commission for Catholic Education speaks for the trustees of the entire family of Catholic schools; that network consists of some 550 nursery, primary and post-primary maintained and voluntary schools in Northern Ireland.

2364. I am joined this morning by some of the members of our commission: Bishop Patrick Walsh, a former Bishop of Down and Connor; Sister Eithne Woulfe, Sister of the Order of St Louis, a religious order that has schools across Ireland, including Kilkeel and Ballymena; and Bishop Donal McKeown, chairman of the commission. We are joined by Mr John Gordon, legal adviser to the commission. We are happy to answer any questions that you might have regarding our written submission.

2365. Before addressing that submission, however, I am conscious that we meet in the aftermath of the brutal murders of Constable Stephen Carroll and Sappers Cenzig Azimkar and Mark Quinsey. I consider those crimes an attack on the whole community. They were an attack on the democratic will of people across this island and on their overwhelming support for the institution in which we are gathered this morning. I am therefore mindful that we are engaging with you today as democratically elected Members of the legislative Assembly. We are engaging in the privileged context of a democracy — a privilege that we can never take for granted. We do so with great respect for you and for your role as politicians.

2366. I am mindful too of our shared duty as elected and as civic leaders to do all that we can to consolidate the progress already made towards a more secure, confident and reconciled future for everyone in our society, not least for the young people.

2367. As trustees of Catholic schools, we are fully committed to playing our part in building a more peaceful future for all in our society. As stated in our publication ‘Building Peace, Shaping the Future’, our society in Northern Ireland has been characterised by profound conflict, and those charged with the education of our young people have an important role to play in breaking down barriers of ignorance, misunderstanding and suspicion. Our schools cannot carry the full responsibility for reconciliation on their own, but we recognise that they have an important part to play.

2368. The publication went on to state that tolerance and respect for difference are at the heart of all Christian and human education. That brings me directly to our submission on the draft Education Bill — respect for diversity is one of the key values underpinning that submission. We see respect for diversity as part of the contribution that Catholic schools make to our society. We also see that respect for diversity as part of the obligation of society to Catholic and, indeed, other schools.

2369. In Britain, the Republic of Ireland, and many other parts of the world, the provision of publicly funded, faith-based schools — or other schools founded on a particular philosophical, cultural or linguistic ethos — is accepted as a normal part of society. I hold that the provision of a diverse range of schools is the mark of a mature, tolerant and reconciled society. Since that is the type of society to which we in Northern Ireland aspire, it follows that we should provide for a variety of schools, based on available resources, from which parents may choose.

2370. The principle of diverse provision is also recognised and protected in international instruments on human rights. Notably, protocol 1, article 2 of the European Convention on Human Rights upholds the right of parents to have their children educated in a manner consistent with their religious or philosophical convictions. As trustees of Catholic schools, we have a duty to strive to ensure that that right of parents is adequately respected and provided for in the Education Bill.

2371. As the Bill stands, we remain unclear as to how certain key aspects of the proposed legislation will operate. We therefore have significant reservations about our ability to support key aspects of the Bill in its current form. Perhaps the Committee will address our concerns.

2372. Before outlining some of those concerns, I want to make it clear that any right that we seek to have respected or any provision or resource that we seek for Catholic schools, we seek for each and every provider of education in Northern Ireland. Therefore we support those elected representatives and others who uphold the principle of equality in education policy and provision in Northern Ireland.

2373. In doing so, we are conscious that some people may have the impression that the Catholic sector is somehow advantaged over other sectors in Northern Ireland; that is historically incorrect. Indeed, until relatively recently, the Catholic sector received less support from the state than any other sector. However, it is true that when other sectors transferred ownership of their schools to the state, the Catholic community maintained its ownership; that took place at considerable financial cost to the Catholic community, particularly to our Catholic parishes. However, it was a cost that generations of Catholics were willing to bear in order to guarantee the ethos of their schools and the right of parents to have such schools. Responsibility for ensuring the continuation of that right falls to us as the trustees of Catholic schools in Northern Ireland, and it is a right that we will strive to uphold in all circumstances.

2374. However, as trustees, it is becoming increasingly clear to us that one consequence of the decision of the Transferor Representatives’ Council (TRC) to hand their schools over to the state is that many parents from other Christian traditions, as well as those from other cultural, ethnic or linguistic backgrounds, believe that their right to have schools with a particular ethos is not adequately provided for. On behalf of the Catholic trustees, I want to make it clear that we will lend our wholehearted support to any legislative or policy change that facilitates the right of parents from other religious, cultural, linguistic or ethnic backgrounds to be more adequately addressed.

2375. To ensure adequate provision for parents who choose a Catholic education for their children, we have highlighted in our submission several key issues that need to be further clarified or addressed in the Education Bill. There are three critical issues on which we are happy to elaborate in our response to Committee members’ questions. First, there is a need to clarify the role of the education and skills authority (ESA) as the employer and/or the employing authority. The proposal in clause 3 for the ESA to be the employer of all staff in all schools is unacceptable; it is a fundamental impediment to the ability of owners/trustees to exercise their right and duty to promote and guard the ethos and defining character of a school. To exercise our duties as trustees adequately, we require that the board of governors of each school be the legal employer of all staff in their schools. As it stands, the provision in the Bill appears to run counter to the principle, which we support, of giving maximised autonomy to schools. Therefore we suggest that further clarification is needed on clause 8.

2376. We accept that the functions of each sectoral support body will be as agreed between the Department of Education and the owners/trustees as stated in policy paper 21. The functions of a sectoral body will be complementary and will not duplicate or overlap with the functions of the ESA. That should be reflected in the proposed legislation. The business plan submitted by the Catholic trustees addresses any fears that members of the Committee may have about the proposed scale of such a body for the Catholic sector — or indeed for any other sector; we are not trying to create a new Council for Catholic Maintained Schools (CCMS). However, we need adequate support to enable the discharge of functions that properly belong to owners/trustees. That would also avoid the necessity of the ESA having, in effect, to negotiate key decisions with every individual school in a given sector. Those support bodies make sense in terms of value for money and good administration.

2377. They have already been shown to play a key role in raising standards. Policy and/or legislation provision must be made for their role in supporting schools in the appointment of teachers, particularly at leadership level; their role on behalf of school owners in the planning and provision of schools; their advocacy role on behalf of a given sector; and their role in supporting and developing ethos.

2378. Similarly, there is no point in having such support bodies if schools in a sector can ignore them. Therefore, it is critical that legislation place a duty on boards of governors to co-operate with the support body in their respective sector. Strong and committed boards of governors are required to maximise autonomy and to ensure the ethos of a school. Clarification is required on the appointment of community governors. It is essential that legislation reflect the importance of making such appointments in consultation with owners and trustees.

2379. That is a short overview of the main issues that we want to bring to the Committee’s attention. Thank you for giving us the opportunity to explain those issues directly. We are happy to take questions — at least my colleagues are. [Laughter.]

2380. The Chairperson: You have delegated autonomy on the commission’s behalf, Cardinal. First of all, Cardinal, the Committee endorses your opening comments on the recent murders. One of the soldiers who was murdered in Antrim will be buried today, and our thoughts and prayers continue to be with those who have suffered as a result of those heinous crimes. We welcome everyone in our society’s condemnation of those events.

2381. We appreciate the candid way in which you have raised issues. In the past weeks, the Committee has listened to the concerns of several organisations, and we will continue to take oral evidence from relevant organisations to establish plainly how the Bill can be amended to become more acceptable. Your remarks underscored an issue that has been prevalent in our deliberations — the lack of clarity. A more than considerable mist still hangs over the detail — or lack of detail — on the ESA, particularly on the issue of employment and the employer.

2382. Last week, the Committee heard the Governing Bodies Association (GBA) raise its concerns, which the Department dismissed in a subsequent rebuttal. As the process continues, there seems to be — as with most issues in Northern Ireland — two camps. The various education providers are of the opinion that there is no clarity on the employer issue. However, the other body of opinion — primarily the Department — believes that there has been a misunderstanding and maintains that there is clarity in the Bill and that it contains no threat to the various bodies that raised concerns.

2383. Members should indicate their desire to ask questions, because I do not want to ask all the questions; I am sure that the Committee will agree that I have never done that. Cardinal, will you and your team clarify the current representation of trustees on boards of governors?

2384. What influence and consultation rights do trustees have in the appointment of other members of a board? Is the representation and influence not sufficient to enable trustees to trust boards of governors to safeguard the ethos of Catholic schools in formulating schemes of management and employment? Is that not enough to ensure that the ethos is developed and maintained by a body that is significantly accountable to trustees?

2385. Dr Brady: I invite Bishop Walsh to take that question, because he has much more experience of serving on boards of governors in this part of the world than I have.

2386. Most Reverend Patrick Walsh, Bishop Emeritus of Down and Connor (Northern Ireland Commission for Catholic Education): That is a very important question. We talk about the ethos of a school, and we all know that each school has its own character. However, it is essential to us that the entire Catholic sector has an overarching ethos, and that is what we seek to maintain. It is the responsibility and duty of bishops, religious and trustees to determine the overarching ethos of each school, and each school also has its own particular character within that ethos.

2387. We expect every member of the board of governors of one of our schools to subscribe to the ethos of that school; there is no point in appointing someone to the governing body of a school who is not in agreement with the general ethos of that school. The CCMS, of which I was a member for many years, had several members who were not of the Catholic faith. However, those people were totally in tune with the ethos for which the CCMS stands, and they made a valuable contribution. Irrespective of their tradition, no one who does not accept the ethos of one of our schools should be a member of the board of governors of that school.

2388. Under the current composition, trustees have the right to appoint directly four members of a board of governors; there is also an elected teacher, an elected parent and so on. Until now, the Department of Education has appointed its two members in consultation with the trustees, and the education and library boards have done likewise in the maintained sector. Those appointments have always been made in consultation with trustees, and we want the new legislation to ensure that that continues. I understand that the relevant schedules of the Education (Northern Ireland) Order 1998 and of the previous Order still apply and that there will be meaningful consultation with the trustees with regard to appointments.

2389. We have no problem with the ESA having the right to make appointments — whether two, if that is the number decided — to the board of governors of our schools, provided that those appointments are made in meaningful consultation with the trustees. It is for that reason that we have asked for the phrase “in consultation with" to be used in the legislation rather than simply “consulting". That should ensure meaningful consultation rather than allow people merely to say, “We have consulted; end of story." We want serious and meaningful consultation and, therefore, assurance that those who are appointed to the board of governors of a school subscribe to the ethos of that school.

2390. Most Reverend Donal McKeown, Auxiliary Bishop of Down and Connor (Northern Ireland Commission for Catholic Education): We all want a more effective and efficient running of our education system. The Government have the legislature, the Executive and the judiciary; similarly, there is a range of bodies in the education system between which a balance must be maintained. Those bodies include the Department of Education, the ESA, the trustees and owners of schools and boards of governors; they all have vital and complementary roles to play in the running of schools. We have a sense of a sectoral identity, but governors are committed to running their schools.

2391. It is a question of striking a balance between harnessing the passion of individual governors and their commitment to their schools — which has raised standards across the educational community in Northern Ireland — and the broader educational communities. There are balances to be struck; we do not seek out-and-out control.

2392. Under present legislation, boards of governors have a huge amount of power and trustees have a negligible amount of right. We are trying to determine how to ensure that all education stakeholders — which is now, according to a radio programme this morning, a very unpopular term — can assert their rights without disturbing the equilibrium at the heart of the education system. We do not seek a Stalinist, centralist control: we want to maximise how devolved responsibility can be exercised in the interests of pupils while maintaining a cohesive system and cohesive sectors.

2393. The Chairperson: The commission’s submission stresses the role of the employer as the person or body with the power; even more so than the issue of ownership. I noticed that your submission draws a distinction between the employer and the power of the trustees.

2394. Under the current arrangement, the CCMS employs teachers and the Department employs non-teaching staff. If we take what the commission proposes to its logical conclusion, the commission would like the power that is the domain of the CCMS with regard to teachers given to individual boards of governors. That would lead to boards of governors being the employers of all non-teaching staff.

2395. Is that not a step back from a more streamlined and efficient way of governing our schools? We will discuss clause 8 in a minute or two, but I want to tease that point out first. The submission rightly refers to attempts to achieve more streamlining. If we started with a clean sheet, we would not be starting from here, but to use a well-worn phrase — which the media may no longer find acceptable — we are where we are. The sectors, the institutions and the bodies govern and are responsible for education. However, do you not see that there could be a conflict between trying to achieve a more streamlined way of governing our schools and what is sought in your submission?

2396. Dr McKeown: At present, there is a wide variety of relationships between schools and their employees. The voluntary grammar sector employed everybody — it chose when to employ, when not to employ, when to promote and so on; whereas the CCMS used a comparatively light touch as an employing body. That ensured that a school followed correct procedures in the appointment of staff, but the boards of governors made the decisions. With the education and library board situation, people had to go through a board of governors and then pass on a number of names. We want to find the most effective method.

2397. We are keen that as much responsibility as possible should be devolved locally to avoid having multiple tiers of filters through which matters must proceed. We seek effectiveness and efficiency, and it is possible to balance those. The last thing that we want to do is add more layers in attempting to remove the multiplicity of layers that we have at present.

2398. The voluntary grammar sector has demonstrated its ability to manage its resources effectively and accountably.

2399. If that model works for some schools, then as much authority as possible should be devolved to them. That should be done in the interests of good education, the raising of standards, and it should be done in such a way that the schools are accountable.

2400. The Chairperson: Some people might dispute that the CCMS could be described as having a light touch. I have never heard it described as such before.

2401. Dr McKeown: I was referring to appointments.

2402. The Chairperson: I appreciate that. I am sure that the CCMS will be able to rebut that comment when it appears before the Committee later. Bishop Walsh, do you want to comment?

2403. Dr Walsh: Bishop McKeown has summed up the position. The voluntary grammar sector, in which the schools are generally large and have plenty of resources, has shown that it has experience in that area; there are strong boards of governors and they have been well able to make successful appointments. Schools in the maintained sector have seen the value of the CCMS having a “light touch" in assisting them to make appointments.

2404. Some small schools would not be in a position to make appointments without some assistance, and perhaps the support bodies could provide that. However, in general, schools should be given as much autonomy as possible.

2405. The Chairperson: I wish to speak personally, rather than on behalf of the Committee, about one of my concerns. I would like locally delegated autonomy, which has been the domain of the voluntary grammar schools, to become the domain of all schools. That autonomy has been the envy of the non-grammar schools, and Donal referred to the multiple layers involved in making teacher appointments and choosing one candidate from three. Such autonomy would, therefore, be good for our education system.

2406. Clauses 3 and 8 are causing major concerns. Clause 8 states that the ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters. If model employment schemes and associated guidance were to clarify that and any other points for which you consider clarification to be necessary — and if those schemes were subject to full consultation with submitting authorities and, possibly, an independent appeals system or to regulation and control by the Assembly — would that remove some of the commission’s key concerns?

2407. That issue was touched on at last week’s meeting, and the Committee asked the Department to provide “mechanisms" for how it could be done. If such mechanisms, structures, and regulation were added, would that help to address your concerns?

2408. Mr John Gordon (Northern Ireland Commission for Catholic Education): A pragmatic solution is required. A dispute mechanism would deal with the disputes that arise between boards of governors and the ESA. Disputes within particular schools are likely to be internal; they may relate to selection and recruitment or to disciplinary issues. This is about providing boards of governors with the right to deal with disputes as they deem fit.

2409. Clause 8(2) does not specify who will determine what is lawful. If the ESA approves a scheme of employment and management for a particular school, it should adopt a hands-off approach thereafter, and the school should have the right to choose its own representation at any tribunal or court hearing. The ESA should indemnify the school, as suggested in clause 8(2), although clarification is required about any costs or damages that may be incurred in facilitating a school’s challenge and in dealing with a dispute.

2410. It would be only if it were not possible to deal with a situation that there would be a conflict with the ESA. The ESA should not be directing schools in the minutiae of employment and disciplinary matters. The position on the ground at the moment is very similar. Schools have the power in the maintained sector — and, indeed, the voluntary grammar sector — to conduct and represent themselves at tribunals and courts. That position should continue.

2411. The Chairperson: To clarify the issue: are you saying that provision for appeals and other mechanisms would only resolve disputes between boards of governors and the ESA and would not address the fundamental problem?

2412. Mr Gordon: Yes.

2413. The Chairperson: So, there is a need to go further than appeals and mechanisms?

2414. Mr Gordon: I am not sure whether there is a need to go further. There should be clarification, either in primary or secondary legislation, that boards of governors would have the power. In fact, it is hinted in various papers from the Department and in some of the evidence that was given last week that there would be a clear autonomous employer role for boards of governors. The words “advocacy" and “representation" were used. If that were the case, boards of governors would, obviously, have the right to employ their own lawyers to represent them. Those lawyers, in turn, would represent not only the school but the ethos of the school in the manner in which a case is taken forward to a tribunal or court.

2415. The Chairperson: We always return to the same issue — the need for clarity. In an appeal situation, who would be the appellant and who would represent education? Last week, an eminent legal expert appeared before the Committee on behalf of the Governing Bodies Association; today, Mr Gordon is here. The Department is stating that the ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters. There is now, clearly, a conflict of legal opinion. At some stage, the Committee will have to determine which of the two legal positions it will accept, given all that it has heard. We will obviously have to return to this issue.

2416. I do not want today’s session to be curtailed — if we run over time, so be it, provided that that time is valuable and well spent. I want the commission, the CCMS, and all organisations who submit oral evidence to have the confidence that the Committee will listen genuinely to the arguments. That is our statutory responsibility and duty, and we will carry it out fully.

2417. Mr O’Dowd: Your Eminence, Bishop Walsh and Bishop McKeown, you are very welcome. I have read your speech of last Thursday with great interest, and we have a responsibility to study that speech and consider the concerns that you raise in it, which are clearly deeply felt. Today, you have again outlined many of those concerns; and, hopefully, from this and other engagements, we will be able to clarify the issues and use our best offices to reassure where we can and build a common approach to the future provision of education.

2418. The role that the commission and the CCMS have played in education is invaluable. You have provided an excellent education service through very difficult times in our collective history, and you are, justly, proud of that. We do not want to do anything to damage that provision or the relationship of that provision.

2419. Many of the points that I wish to raise have been raised by the Chairperson, particularly in relation to the role of boards of governors. I think that this is an area in which clarity has to be given, either through further discussions or through some other mechanism. I do not read the situation in the same way as you are reading it — that the roles of boards of governors are being diminished, either in providing ethos or as the employment authority. Will you map out the differences between what is in place and what you see happening? John Gordon already touched on the legal provision and tribunals, but where do your concerns lie about the day-to-day running of schools and employment management?

2420. Mr Gordon: Obviously, there is a difference between the Catholic-maintained and voluntary grammar sectors. In the latter, boards of governors are the employers and have the right to hire, fire and to discipline teachers and pupils alike. Frequently, one finds that voluntary grammar schools have taken out insurance to protect themselves against the costs they might incur were they to end up in court or at an employment tribunal. Therefore, there is complete autonomy in that sector.

2421. On a day-to-day basis in the Catholic-maintained sector, as Bishop McKeown has said, the CCMS has responsibility in statute for the scheme of management, which includes employment, selection and recruitment, and for assisting boards of governors to deal with schools. Schools have the day-to-day decision-making power on issues such as selection, recruitment, hiring, firing and discipline. The CCMS support system makes a valuable contribution to our schools, particularly — as Bishop Walsh indicated — the smaller ones.

2422. The situation is different again in the controlled sector, where schools are subject to the education and library boards. Those boards have their own joint legal services, which provide representation for controlled schools at tribunals and in courts on a range of issues, particularly those relating to the schools estate. I assume that those joint legal services will cross over to the ESA, which will then also have its own in-house legal team.

2423. Mr O’Dowd: As the Chairperson said, we have had three different legal interpretations. That is the nature of legal matters, which is why there are so many solicitors and barristers — we are fortunate to have so many of them. Therefore, the Committee has to do its homework to examine those opinions. However, the ESA is not bringing forward any new employment legislation; it will only interpret and adapt what currently exists. Is that a fair statement?

2424. Mr Gordon: That leads to the crucial statement: who determines what is lawful?

2425. Mr O’Dowd: It would be a tribunal or a judge.

2426. Mr Gordon: If one is providing an autonomous role for boards of governors, then it they who should determine what is lawful, not the ESA.

2427. Mr O’Dowd: In your earlier comments to the Chairperson, you said that the ESA should legally indemnify boards of governors. In such circumstances, a board of governors, as an autonomous unit, would be saying that its interpretation of the law is correct and that it is prepared for its decisions to be challenged in court. Is that what you are saying?

2428. Mr Gordon: Yes; essentially, boards of governors should be given the power to make decisions. That is what happens on a day-to-day basis at the moment. Provided that a board of governors acts responsibly, within the law, and not recklessly, it is indemnified by the relevant education and library board for any decisions that it takes. The safeguard in that is what is referred to in clause 8(2); that boards of governors have a scheme of management and employment that they are asked to adhere to on issues such as selection and recruitment and that that scheme of management and employment respects and enforces current equality legislation.

2429. Nothing is black and white when it comes to selection and recruitment, because the basis and nature of applications can be contested. The board of governors that made the decision in the first instance must determine whether allegations made by an applicant or complainant are valid. It should, subsequently, be afforded an opportunity to defend its decision-making power rather than having the ESA simply overriding it. At present, education and library boards do not deal with matters in that way, and the process should remain as it is.

2430. Mr O’Dowd: However, a defence could be based only on the current law; is that right?

2431. Mr Gordon: That is correct.

2432. The Chairperson: Apart from the veto, or exemption, on recruitment, is the commission seeking any other exemptions?

2433. Mr Gordon: No. The schools will adhere to the current equality legislation.

2434. Mr D Bradley: Good morning, Your Eminence and team.

2435. Autonomy is one of the crucial concepts in this matter, and your paper outlines your support for maximum autonomy. The Department has a different concept, which it calls maximum supported autonomy. Your proposal that employment powers be vested in boards of governors is quite radical, because the view expressed to date is that many of them do not have the capacity to carry that responsibility. Therefore, until now, sectoral support from the CCMS has been required to support and advise boards of governors on employment issues, which are, as we all know, a potential minefield.

2436. To date, the concept of maximum supported autonomy has operated in the maintained sector. However, you talked today about placing that burden of responsibility on schools, and Bishop Walsh mentioned that some of the smaller schools would not be able to deal with employment matters without further support. Are you moving towards the Department’s position on supported autonomy?

2437. That leads to the question: from where would that support, if required, come? The evidence that the Committee has received so far is that the ESA would encourage schools to be as autonomous as possible while supporting them when needed. Bishop Walsh suggested that the new emerging sectoral body, or bodies, should provide that support. Paragraph 7 of your paper states that you envisage a need for:

“Adequate structures of support, co-ordination and solidity for each education sector in Northern Ireland."

2438. How far should that support extend, and to what extent should it be provided for in statute?

2439. Dr McKeown: I will consider the question in the broad sense, and perhaps John will talk about any legal technicalities. We all recognise that having a multiplicity of education bodies was not the most efficient and effective way of administering education. To ensure that best practice can continue, we must take into account the current situation in which some schools have experienced a huge amount of autonomy and in which others accept that they need a great deal of support.

2440. We are not hung up on individual phrases as long as the outcomes benefit young people, serve the common good and work in the interests of reconciliation. From the information in the consultation paper and the advice that the Committee received from the Department in early January 2009, it is quite clear that the role of the sectoral body would be, primarily, to provide advisory, representational and advocacy services, but not front line services. We are not looking for a body to provide those front line services.

2441. If a school can get all the advice that it needs about correct procedures from the ESA, then that is fine; as long as the school is in a position to make its own decisions as much as possible. The CCMS structure seemed to have provided for that by outlining what schools should do and supporting that work, while resting all decisions in the hands of schools.

2442. It seems that we want to take the range of sectors and maximise the best that is currently available in the interests of all. It is important to note that in the review of public administration the most publicly administered schools were not necessarily the most successful. That was not necessarily the most successful way to get the best outcomes. Therefore, the question is how can we build on what is already good in our system?

2443. Mr Gordon: The commission wishes to see the provision of sectoral support — not just to the Catholic sector but to all sectors — reflected in the legislation. It is quite extraordinary that the Catholic sector — the largest sector and provider of education to children in Northern Ireland — is not supported and maintained in the legislation. Yet, I note that the Bill does not seek to repeal article 64 of the Education Reform (Northern Ireland) Order 1989. Paragraph 1 of article 64 states that:

“It will be the duty of the Department to encourage and facilitate to development of integrated education".

2444. That article remains. In addition, Irish-medium education, by virtue of article 89 of the Education (Northern Ireland) Order 1998, is also being retained. Therefore, two smaller sectors within education are, in fact, getting statutory encouragement and support yet the largest educational sector is not receiving such support in the Education Bill.

2445. The Chairperson: Following on from that point, the Department, in its perceived wisdom, says that it is introducing the Education Bill to get a more streamlined and equitable system of governance. I determine from your comments that we will not have such a system because two sectors have a position of prominence over and above the other sectors because of article 64 of the 1989 Order and article 89 of the 1998 Order.

2446. Mr Gordon: The Department has a statutory obligation to encourage and facilitate the development of Irish-medium education and integrated education. The Department has recognised that sectoral support is required not just for those sectors and the Catholic sector, but for the controlled sector too. The Cardinal has alluded to the fact that the commission believes that that support should be extended to all sectors and representatives of the various sectors within education and should be reflected in the legislation.

2447. Sister Eithne Woulfe (Northern Ireland Commission for Catholic Education): I will make a couple of important points about statutory obligations. There is a level of mutual accountability once something is part of a statutory instrument. In this case, education is a common good. Therefore, support services for whatever sectors must provide value for the common good. There should be a mechanism in place to ensure accountability and transparency, and ensure that they are not simply part of a private enterprise. We are talking about public moneys and about something that provides a service to the people.

2448. One of the things that the CCMS has proven, as has research in other jurisdictions, is that ethos adds value. Every group of schools has an ethos, and it is important that, somehow or other, in the context of diversity, each distinctive ethos is promoted — not as segregation, but as some sort of healthy mutuality. It is therefore important that there should be some process of inspection to determine how those support services add value to the education experience of young people, because, ultimately, that is the bottom line.

2449. Mrs M Bradley: Good morning, Your Eminence, and everyone. In your submission you state that the sectoral support bodies should have a role in raising standards, and that that is the Department’s rationale for establishing the ESA. Is there a danger that, with the ESA and a number of other bodies involved in raising standards, we may have a case of “too many cooks", and standards may suffer as a result?

2450. Dr McKeown: You are quite right in putting your finger on the need to raise standards. Too many young people are being failed by the current system, despite the wonderful efforts of so many schools and teachers. There is a balance to be struck between ensuring that we have a streamlined system and maximising the ability of schools locally — to bring in local governors, to work with people to develop links with local enterprises and businesses, and all of that sort of thing, in the interests of quality outcomes.

2451. Outcomes are not simply the result of inputs — they arise from an atmosphere, a sense that, yes, we can do it, and a sense of belonging and identity. I often quote one of our local parish priests in Belfast who says that in his parish, male life expectancy is now 50. There is a shocking level of people being failed by the system, and just having good teachers and good governors is part of the process of dealing with that.

2452. We are looking for what will actually deliver on the ground in particular parts of Belfast or the rest of the country. If that costs appreciable amounts of money, we have to ask whether it is worth investing whatever it takes in order to bring up that tail of young people who are being failed by society. They are falling into addictions, self-harm, depression, and all of those things. We have to ensure that their needs are a priority for us, and that we put in place a system that will ensure quality outcomes, especially for those with the biggest needs.

2453. Many of us would have done well in a hedge school. Our emphasis has to be on what is going to help those who most need support, not just what will look well on a piece of paper as a nice flow diagram. Of course, there has to be accountability and an organised system, but it is important that that is biased in favour of those who have most needs, of one sort or another.

2454. We in the Catholic sector are certainly not looking for any form of unilateral declaration of independence — we are looking to maximise outcomes for everybody, to ensure that reconciliation is a key part of what we do, and to serve the common good. Being a very large sector is not just a privilege, it is also a huge responsibility. We have to ensure that the legislation ensures outcomes, particularly for those who have the greatest needs — there are too many of those in our society at the present time. The taxpayer will pay for the problems that arise from that into the future.

2455. Dr Walsh: In response to Mrs Bradley, it is important that we all recognise the importance of sectoral support bodies, as the Department of Education has done. That is accepted, and we are very pleased about that. As the Cardinal said, in policy paper 21 the roles and functions were spelt out quite clearly, and there is no question of duplicating the roles and functions of the ESA. It is important that the roles and functions of support bodies should be enshrined and made clear in legislation. That is the kind of clarity that we need.

2456. There is one point following from that, which Bishop McKeown has mentioned — we all have to be accountable. It is very important that if a particular support body is obliged to support schools in its sector, the schools are obliged to accept and consult with that support body.

2457. That is also important. Our submission says that schools must have due regard to the ESA’s advice as they would with the sectoral body. I hope that that clarifies our position.

2458. Sister Woulfe: I want to reinforce Bishop Walsh’s comments. There are, probably, three key issues. First, support bodies should be slimline and should not duplicate services that are provided by other bodies. Secondly, as the Chairperson outlined in his introductory remarks, there is a need for clarity, and sometimes the devil is in the detail. Thirdly, there must be clarity in the mediation of interests and accountability, and that important issue should be included in statute. I hope that we will not have too many cooks but will have a richer broth. [Laughter.]

2459. Mr Lunn: Good morning, Your Eminence. Good morning, Bishops. The word “ethos" must be the most used word in this morning’s discussions. If I thought that any of the Bill’s provisions posed a genuine threat to your right to maintain a Catholic ethos in your schools — or to the perceived ethos of voluntary grammars — I would oppose it. However, I see no such threat.

2460. You have stressed the critical link between employment and ethos, and the employment of teachers is of primary concern to you. I am sorry to revisit old ground, but your boards of governors do not employ your teachers. However, paragraph 9 of your submission states:

“NICCE wants to make it clear, in the strongest possible terms, that it regards the right of Boards of Governors of Schools to be the legal employer … as critical to the future provision of schools of a particular ethos and defining character".

2461. That has not been the case to date. An arm’s-length body — the CCMS — has employed teachers, and the ESA will now do so.

2462. I do not know whether the CCMS has a light touch or not, and neither do I know whether the ESA will have a light touch or not; but I do know what the Bill says. Under its provisions, only boards of governors can decide which staff to appoint. That is included in the departmental response; it could not be clearer.

2463. An eminent QC who attended the Committee last week on behalf of the GBA made a similar point. However, no matter how eminent he was, he did not convince me that a problem exists. In fact, he gave one ridiculous example — I will not bore you with it — concerning Irish-medium schools. How do you explain your desire to change the existing system from the CCMS being the employer to individual schools, rather than the ESA, being the employer? Moreover, will you reiterate your problems with the appointment of community governors to schools, where the ESA must, by law, consult trustees? I do not understand your problem with that.

2464. Mr John Gordon (Northern Ireland Commission for Catholic Education): Mr Lunn asked why we want boards of governors rather than the ESA to take decisions. The CCMS shared, fostered and developed the aspiration of Catholic ethos. As Bishop Walsh said, it had an overarching statutory role, which is outlined in the Education Reform (Northern Ireland) Order 1989. The Bill proposes the abolition of the CCMS, but no substitute has been proposed.

2465. You are quite right: if boards of governors have the right to hire and fire teachers and to deal with disciplinary matters, what happens when a legal challenge is made to their decision making? Who represents the board of governors? Is the matter kicked upstairs to the ESA, which would mean that a Government secular body would represent the interests of a school with a particular ethos to foster? It is more appropriate that boards of governors have that power and that they deal with decision making and contested issues themselves.

2466. In the current situation, the CCMS was at idem with any board of governors that it represented. To my knowledge, there is no record of any differences of opinion or difficulties between a board of governors and the CCMS or in a board of governors following advice from the CCMS. The sectoral support body that is envisaged and which we would like to see enshrined in the legislation would perform a similar, albeit reduced, support role in those circumstances.

2467. Dr Brady: Teachers are vital to the ethos of a school. I do not know whether the CCMS had a light touch or a heavy touch, but we have the impression that it had a nearer touch than the Department. That is vital.

2468. Mr Lunn: The witnesses would know better than I whether it had a light touch or a heavy touch.

2469. Dr McKeown: Trevor highlighted the question of community governors. Bishop Walsh made it clear that the corporate body of a board of governors should have some agreed vision for the future. It would be difficult for an integrated school to have someone on its board of governors who opposed the school’s philosophy. It would be difficult for an Irish-medium bunscoil or meánscoil to have a governor who was not really all that fussed about what that school was trying to achieve.

2470. There should be adequate public representation on boards of governors, but cohesiveness is needed on agreed broad principles about what the school wants to attain. Due note should be taken that there should be some consonance between publicly appointed governors and the ethos of the school. The last thing that we want is boards of governors to be in constant conflict over all sorts of things.

2471. That does not mean that the trustees would have to vet appointments, but those who agree to serve on the board of governors of a controlled, voluntary, or any other school, should at least be committed to the broad vision of that school. We are trying to offer leadership, as trustees in the Catholic sector, on some very current issues. It is important that governors are committed to their school, and it is also important to recognise that the trustees have a role in the overall direction in the sector. That must be recognised; otherwise we end up with governors fighting one another instead of running the school. We want to avoid that in all circumstances.

2472. Mr Lunn: Why would the ESA, in consultation with the trustees, want to appoint a governor who did not respect the ethos of a school? The question seems almost hypothetical; but why would that be a problem?

2473. Dr Walsh: Insofar as one can speak about one’s personal experience, it has not been a problem before now. It seems that there has been proper consultation in the voluntary grammar sector and in the maintained sector; we just want to ensure that that will continue. As the Department pointed out, it is included in schedules 5 and 6 of the Education and Libraries (Northern Ireland) Order 1986, and it remains the case.

2474. We would like the word “consult" to be strengthened by a phrase such as “in consultation with" so that there is genuine consultation. So far, that has taken place, but there is no guarantee that the ESA may interpret consulting in the same way. It may regard consultation as simply phoning up and providing two names.

2475. Mr Lunn: The Department appeared to think that that small change in the wording would change the emphasis of the Bill, although I cannot see it myself. I do not disagree with the small change that you propose.

2476. I am pleased that paragraph 25 of your submission is headed “Membership of the ESA"; I have finally found someone who agrees with me. I am slightly worried. [Laughter.]

2477. Dr Walsh: We did not consult you, did we?

2478. Mr Lunn: The proposal that the ESA have a majority of local councillors on its board fills me with dread. Paragraph 25 of your submission states:

“In NICCE our experience of the contribution of elected representatives on such bodies has generally been positive".

2479. I will not go into my thoughts on that, but “generally" means that sometimes it has not been positive, and the current situation of the South Eastern Education and Library Board might provide a clue about why I say that.

2480. Although you have not been specific about what you would like to see, can I take it that you would still like to see local councillor representation on the ESA board but not as a majority — or even close to a majority? Is that a fair summation of what you think?

2481. Dr Walsh: We simply ask for a better balance. It is important that the people who run the ESA will be appointed not simply because they happen to be councillors — or anything else — but because they have a specific contribution to make to educational thought. The ESA should be an educational body, and we are asking for that balance to be struck.

2482. Dr McKeown: Our education system has survived difficult years — with schools often being havens of calm in the midst of a very troubled society. Educationalists have done a reasonably good job of running our education system, and there is concern that non-educational issues might, on some occasions — a minority of occasions — interfere excessively in the decision-making process.

2483. I understand that a majority of the ESA board must be councillors — which is a reasonable, if small, pool from which to draw — because the Assembly will be responsible for passing legislation. It would be inappropriate for the body that passes legislation to be involved in the implementation thereof. We are expressing our concerns. Knowing the nature of Northern Ireland, sometimes political priorities might get in the way of what educationalists might see as other, more important, priorities.

2484. Mr Lunn: I am glad that you raised it in your submission, as we have been able to put it on the record.

2485. The Chairperson: I am conscious that we are running over time. However, I want to ensure that everybody has the opportunity to raise issues that concern them. Nevertheless, I ask members to be conscious of time, because we still have a considerable amount of work to get through.

2486. Before we move on, I want to raise a point about community governors. What is the definition of community? That was not picked up in your submission. How would we define the local community? Is it the faith-based, the geographical or the social community? That needs clarity, and we need more work on the provisions for community governors in clause 35, as they are very broad and should be more defined.

2487. Mr Poots: Just to clarify, the South Eastern Education and Library Board was a quango — 60% of which were not public representatives — that got itself into huge debt, and public representatives stood against cutting special needs provision. We are in this mess because of a quango of appointees, not because of public representatives.

2488. Bishops, you set out your stall in article 7a of your submission quite clearly on a faith-based education, which you say is supported by the European Convention on Human Rights.

2489. It appears to me that there is an inference inherent throughout your submission that the legislation is moving away from your right to provide a faith-based education and that the ESA will undermine your position.

2490. Dr McKeown: We are raising concerns about the legislation’s ability to ensure that, as a sector, we can act in a cohesive manner. The Bain Report of 2006 recommended that sectoral bodies be supported, particularly for planning. The ability to bring schools together — not to knock heads together but to recognise that there are overriding priorities other than local priorities — is very important in the context of the demographic downturn. If we individualise schools excessively, all sorts of influences can become involved in deciding what a school will do, because a short-term action — for example, for the lifespan of a board of governors — seems to be the best way forward.

2491. I go to every monthly meeting of the TRC; I am an agenda item every time, because there is a recognition of the need to ensure that faith-based education — whatever that might mean in future — continues to be accessible. As someone said, in future the problem will not be so much religious difference as religious indifference. The problem with the present system is that, in many ways, there are no secular schools for those who would like an avowedly secular education.

2492. In 20 years’ time, there will be a major reshaping of the alliances and allegiances of the education system in Northern Ireland. We are working with the transferors to ensure parents’ right to have a faith-based education system in Northern Ireland that is in no way damaged by legislation, changes or streamlining. Sectoral bodies must have the right to negotiate and to work together to create new types of schools. If we centralise and individualise schools excessively, we will end up with many small empires without the cohesion of the vision and the value that ethos brings. We are looking for a balance to ensure that faith-based education will be an option for as many people as want to take advantage of it in 20 years’ time.

2493. Mr Poots: Would you accept the argument that the Bill gives schools the right to operate according to their own ethos and practices and brings together various streams in the overall delivery of education under the ESA? The ESA is the paymaster, and he who pays the piper calls the tune.

2494. Dr McKeown: I have no problem with that. However, it is important to recognise what has enabled schools here to deliver the highest quality of education: the ability of individuals and sectors to work together. Fifty-seven per cent of pupils in Northern Ireland do not go to controlled schools; that, as the Chairperson said, is where we are starting from. We are looking for something that delivers outcomes — I keep repeating that — and which will allow those who wish to choose faith-based education in an increasingly secular society to do so. It is possible to ensure streamlining, efficiency and effectiveness within such a system. The danger is that we end up with something that looks well on a flow chart but which does not deliver.

2495. The ability to harness local energy and enthusiasm in a group of schools is very important, as is area-based planning, which the Bain Report was strong on and in which we are at present involved. A balance can be struck. However, excessive paring may not deliver the outcomes that we all passionately want for our schools.

2496. Mr Poots: I take it that the ethos for which you argue and which you support and the autonomy for that ethos is something that you would want for the voluntary grammar sector as well.

2497. Dr McKeown: The voluntary grammar sector has a range of —

2498. Mr Poots: I mean that you would not seek something for your own sector that you would not seek for another sector.

2499. Dr McKeown: We have said that clearly. We have a clear set of documents about the Catholic ethos. The voluntary grammar sector is unified in that it has a particular status in legislation, but there is no agreed ethos for voluntary grammar schools, as far as I am aware. As a former principal of one, I was not conscious of that.

2500. They have a particular interest and structures, but I do not think that there is an agreed ethos for voluntary grammar schools, except in a comparatively limited sense. I think that we have a much broader sense of ethos; however, it is important that those groups of schools and individual schools have the right to be supported in gathering together where they have common interests, because it is all directed towards delivering quality outcomes.

2501. Mr Poots: I take it, then, that you would envisage voluntary grammar schools being in existence for some time to come.

2502. Dr McKeown: They are independent schools. What contribution they make to society and what role they play in the education system is a different matter, but they exist as individual schools, and their autonomy is precious to them and they have every right to maintain it.

2503. Sister Woulfe: Mr Poots argued that the paymaster was the architect-in-chief of a school. The paymaster is responsible for the distribution of the public purse on behalf of the taxpayer, but that does not mean that the paymaster is the arbiter or the creator of the profile of school provision or ethos in a democracy. Democracy seeks to reflect the diversity of society, and that is the purpose of some of the changes. The other purpose — to which we subscribe in paragraph 8 of our submission — is that the Education Bill seeks to establish:

“a more streamlined, coherent and efficient system of education".

2504. That is the core. Everyone here wants an efficient, coherent education system that is not just value for money but also value for the young people in the education system. That does not mean one size fits all, but it places an obligation on the legislation and on the ESA, within its powers, to clarify the role of the constituent bodies and what demands are to be made of them so that some of them do not become privileged.

2505. The voluntary principle of that devolution is particularly important, whether schools remain voluntary grammar or another kind of school.

2506. Mr Poots: Bishop McKeown, in response to an earlier question, suggested that we need to provide “whatever it takes" to deal with the educational tail, but we do not have “whatever it takes". Of a budget of £9 billion, education takes about £2 billion. We do not have much flexibility to provide “whatever it takes".

2507. Would you agree that you have a role to play in ensuring that education is provided more efficiently and at a lower cost-base than at present, given the diverse range of education that it is provided? Should you not co-operate fully to deliver education more efficiently so that more resources go to the youngsters who need them most? Should education not be about children first and foremost rather than about ethos or faiths or anything else?

2508. Mr Gordon: Following up on Mr Poots’s last point, and I am sure that Mr Flanagan will visit this —

2509. The Chairperson: He is a soft touch. [Laughter.]

2510. Mr Gordon: The Catholic sector has, vis-à-vis the education and library boards, provided value for money in representation and education. To return to the initial question, the commission believes that the Education Bill does not go far enough in certain areas. From answers to questions, from the Department’s evidence to the Committee last week, from the Bain Report and the RPA papers, it is clear that sectoral support bodies are necessary.

2511. Since that is the case, and since sectoral bodies represent all sectors in education, why have they not been included in the Education Bill? It makes more sense to include them in it, as you will obtain the trust and confidence not just of the commission but of the Governing Bodies Association and the other sectors that have given evidence to the Committee.

2512. Dr Walsh: Mr Poots spoke about children and ethos, among other things, and since he might have used a throwaway phrase I do not want to quote him exactly. However, putting children’s education first and maintaining ethos do not exclude each other. It is important that children are educated in a school, not in a vacuum or even in a hedge school — even though I know that Dr McKeown would have prospered at one.

2513. Children are educated in schools that have a certain thrust and character, and it is those factors that provide good education in a sector; therefore, they should not be separated out, Mr Poots. Ethos is an important factor in the good education of children, and for us, children are important. We have said that all along, and it is good that children are beginning to take centre stage in the education process. That is what is good for children.

2514. Mr Poots: The reality is that many schools are exclusive.

2515. Dr Walsh: That is another issue and not quite ad rem to this discussion.

2516. Mr McCausland: I have three questions. First, as regards governors and their appointment, you said that at present the Department of Education and the education and library boards, in consultation with the trustees, appoint governors. When I sat on an education and library board school management committee, we were given a list of people who had been proposed as governors, and that list was essentially rubber-stamped. I assume that that list came from the CCMS. Why will it be any different under a new regime?

2517. Dr Walsh: That is unknown. It has always been a question of names being suggested backwards and forwards; that is the kind of good consultation that we require.

2518. Mr McCausland: In my experience, there was no backwards and forwards; it was simply a case of presenting a list to a board of governors to rubber-stamp.

2519. Dr Walsh: Perhaps that was the fault of the education and library board.

2520. Mr McCausland: There was mention that people from the Protestant community work for the CCMS. However, how many people from the Protestant community sit on the boards of governors of Catholic maintained schools?

2521. Dr Walsh: I do not know whether we can answer that question. If the Department of Education suggested a person for the board of one of our schools who was not of our faith but who was fully in tune with the ethos of the school and who was clearly a good educationalist, we would have no problem.

2522. Dr Brady: That question could be answered in the Committee’s session with the CCMS.

2523. Dr McKeown: I have worked with people from the Protestant and unionist community who were passionate members of boards of governors; that is my experience, and I am sure that it applies in other schools.

2524. Mr McCausland: It would be useful to know.

2525. Secondly, you said that if too many councillors were members of the board of the ESA, non-educational issues could be introduced and people could follow political priorities. No one in Northern Ireland is non-political; I have never found such a person. Everyone comes with some political agenda, whether they sit on a board as a politician or as a representative of some other sector. What sort of political issues do you see people pursuing? I find that difficult to envisage.

2526. Dr McKeown: A major element is the planning of the schools estate — the development of new schools and amalgamations. We all have agendas. Inevitably, the agenda of a politician is to be elected, which is a very real part of the important role that political representatives play. I hope that decisions are taken that are not in the interests of people who depend on votes or who want to play to the tune of particular local groups — and I hope that that is the case within the CCMS. Our broad point is that we should ensure that pure, non-election-based agendas are always the dominant ones.

2527. Mr McCausland: If I picked you up right, you are saying that you saw people pursuing political priorities and agendas on estate planning. Can you fill that out a bit more?

2528. Dr McKeown: As someone who was never in the Belfast Education and Library Board (BELB), Balmoral High School springs to mind as an example of when a school is put in a place where it is not needed in the long term. We are simply saying that it is important to ensure that the big picture is always kept in mind, not just the picture for the next four or five years.

2529. Mr McCausland: Should the councillors on the board of the ESA reflect the political community? Likewise, should the other members on the board reflect the composition of the wider community?

2530. Dr McKeown: How representatives are picked will be a matter for the Assembly — the d’Hondt system seems to be valid everywhere. We are also aware that the Education Bill, and certainly its associated documentation, talks about local committees. The last thing that we want is a Balkanisation of education due to the predominance of one community in particular areas. We are looking for a system that will serve the common good. Democracy has to be exercised on the ground. However, we know from our society that there is a danger of Balkanisation, which we want to avoid.

2531. Mr McCausland: There was mention in passing to the current obligation to encourage and facilitate the Irish-medium and integrated sectors. What is your view on equality across the education sectors? Should it not be the responsibility of the state to encourage and facilitate all sectors, rather than giving what might be perceived as special attention to two sectors?

2532. Dr McKeown: In 1989, the Irish-medium sector was miniscule and the integrated sector was also small. At that time, it was right to ensure that such small sectors were given encouragement. Whether such encouragement is required to the same extent 20 years on is another thing. John Gordon was saying that at least those two sectors are recognised on the face of legislation — the end of the CCMS will mean that there is no recognition of the Catholic-maintained sector anywhere on the face of legislation.

2533. Dr Brady: In our presentation, we made clear our respect for diversity, and we said that that should be reflected in legislation and provision.

2534. Mr McCausland: If one goes down the road of saying that all sectors should be treated on the basis of equality, then giving a particular commitment to facilitate and encourage one sector will draw a difference. It would be helpful to ascertain views on that from the various people who give evidence to us on the Bill. Do you favour a more general commitment that the state should be responsible for encouraging and facilitating all sectors?

2535. Dr McKeown: I talked to the transferors at the meeting on Monday. They are concerned about how they can play an important role in developing the current ethos of the schools in which they are heavily involved and to which they have made a huge commitment. Some will regard education supply as being divided, but we have produced a system that is, in global terms, good in many ways. The devolution to, and subsequent strength of, particular sectors is a source of strength, rather than being something of which we should rid ourselves.

2536. Miss McIlveen: Having listened carefully to what you have said and having read your submission, my impression is that you feel under threat from the ESA. What discussions have you had with the Department about your concerns and what was its response?

2537. Dr Walsh: For the past number of years, there has been ongoing communication with senior officials in the Department and we raised our concerns, which focus on employment issues. The Department’s legal advisers gave their opinion; our adviser, Mr Gordon, also has a view, and, as was strongly hinted, the Governing Bodies Association also brought an adviser to the Committee.

2538. Having listened to today’s discussion, legal matters and the interpretation of law are becoming core issues. Is the Committee thinking about bringing some of the lawyers together, rather than hearing one view and then another? Perhaps the lawyers could tease out the legal issues in the presence of the Committee — is that too much to ask? Perhaps some members are lawyers.

2539. The Chairperson: I do not want to be a referee at that meeting.

2540. Mr McCausland: It would be an expensive meeting.

2541. Dr Walsh: We would ask Mr Gordon not to charge a fee.

2542. The Chairperson: Is that the basis on which he is here today? Perhaps I should not ask such questions.

2543. Miss McIlveen: We could speak all day about ethos, and so forth; but, as someone who does not come from the same faith, I find it difficult to understand its importance. However, let us consider other models, particularly in Scotland, where schools are owned by the state but have maintained their Catholic faith and ethos. Have you spoken to your counterparts there or in other jurisdictions?

2544. Sister Woulfe: Yes.

2545. Miss McIlveen: Will you elaborate?

2546. Dr McKeown: We meet the Scottish Catholic Education Service and their counterparts in England and Wales every year. In addition, we are part of a much bigger network of providers of Catholic schools throughout Europe. We are involved in ongoing dialogue, not only to maintain our existing system but to determine the best practical ways forward. The Scottish model provides one perspective, and our submission reflects that the right of minority groups of schools to continue is guaranteed in legislation in various parts of these islands. We want to ensure that that continues to be the case here, because we wish to serve the common good, and the examination results that we produce demonstrate that we are doing so.

2547. Miss McIlveen: From your written submission and what you have said today, I get the impression that you simply want to hold on to what you have and perhaps gain a bit more if you can during the period of transition, rather than being more progressive and considering what might be better for the wider Northern Ireland.

2548. Sister Woulfe: With respect, Miss McIlveen, your comment misses the point. The issue is one of a commitment to providing education in Northern Ireland for all young people. However, there is also the recognition and commitment to offer options within that provision. That is part of the diversity. For some people, their vision of education contains certain nuances. People want to bring up their children in a particular cultural environment, and for many, that has a religious dimension, whereas for others it does not. I am thinking not only of Northern Ireland, but of Europe when I say that. We all recognise that we are living in a time of huge and rapid transition on this island.

2549. It is not about grabbing what one can, so to speak; it is about offering something for the common good in schools that promote an ethos with a particular vision of, and purpose in, life. These schools are open to all, not just to children whose families are from the Catholic tradition. They are open to anyone who wishes to participate in them. It is also open to participating in communities of learning, which are very much part of the emerging context in this part of the island.

2550. You asked whether we have studied what is happening in Catholic schools in other parts of the world. We have. You mentioned the Scottish model, which arose from early twentieth-century legislation. In recent times, there has been significant legislation in England and Wales. Furthermore, legislators in France, Belgium, Holland, Spain and Italy have worked on the matter, and, as well as having state systems, those countries have state-funded diverse education systems.

2551. The place of religion in those countries varies according to the jurisdiction. However, a religious ethos is not just founded on the faith dimension, nor is it just about the period of worship; it informs how things, such as discipline, are done. There is a dialogue between faith and culture; it is not about indoctrination, because education is fundamentally not about indoctrination; it is about enabling people to be critical thinkers at an appropriate age. For example, four-year olds are not critical thinkers in the same way as 24-year olds.

2552. There are different forms of education, and a one-size-fits-all system would do nothing for society. In any kind of democracy, one must allow for diverse voices, and that is partly why we are here. Although we represent Catholic interests, we do not deny the value of other interests as education providers — we endorse them. We mentioned the controlled sector, the Irish-medium sector, the integrated sector and the transferors, and we acknowledge the value of them all. In some ways, we recognise the value of them working alone; however, in other ways, we see the value of them working together, and that is happening. That is why support is required for each sector here, and, in order to ensure that that support is healthy and accountable, it must be integrated in legislation.

2553. The Chairperson: Roman Catholic schools became part of the state system in Scotland in 1926, and that was followed by the Education (Scotland) Act 1980 and so on. In light of that, do you believe that the ethos of those schools was diminished in any way? Further to the point raised by Michelle McIlveen, I am interested in the comments in your submission about explicit legal recognition in other jurisdictions with respect to the critical link between employment and ethos. Do you believe that the ethos of Roman Catholic schools was diminished in any way, because that brings us back to the fundamental issue with which we started — employment fears? Last Thursday in Dungannon, the Cardinal publicly stated his concerns about preserving the ethos of schools.

2554. Sister Woulf: I think you are talking about a question of principle. The Scottish model has worked well.

2555. The Chairperson: That is something that we would be interested to see.

2556. Sister Woulf: I have here ‘Religion, Education & the Law: A Comparative Approach’, which some of you might find interesting.

2557. The Chairperson: I shall delegate Nelson McCausland to read that and report back next week. [Laughter.]

2558. Finally, Cardinal Brady said something about which I wish to ask a question. I apologise to the other witnesses about the way that the session has run on; however, it is vital that we have this discussion. In the Cardinal’s opening remarks, he said that clause 3 is unacceptable. If we were not able to convince the Department and the Minister to make changes that could satisfy the concerns that have been raised today and those that were raised with us last week by the GBA, what would the effect be? It might be difficult to answer that, but given that you said that clause 3 was unacceptable —

2559. Dr Brady: It is unacceptable in its present form.

2560. The Chairperson: Yes.

2561. Dr Brady: Today’s meeting gives us cause for hope that by having genuine listening, as you said, and a profitable and fruitful exchange of views, we will arrive at a situation in which the legislation is acceptable. That is the point of the exercise, but we will cross that bridge when we come to it.

2562. The Chairperson: I thank you and your delegation, Cardinal. You are welcome to stay while we hear from the representatives of the Council for Catholic Maintained Schools (CCMS).

2563. Dr Brady: I thank you and the Committee for listening genuinely.

2564. The Chairperson: If members agree, I propose that, because of time constraints, we postpone the presentation from the departmental officials, if they will be kind enough to accede to that request. It is not that I am putting them in the sin bin — I am very conscious of that. We are also due to have a very important presentation from the Education and Training Inspectorate.

2565. Mr O’Dowd: I am conscious that the media are interested in the Department’s presentation. Is it possible, if the officials’ attendance is to be postponed, to make the relevant documents public?

2566. The Chairperson: I meant to say to the Cardinal’s delegation before they left the table that we have a departmental response to their submission and that we will make that available to both delegations and the press, because it is now in the public domain. Are members content with course of action?

Members indicated assent.

2567. The Chairperson: I apologise to the departmental officials about that. I welcome Bishop McAreavey, Mr Donal Flanagan and his team. We are looking forward to a soft touch from the Council for Catholic Maintained Schools (CCMS). You have been at the centre of some jesting this morning, but I hope that it was all taken in good humour. There is a great deal of commonality on many of the issues that have been raised. I ask you to make your presentation, after which members will have an opportunity to ask questions.

2568. Most Reverend John McAreavey, Bishop of Dromore (Council for Catholic Maintained Schools): Thank you, Chairperson. We appreciate having the opportunity to address the Committee, and we hope that we will be able to bring some clarity to the issues that have already been discussed this morning.

2569. I will introduce the members of our delegation. Mr Donal Flanagan is the chief executive of CCMS; Mr Jim Clarke is the deputy chief executive, and Ms La’Verne Montgomery is the head of human resources and corporate services.

2570. It is the case that we are in broad agreement with the views expressed by the trustees, both in their written submission and oral evidence. The views of the CCMS come from more direct hands-on experience than that of bishops or trustees, who, in the nature of things, are a little bit more removed from the classroom and day-to-day administration of schools. It is from that experience that our contribution will be made.

2571. My colleagues, as you probably know, or will discover, are well able to speak for themselves. Whether they take a gentle touch or not, as a trustee and chair of the council of the CCMS, I think that they have acted over the years as they believed necessary and appropriate. By and large, that has been through influence and in trying to be supportive.

2572. Of course, as with any organisation, there were times and situations in which fairly decisive action was judged necessary. History will show that such actions were taken for the benefit of schools, teachers and pupils. I will hand over to Jim Clarke, who will make the main presentation.

2573. Mr Jim Clarke (Council for Catholic Maintained Schools): As a regional body, the CCMS agrees with the RPA proposals and agrees that they have the potential to deliver a more coherent and efficient support and administrative framework for education. However, centralised administration should not mean centralised control.

2574. The Bill is incomplete and lacks clarity. Those facts make it difficult for the CCMS to develop a full understanding of the intentions and implications at this time. At present, we do not have sight of the second Bill. Therefore, proposals on matters such as accountable autonomy, area-based planning and governance are not available to us. Members will have noted from the previous conversation that much of the debate is about how accountable autonomy will look and how it will operate.

2575. Furthermore, we are confused about the Bill’s lack of clarity on employment, the selection of community governors and the roles and responsibilities of sectoral support bodies. The CCMS believes that the purpose of schools should be to provide a high-quality education in which parents and pupils can have confidence. It should be an education system that is clearly linked to Northern Ireland’s emerging economy and changing society. In order to ensure that that happens, all sectors should have access to the range of supports that they need, bearing in mind — as Mr Poots might remind us — the costs.

2576. I will focus on three main areas: the need for clarity on the roles of the education and skills authority and boards of governors in the employment of teachers; the importance of the need for clarity on the roles and responsibilities of sectoral support bodies, and their relationship to the ESA and schools’ boards of governors; and, the critical area of raising standards. We are happy to answer questions on other aspects of our evidence.

2577. The first issue is the role of the ESA and boards of governors in the employment of teachers. The council is anxious to secure that there is clarity in the legislation and associated guidance in order to ensure equality, whereby each sector must provide schools that reflect parents’ desire for a particular educational ethos — be it Catholic, other faith-based, integrated, secular or Irish-medium. At present, there is confusion in the language of the Bill. References to the “employing authority" or “employer" seem to relate only to ESA’s role. Indeed, those terms are almost interchangeable in the Bill.

2578. There is no clear statement on the roles that will be discharged by boards of governors, and there is no umbrella terminology to describe what those roles might be. That omission is exacerbated by the lack of detail on the meaning of accountable autonomy and on how that concept will function. It is important that schools appoint teachers — particularly leaders — who have a commitment to the ethos regardless of their own background, in order to achieve and maintain high standards.

2579. Boards of governors must have significant influence over the appointment and management of staff. We have been told that the ESA will be the de jure employer or employing authority whereas boards of governors will be the de facto employer on all practical matters. Those roles must be clarified and confirmed in legislation or in guidance.

2580. The CCMS regards accountable autonomy as a significant opportunity for all schools to have the potential to access a more extensive range of responsibilities than those that are available under the current voluntary principle. However, that voluntary principle is not available to all schools. We believe that schools should have the potential to aspire to, or earn, that greater level of autonomy, and accountability aspects must be reflected in that. It should empower with a view to, primarily, raising standards rather than constraining, but we need detail on how that issue might operate.

2581. It is important that there is equality in the proposals. The CCMS believes that the Catholic sector and the controlled sector should have the same legal protections that are available to the integrated and Irish-medium sectors, as was suggested in the outcomes of the working group on establishing a culture of tolerance. The Catholic sector is not asking for anything that should not be available to other sectors.

2582. CCMS believes that all sectors should have access to a support body with a range of functions that are consistent with the needs and responsibilities of the sector. In the case of the Catholic sector, those are well outlined in policy paper 21, with the exception of the role of raising standards, which I will refer to later. Those responsibilities, in addition to the role of raising standards, include: developing ethos; an advocacy role on behalf of the sector; clarity on the role of school owners in the planning and provision of schools under an area-based planning process, managed, after the second Bill has been implemented, by the ESA acting as a neutral body; and the supporting of schools and the appointment of teachers, particularly at leadership levels.

2583. All those functions are based on ensuring the effectiveness of every school in the sector, imbued by the ethos of that sector, recognised in the schemes of management and employment. The experience of the CCMS has been that ethos adds value, and improvement in the sector appears to support that position. We believe that sectoral support is valuable, it should be available to every sector, and its functions and relationships should be explicit in the Bill. The sectoral support body exists to assist schools. The Catholic sector also wishes that all of its schools be recognised as Catholic, grant-aided schools. That issue will be addressed in the second Bill.

2584. The final issue is that of raising standards. Every child is entitled to a high quality education at a good school. Raising standards needs to be an explicit role of the ESA, the sectoral body and the individual school. However, only the schools can deliver directly on the raising of standards. Clause 34 of the Bill needs to include reference to the sectoral support body as well as to the ESA in respect of raising standards and to clarify the respective roles and relationships of each of those bodies on the important issue of raising standards.

2585. The CCMS was created primarily because trustees and Government had concerns about standards. We know that standards have improved, and it is important to analyse how that came about. Some of the characteristics of that change include: the importance of an agreed and shared ethos; the value of employing people committed to that ethos; the value of the ethos in addressing underperformance and aspiring to high standards, and the importance of support which understands and promotes the ethos. The experience of the CCMS should give confidence to other sectors that, with the proper conditions in place, standards can be raised.

2586. CCMS will be gone, but it wants the new arrangements to work effectively. To ensure that they do, there must be: an understanding of the objectives of the proposed changes, particularly with respect to improving educational outcomes; an acceptance of the diversities of pluralist society and of the need to provide for those equally; a recognition of the importance of ethos and the added value that it brings to each sector; a clarity in legislation and guidance on the roles of boards of governors in the employment of teachers and the nature and functioning of accountable autonomy; and a recognition of the role of school owners in the framing of schemes of management and employment, the selection of community governors committed to the ethos of the school and the planning and provision of schools.

2587. Governance arrangements should be effective and competent to do the job and be free from politicisation. Thank you, Chairperson.

2588. The Chairperson: We always seem to return to either clause 8 or clause 3, which are fundamental to those concerned. With respect to the point I made earlier to the commission delegation on clause 8, if there were to be built in some appeal or regulation of control, do you think it would go any way towards addressing concerns over employment schemes and schemes of management?

2589. Mr Donal Flanagan (Chief Executive, Council for Catholic Maintained Schools): When this exercise started, our first meeting was with Angela Smith and we explained the issues to her. She said that it was not beyond the wit of man to create a difference between an employing authority as employers de jure and a board of governors as employers de facto. Jim has said that there is not enough clarity in the legislation in relation to the role of boards of governors. If that role were clarified, we might make some progress.

2590. The legislation contains a requirement for the ESA to approve the scheme of management and the scheme of employment. That is not a difficulty. To create a difference between the employer and the employing authority, we can give the ESA a statutory role to support the board of governors in the exercise of its function as employer.

2591. That would provide a degree of consistency and accountability throughout the system; that is what I call a “light touch". In other words, the ESA would not have to control it, but it could advise on how it works. If people followed that advice, they will not get into trouble; if people wilfully ignore that advice, they should not be indemnified. There is an opportunity to create a difference between an employing authority and an employer de jure.

2592. The Chairperson: Are you aware of any examples of similar practices that could be used in the education sector?

2593. Mr Flanagan: The closest to it is the example that exists in the CCMS; we are the lead employer, but we do not exercise that with a heavy hand. Boards of governors are responsible for the employment of teachers, and they exercise that role by using advice that is given to them by the CCMS. We have seldom inhibited a board of governors from exercising its will; we have done so only when people were acting in a silly manner.

2594. With a minor extension to the CCMS’s role, we could create what the voluntary grammar, the Catholic maintained, the integrated and Irish-medium and, I expect, many in the controlled sector have and want in future.

2595. Ms La’Verne Montgomery (Council for Catholic Maintained Schools): Schedules 7 and 8 are minor amendments to current legislation, including the removal of schedule 2 of the Education (Northern Ireland) Order 1998. That relates to the staff of controlled and Catholic maintained schools with delegated budgets and covers discipline and grievance under a board of governors control, the right to suspend employees and provisions in relation to dismissals. We presume that those functions will be provided for elsewhere; as yet, however, they are not, and that is our concern. The omission may imply a change in the authority of boards of governors in respect of discipline, grievance and dismissal. In effect, that would remove those employer functions from boards of governors and, presumably, pass them to the ESA. There is a need to clarify those points, generally and particularly, in relation to any model in a scheme of management or scheme of employment.

2596. The Chairperson: That is helpful in view of the concern that exists about the revisions of employment schemes. I am sure that the thought will send shudders through the maintained sector, but if I were a teacher in a maintained school and was dismissed, against whom would I take a grievance? Would I take it against the CCMS or the Department? That will provide clarity on concerns that are being raised all the time. If the CCMS is the employer — as is the case at present — but the Department has responsibilities, on whose door would I knock if I wanted to take someone to court and get my compensation?

2597. Mr Flanagan: If you were appointed as a teacher in a CCMS school, you would be a good teacher, and the likelihood of your being dismissed would be slim. However, if you were dismissed for doing something that was not correct, your representation would be against the CCMS.

2598. Ms Montgomery: It would be against the board of governors in the first instance; the CCMS would be co-joined.

2599. The Chairperson: How would that change if the CCMS functions were transferred to the ESA? That is the nub of the matter.

2600. Mr Flanagan: The difference is that we do not know how the ESA will exercise its employing authority; there is no clarity on the role of boards of governors. We have clarity, evidence of good practice, and evidence of delegating considerable amounts of autonomy to local level.

2601. We have heard about accountable autonomy, but we have not seen it; we do not know how it will work, and it has never been described to me in any discussion with anyone.

2602. The Chairperson: Trevor said that, from his observation, he can see no problem. However, clause 3 states that:

“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."

2603. Therefore if I were employed by the ESA and a problem arose — taking La’Verne’s comments about clause 7 into account — I would knock on the door of the ESA. I would not take a board of governors to court; I would take the ESA to court.

2604. Mr Flanagan: The ESA will be a statutory body whose make-up will be largely political. Equally, we can work on the basis that the make-up of that statutory body will not necessarily support any one sector or be committed to any one ethos. The CCMS has been appointed as a statutory body to support the maintenance and standards of Catholic maintained schools, so there are people in that organisation who are sensitive and committed to working towards the promotion of the Catholic ethos. They are not all from the Catholic denomination.

2605. The difficulty is that we do not know how the ESA will interpret its role as the employing authority; if the ESA were given that authority, it would be a matter for it to interpret. There is no clarity on how it might wish to do that. That is our concern and our fear.

2606. The ESA is not necessarily a problem, but the ESA operating in a neutral manner would be a problem.

2607. Mr J Clarke: The issue is one of clarity — and clause 3 lacks clarity. Its title is:

“ESA to employ all staff of grant-aided schools"

2608. and it also refers to the ESA as the employer. It may not be legally correct, but, in common parlance, the roles that boards of governors play in the Catholic maintained sector is that of employer while the CCMS is the employing authority. If the ESA were both employing authority and employer, what will the role of boards of governors be and how will that be affected by the operation of accountable autonomy? Accountable autonomy is an important driver in raising standards. We want boards of governors to show the qualities, enthusiasm and commitment to take authority because they want to do better for their schools.

2609. The Chairperson: That is useful, but I have a query. You raised concerns, as I did earlier, about community governors, will you expand on those concerns? In paragraph 6.2 of your submission you refer to persons living and working in the local community and state that:

“Council believes it may be worth questioning if this is still a realistic understanding".

2610. Mr Flanagan: There are two issues. One is the process of selection, to which Bishop Walsh referred this morning. That should be done “in consultation with", and despite what Nelson may have seen or heard at the Belfast board, that list of names was produced after a great deal of preparation and discussion with the relevant officers from both bodies; those names were selected “in consultation with". That is an issue about process. If the ESA appoints people “in consultation with", I do not see any concerns for the future.

2611. Commitment is an issue. A community governor would have to be sensitive to, comfortable with, and committed to the promotion of the Catholic ethos in a Catholic school. It would be a very disruptive board of governors if individuals disagreed openly about something that is so important to the running of a school.

2612. The Chairperson: Ethos is not included in the definition of “community"; the Bill refers to someone living and working in the local community. Are we clear about what is meant by “community"?

2613. People have different interpretations and definitions of community. Do you not see that that could cause problems?

2614. Mr J Clarke: In our submission we asked for clarity on that matter because of the differing circumstances of our schools — about one third of our schools are now recognised as extended schools. We see education linked to other public services, particularly health and social services and community development. Those issues should be reflected in schools to recognise an area’s circumstances. Strategies and people should be in place who understand how relationships and links can be developed to enhance education generally and the community in particular.

2615. Mr O’Dowd: Bishop McAreavey, you and your colleagues are very welcome. Today’s debate has revolved around the role of boards of governors, the employing authority and the employment rights of boards of governors. Donal, you said that the employing authority is the CCMS. If it came to your attention as the employing authority that the employment practices of a board of governors were outside the law, would you act?

2616. Mr Flanagan: Yes.

2617. Mr O’Dowd: Why, then, would you not expect the ESA to act in future if it came to its attention that a board of governors was acting outside the law?

2618. Mr Flanagan: If the ESA were the employing authority, I would expect it to act. If it were the body that provided statutory advice to schools, it would have to ask the board of governors to account for the breach of statutory advice but not necessarily employment law. There is a slight difference. Either way, however, intervention is needed when people act inappropriately or in a wilful manner.

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

2619. Mr O’Dowd: There was a wee bit of noise, so I am not sure whether we are contradicting each other. Are we?

2620. Mr Flanagan: No. We started this process with a discussion about the employing authority and the employer; at that stage, the Minister said that it was not beyond the wit of man to have clear blue water between them. If the role of governors was clarified and determined, we would be having a slightly different argument about the interface between the ESA as the employing authority and the board of governors as the employer. We do not have that clarity and division between the two. In the absence of that, it is better for the board of governors to be the employer than it would be for the ESA.

2621. Mr O’Dowd: Under your proposals, there would be several hundred employing authorities rather than one, because each board of governors would be an employing authority. That would be a logistical nightmare.

2622. I would like to ask about representation at a tribunal or in a court of law in relation to employment matters. I understand that the CCMS carries out the ethos, which is fair enough. However, a barrister before a tribunal — regardless of their ethos — advocates the law and defends a case based on law, not on ethos: no legal defence can be based on ethos.

2623. Mr Flanagan: There are two issues. One is about the plethora of schools that we would have, but we have that at the minute: there are 1,300 schools and 1,300 boards of governors. Many of them do extremely good jobs in raising standards and in ensuring and supporting the welfare of children, so why not take the next step and give them responsibility for the employing authority role? Advice and support would be available to them from the ESA.

2624. You must remember that this process was about mopping up and tying up administration, not changing the system.

2625. Mr O’Dowd: I disagree.

2626. Mr Flanagan: The review of public administration (RPA) came about to reduce the amount of administration in education — not necessarily to threaten anybody or to get rid of anything that was good but to provide a more coherent and efficient way of working. We can do that, and the CCMS has demonstrated — through its practice over the past 20 years — that it is capable of handing more responsibilities to boards of governors.

2627. It is not the Assembly, the Education Committee, the Department of Education, Donal Flanagan or anybody else who raises standards: schools raise standards; and unless you bring decision making down to that level, whether with finance or the employment of staff, you will not raise standards. Some schools are extremely good at exercising that degree of autonomy, and many others are capable of it, and some schools would need more support than others. However, the ESA, which will have a statutory duty to provide advice and guidance on a range of issues, will have the authority to intervene.

2628. I may give the impression of having something other than a light touch; however, I do not have the authority to go into a school or to direct anybody to do anything. I use influence, advice and guidance. By exercising their responsibilities based on that advice and guidance, boards of governors have demonstrated that they do not act wilfully; therefore, I can indemnify and defend them in any court of law. As La‘Verne said, when a barrister joins us on a particular case, he co-joins the board of governors and the CCMS. That is what would happen in relation to the ESA.

2629. Mr O’Dowd: Yes; but a barrister defends you on the basis of the law, not on the basis of an ethos. I admire the work of the CCMS; however, why does it never delegate employment authority to the boards of governors?

2630. Mr Flanagan: It is not within the legislation for us to do that.

2631. Mr O’Dowd: I do not remember it being lobbied for either. [Laughter.]

2632. Mr Flanagan: We have argued for it. We embraced the review of public administration because it would allow us to go to the next stage and delegate responsibility to the boards of governors. We have talked about the strength of governors and how they are selected, and we firmly believe that good schools have good governors. If you pick good governors who can manage properly, you will have a good school. Therefore give governors more power and responsibility to allow them to do their job.

2633. The Deputy Chairperson: You talked about delegation, which brings us back to the question of autonomy. We have three different forms of terminology: maximised autonomy; maximised supported autonomy; and accountable autonomy. Are we talking about the same thing?

2634. Mr J Clarke: I hope so. As you say, the language has changed. I reiterate my earlier point: what we need is clarity so that we know precisely what we mean when we talk about the employing authority role of the ESA, the role that boards of governors will have as employers, and the role that, over time, might be devolved to boards of governors, depending on the desire and capability of a board. If you encourage people to take responsibility and make them accountable, they will do a better job. In answer to John’s question, had accountable autonomy — in whatever terminology — been around, several boards of governors and several clusters of schools in the maintained sector could have operated a devolved model. We would like to encourage that.

2635. The Deputy Chairperson: Donal is right. We talked about the ESA being a major part of the RPA and the streamlining of administration, and we were told that savings of £20 million would be directed into front-line services. That is now in doubt. As Mrs Bradley said, the Department’s emphasis has changed and is now on raising standards, which was the CCMS’s raison d’être when it started out. You have been successful in that and you suggest that the sectoral body that replaces you should continue to have a role in raising standards. Presumably the ESA will retain its role in raising standards. What degree and what form of co-operation will work between a sectoral body with some responsibility for raising standards and the ESA?

2636. Mr J Clarke: That requires clarity. The ESA is the body responsible for raising standards generally through its support and challenge functions. The challenge function has not been played, except by the CCMS; we played it with a light touch and largely outside any legislative role that we have had. However, we have done that because, under our ethos, every child is entitled to a good education. When we face difficulties, we have, metaphorically, wrapped the arms of that ethos around the situation and told people that they have a responsibility to the children in their care. We do not think that that will change.

2637. I do not want to introduce differentials, but the education and library boards have said that it is not their role to challenge; however, we believe that it is everyone’s role to challenge and that that is implicit in raising standards. If there has been a differential, the CCMS has challenged schools, and we have used that challenge role to try and raise standards. Some other sectors might not have done that.

2638. It must be asked whether the neutral position or that of influence based on ethos has been more successful. Every sector should have that backup, and the ESA should be able to call on backup from a sectoral support body to support it in finding a way into a school or board of governors that a neutral external body simply might not be able to do. That is good for value for money if it achieves better outcomes for children and for education services.

2639. Mr Flanagan: Earlier, we talked about having good governors in schools. If, for example, the problem at a school is the governors, the sectoral support body can have huge influence through the trustees’ nominations, through the ESA’s nomination or through community nominations to begin to change a board of governors. We have effected such change on a number of occasions in the past 20 years. We have moved people out of boards of governors and put new people on boards midstream. That is one of the great advantages that a sectoral support body has, because it will have the ear of the body of the trustees who have the ownership role at schools.

(The Chairperson [Mr Storey] in the Chair)

2640. Mr McCausland: The CCMS is a statutory body. How is its membership constituted?

2641. Mr Flanagan: It is a constituted body of 36 members, 20 of whom are nominated by the trustees. Of those 20, 10 are directly nominated by the trustees and the remaining 10 are selected from people who have a contribution to make to education — academics, heads of institutions, business people, former assistant secretaries at the Department of Education or prominent people in the Protestant community.

2642. The Department of Education selects eight people by public advertisement. Four parent governors are selected on the basis that they are selected at local level — one cannot be a parent governor on the CCMS if one has not been selected at local level. A list of names is submitted from each of the dioceses. Similarly, people elected as teacher representatives in their own schools can come forward for selection to the CCMS.

2643. Mr McCausland: Therefore, 20 appointments come through the trustees, eight come through the Department, four are parents and four are teachers.

2644. Mr Flanagan: That is correct.

2645. Mr McCausland: Earlier, a question was asked about the boards of governors at Catholic-maintained schools. How many people from the Protestant community are on boards of governors in schools in Northern Ireland?

2646. Mr Flanagan: As you might expect, I do not have that information; nor do we gather it. We have anecdotal evidence. For instance, a school, which I cannot name, had lots of difficulties, and, as part of our intervention strategy, we created space — for want of a better word — on the board of governors. I went to a person who was not from the Catholic denomination but who has tremendous educational credibility. He went on to that board of governors and his influence was fundamental to making differences to the school. I have done that on a number of occasions. I select people on the basis that they are able to do a particular job.

2647. Equally, there are Catholic schools in which a significant number of children from other denominations are present, and people of those denominations have opportunities, through parental representation, to be members of that board of governors. I cannot give any exact detail, but I can say that through departmental representation, education and library board representation, trustee representation and parent representation, a significant number of people from other denominations sit on the boards of governors of Catholic schools.

2648. Mr McCausland: I appreciate that you do not have exact figures, but most people would expect you to have some sense of the general picture: would it be 1%, 5%, 50%; what would be the overall figure?

2649. Mr Flanagan: I would say that it is less than 5%.

2650. Mr McCausland: Is it much less than 5% — less than 5% could be one in 1,000; or it might be 0·1% — can you estimate?

2651. Mr Flanagan: It is probably more than 1%, and less than 5%. I would need to do a lot of work and survey the boards of governors of all of our schools to answer that. However, there is no exclusion on people who are sensitive to and committed to the promotion of ethos. The acceptance of office allows people to say that they are committed to and will work within the policies of the Catholic school.

2652. Mr McCausland: I am asking this question because people in the Protestant community do not have a detailed understanding of the internal workings of the Catholic sector. Therefore, I do not wish to be in any way problematic, it is simply to get an understanding of the prevailing situation.

2653. Mrs O’Neill: You are obviously committed to equality of opportunity in the Catholic employment sector. One issue that you raised in your submission centres on maintaining ethos, which has been rehearsed many times today. In particular, you are seeking assurances about the Department’s powers — in clause 5(2) and clause 12 — as regards fair employment legislation; for example, whether it would have the power to make change. Any change to fair-employment legislation can only be taken forward through OFMDFM; it would not be in the remit of the Department of Education.

2654. The Department’s paper states that the provisions give it very limited powers to modify employment law to facilitate the operation of the employment arrangements in the Bill. It has suggested also that it is not aware of any need to modify employment law in that regard, and it has no plans to do so. Is that sufficient reassurance for you; or do you want to see something stronger?

2655. Ms Montgomery: That is very helpful. Obviously, it is not in the Bill as currently drafted. Our concern about the exemption is more to do with administration in relation to appointments. We have 500 appointments a year, and I can count the number of tribunals that would be lodged in one year on the fingers of one hand. We are concerned that if the exemption were removed, it may bring an influx of tribunals, not necessarily on merit — that is a reality of life.

2656. Our position is that we advocate very strongly the retention of the exemption in relation to teacher appointments.

2657. Mr Lunn: I wanted to make the same point. I am perfectly happy with the response, so I will not trouble you with a question.

2658. Mr D Bradley: Are there teachers employed in Catholic schools who do not subscribe to the Catholic faith; who are not Catholics?

2659. Mr Flanagan: Yes.

2660. Ms Montgomery: We do not gather information on people’s religious denomination, but our understanding is that there are people who are not of the Catholic faith.

2661. Mr D Bradley: Are those people in leadership roles as well as in classrooms?

2662. Mr J Clarke: Yes.

2663. Ms Montgomery: Again, that is anecdotal information as opposed to anything that we gather on a formal basis.

2664. The Chairperson: I thought that, given Donal’s recommendation earlier, I was going to be appointed.

2665. Mr Flanagan: I said only if you were good enough. [Laughter.]

2666. Mr McCausland: Does everyone who is appointed have to subscribe to promoting the ethos of the Catholic sector?

2667. Ms Montgomery: We have a Catholic vision, to which all of our schools have effectively signed up, and we make reference to that in our advertisements for appointments, both in the ‘Irish News’ and on our website. Any teacher who applies for a post in a Catholic-maintained school knows exactly what they are signing up to and what the school believes in.

2668. Mr McCausland: If someone were applying in response to an advertisement to be a member of the board of the CCMS, would they have to subscribe to the ethos?

2669. Ms Montgomery: That would be determined by the criteria that the Department of Education sets for governors.

2670. Mr J Clarke: Our point is not just about the Catholic ethos; it is also about the integrated ethos, the Irish-medium ethos and all others. If people commit to an ethos, they will bring value to it. Therefore, it is important to encourage people to understand an ethos so that they can commit to it.

2671. The Chairperson: Paragraph 9.3 of your submission states:

“Council would seek assurance on the standing of such bodies preferably through some formal recognitions in the Bill."

2672. Does that arise due to lack of clarity in the Department’s policy paper 21 or is it due to more fundamental concerns on the role of sectoral support bodies?

2673. Mr J Clarke: The function of policy paper 21 is to describe the main functions of sectoral support bodies; it does not say anything about their legal standing. At the beginning of the process, the given wisdom was that since the ESA would be the administrative arm of education, some of the functions that are currently with the CCMS and other bodies would be brought under the ESA’s influence. However, if sectoral support bodies are to play their role effectively and complement, rather than compete with, the ESA, their functions need to be clarified for themselves, boards of governors and the ESA. Commission members made the important point that there should be some mechanism whereby their voice is heard by boards of governors, especially on matters concerning the improvement of standards in schools.

2674. Mr Flanagan: Bishop Walsh said that if we have such a body, its role and connection with boards of governors should be clearly spelt out or it will begin to disappear.

2675. The Chairperson: I thank you all for taking the time to come to the Committee and endure the marathon that we have had this morning. The meeting has been useful and profitable. As there is a crossover between yourselves and the issues raised by the commission, I hope that you feel that you have had the opportunity to raise your concerns, both in your submission and in oral evidence. We will ensure that you get a copy of the Department’s response. If you have outstanding issues that you want to raise with us, we are quite happy to receive comments from the CCMS.

2676. Dr McAreavey: We appreciate that your task is a very difficult one, and we would be glad to help in any way we can.

25 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill
Mr Edwin Poots

Witnesses:

Mr Chris Stewart
Ms Eve Stewart
Mr John McGrath

Department of Education

2677. The Chairperson: We now move on to the departmental representatives’ presentation. I ask John, Chris and Eve to base their presentation on their response to the issues that the union representatives have raised. We will then move to the issues that were raised by the NICCE and the CCMS at last week’s meeting. As members will recall, we were unable to get to that “rebuttal" due to time constraints. John, you are welcome once again; I hope that you did not have withdrawal symptoms having not been able to participate in last week’s session.

2678. Mr John McGrath (Department of Education): We were deeply disappointed about that.

2679. The Chairperson: I am sure that you were.

2680. Mr McGrath: We were drowning our sorrows all of last Wednesday. [Laughter.]

2681. The Chairperson: Was that not St Patrick’s Day? [Laughter.]

2682. Mr McGrath: Wednesday mornings would not be the same if we were not here.

2683. I propose to make some opening remarks about the evidence given by our trade union colleagues. Chris Stewart will follow that with detailed comments on the paper that we have submitted. We will adopt the same approach in the second session.

2684. I wish to provide clarification on some of the points that came up in this morning’s session and, particularly, in relation to Dominic’s questions. We have made it clear in recent months that the ESA’s primary, if not exclusive, objective is to raise standards. There is also an agenda to produce efficiencies through the centralisation of functions and the reduction of needless bureaucracy.

2685. The Minister has made the objective to raise overall standards and close the gap in standards very explicit, and she has cited particular problems in particular sectors. The main vehicle for achieving that objective will be built around the school improvement policy. That will come in the final version of ‘Every School a Good School’, which is expected to be published shortly. The literacy and numeracy strategy is also linked to the achievement of that objective.

2686. We see the ESA’s role as one of providing help, support and, where necessary, a challenge function. That challenge function will be relevant when there is evidence in the ETI reports that schools are underperforming or could do better. In conjunction with the Inspectorate, the ESA will be responsible for providing that challenge function. We see some of that role as being the same as the role played by the CCMS in the maintained sector in past years. The CCMS had a role in driving up standards in the Catholic-maintained sector, and the statistics for that period provide evidence of that.

2687. As I have said, there is an agenda to produce greater efficiencies. Through recent Assembly Questions, and in comments to the Committee, we have made it clear that there can be no guarantee that savings will automatically go to front line services, because we may well have to meet savings targets. However, if we may have savings targets of between 3% and 4% in the education budget and the ESA is a better vehicle by which to identify and secure those savings, that is still protecting front line services because, if the ESA does not make savings in back-office services, they will have to come out of front line services.

2688. An environment in which we have greater efficiency targets heightens the importance of that objective of the ESA; it does not reduce it, which was the implication of Dominic’s interpretation. It is still a major objective of the ESA to drive out savings. It may well be that a starker environment will be created, and that savings may have to be returned to the centre if some of the prognosis around the overall state of the Northern Ireland block comes to pass in the coming years. It is important to make that point.

2689. The need to drive out savings — particularly from support services — is of no lesser importance. If savings are not made in that area, and a levy of 3% to 3·5% is applied in the future, there will be no areas left from which to make those savings, except from front line services. Therefore, the issue is still about investing in front line services or, as far as possible, protecting front line services. I wanted to make remarks on savings and on standards before Chris deals with the specific details of our trade union colleagues’ evidence.

2690. Mr Chris Stewart (Department of Education): Thank you. First, we very much welcome the opportunity to respond to the points that our trade union colleagues have made. We also welcome the very detailed and thoughtful submissions that they have brought to the Committee: they have clearly invested a great deal of time and effort in closely studying the proposals.

2691. For once, I do not believe that there will be much rebuttal. It is clear from the papers and from the oral evidence given by the trade unions that there is a great deal that we agree on. I will not attempt to deal with all of the issues raised in the trade unions’ papers, but I will concentrate on the main ones. We will be happy to answer any questions, or expand on any of the issues raised.

2692. On the issue of the employment arrangements, the Department welcomes the support offered by trade union colleagues on the proposed role of the ESA as the employing authority for all staff in grant-aided schools. Clearly, there are some aspects of the proposed employment arrangements that we do not agree upon, and I will come to those later. However, we do welcome the overall support for the core arrangements.

2693. In relation to the membership of the ESA, the Minister has noted the views expressed by trade unions on the number and composition of the proposed membership, and the involvement of district councillors. Indeed, similar points have been expressed by Members in recent weeks, and the Minister wants to carefully consider all of those views. However, at present, the Minister remains of the view that a membership of 12 is sufficient for effective leadership and governance. The Minister also feels that the proposal for a majority of members to be district councillors is important to ensure local democratic accountability.

2694. Trade union colleagues have suggested that a proportion of the ESA membership should be reserved for trade union representatives. The present legislation and policy make it clear that membership of the ESA and appointment to that body will primarily be on the principle of merit. Trade union representatives can of course apply for appointment, but I draw the Committee’s attention to the provision in schedule 1, paragraph 5(5), of the Bill, which prevents a member of the ESA from also being an employee of the ESA. However that, in itself, does not prevent trade union representatives from applying for membership. All members will be appointed on the basis of their competence and experience rather than on the basis of any formal representative capacity.

2695. The Minister also notes that formally reserving a proportion of the membership for trade union representatives could give rise to a conflict of interest for those members in management and trade union matters.

2696. On the issue of employment schemes and the role of the submitting authority, a number of points were made in the written and oral presentations about the need for schemes and the administrative burden that those might represent for schools. Also addressed was whether there ought to be scope for schools to tailor those schemes, or whether a single scheme should be imposed on all schools.

2697. The Minister does not agree with the view of trade union colleagues that the requirement for schools to produce schemes is a bureaucratic burden. In fact, the Department views those schemes as an essential element of the employment arrangements in the Bill. The schemes will be in place to ensure that there is clarity on the respective roles and responsibilities of the ESA and boards of governors. In that, it is important to have those schemes in place, and they are in the best interest of education staff. The ESA will produce model schemes, which schools will be free to adopt if they wish to do so. In doing so, those schools can minimise the administrative burden that will be placed upon them.

2698. The responsibility for preparing and submitting schemes will be given to schools, which is in keeping with the policy aim of allowing schools to determine the degree of autonomy that they wish to have on employment matters. In recent weeks, members have heard the views of various stakeholders who have stressed the importance and value of an autonomous role for boards of governors. The Department’s agreement with that position is reflected in the employment arrangements contained in the Bill.

2699. The Minister has told the Committee that she is minded to propose an amendment to the definition of the submitting authority, the effect of which would be to define it, in all cases, as the owners and trustees of the school, but with an option to delegate that function to boards of governors if the owners so wish.

2700. The Minister agrees with the views of trade union colleagues that schools should be responsible for determining the professional development needs of their staff and the advice and support services required to support those needs. At the same time, however, it is important that the ESA has a clear statutory responsibility to ensure that those services are available to schools. That is addressed in clause 13 of the Bill. However, that clause is intentionally flexible in the way in which it has been drafted. It requires the ESA to “provide or secure the provision of" such services. The word “secure" provides for budgets to be delegated to schools, or groups of schools, to provide or procure professional development services themselves. Contrary to a suggestion from one union, the Minister sees little purpose in introducing a charging regime for instances in which the ESA provides such services directly to schools. The Department considers that the administration of a charging system would be a waste of resources.

2701. The Minister does not fully agree with the comments made by trade union colleagues on raising standards, particularly those on clause 34 of the Bill, which outlines the duty of the boards of governors. The Department considers it essential that there are clear responsibilities for raising standards throughout the education system, and the absence of such clarity is recognised as a significant weakness in the current arrangements. It is equally important to ensure that schools co-operate with the ESA in the discharge of its functions. The word “co-operate" was deliberately chosen for the legislation. It is a good description of the sort of relationship that we want, which is one that involves no aggressive challenge, but co-operation, support and challenge where necessary.

2702. The UTU expressed concern that the Bill does not cover early-years learning, nursery schools or special education. That concern illustrates the challenge for any reader in studying such a complex Bill. The Bill must be read alongside the existing legislation, and particular attention must be paid to the amending provisions in the schedules. I am happy to reassure UTU colleagues that their fears are unfounded. The Bill does, in fact, include provisions on early-years services in clause 2(2)(a), although they are not described as such; they are referred to as educational services, which is departmental shorthand.

2703. Equally, nursery schools fall within the definition of primary schools that already exists in the Education and Libraries (Northern Ireland) Order 1986, and that carries forward to the Education Bill. Schedule 7 to the Education Bill contains extensive amendments to the special educational needs and to the Special Educational Needs and Disability (Northern Ireland) Order 2005. The effect of those amendments is to transfer to the ESA all the functions and duties of education and library boards in relation to special education.

2704. The Minister recognises and agrees with the importance of consultation with, and participation by, trade unions on a range of matters. She will wish to consider further whether there is a need for specific legislation to underpin that.

2705. I turn now to faith-based education and to the specific definition of a Catholic-maintained school. In its submission, the UTU questioned the need for that definition in the legislation. The Department previously stated that the Minister views the definition as a temporary measure that will be removed from legislation, either in the first Bill, by amendment, or, failing that, in the second Bill.

2706. However, the Department does not fully agree with the comments of union colleagues on faith-based schools or the diversity of school types in the system. Parents and children have the right to choose to attend a Catholic school, or a school of another type, if they so wish. The Department’s aim, through the RPA, is to have a single system of administration to support a diversity of school types. It is not, and has never been, our aim to reduce the diversity of school types within the system.

2707. Finally, I shall address a point made by an important organisation that was not present today. The forum of nursery school teachers expressed concern about the lack of support and training for nursery school principals and staff. I am happy to reassure trade union colleagues that the duties in clause 13 relate to all grant-aided schools, including nursery schools. I shall pause at this point, and we are happy to take questions.

2708. The Chairperson: Thank you. I wish to follow up on a couple of matters. Given that the Minister is minded to propose an amendment whereby the submitting authority for schools would become the owners, or trustees, of those schools, and given the current arrangements for the controlled sector, in which no body has been established that might own schools within it, is there not a risk that maximised, accountable autonomy will be lost?

2709. Furthermore, when we were discussing the establishment of such a body, concerns were raised that it might be subject to paying VAT. At that time, we were told that we were within days or weeks of receiving a response on that matter from the Treasury. Since then, we have not heard tell of the response, so we do not know the current thinking on the subject. We are concerned that the matter seems to be in abeyance.

2710. Mr C Stewart: I am not aware of whether we have had a formal response from the Treasury, but I will certainly take the matter up with Department of Finance colleagues. Our view on the matter is clear. We wish to ensure that there will be a VAT exemption for any statutory authority involved in education, and we will forcibly convey that point to our Treasury colleagues.

2711. With regard to the first part of your question, it is certainly true that the principle of accountable autonomy would be seriously weakened, or damaged, if we were unable to apply it consistently, and on the basis of equality, to all school types. That is why it is important that we determine where the submitting authority responsibility should lie for controlled schools. In consultation paper 20, we suggested that that responsibility might be assigned to the controlled schools’ ownership body. Alternatively, due to that sector’s unique nature, it might be more appropriate to place the responsibility directly with boards of governors. We will wish to reflect on that idea and to carefully consider what has been said to us in response to the consultation, which is coming to an end.

2712. The Chairperson: In your written submission, you stated that the Minister does not accept that the preparation and operation of employment schemes and, presumably, their ease of management would be a bureaucratic burden. Public bodies that are subject to section 75 of the Northern Ireland Act 1998 are charged with preparing and submitting equality schemes, in light of model schemes of guidance. The guidance for section 75 duties runs to 153 pages. What assurances can you give boards of governors about the size of the bureaucratic task facing them?

2713. Mr C Stewart: The arrangements that we have proposed are sufficiently flexible for a board of governors to decide what priority, and how much effort and resource, it wishes to expend on developing a scheme. We will ensure that a range of model schemes are available for different types of schools, so that, wherever possible, a school will be able to lift a model scheme off the shelf and adopt it as it stands. If that is the case, the burden becomes vanishingly small.

2714. On the other hand, we have heard from a number of stakeholders — and this point was emphasised in last week’s evidence session — that some schools and sectors do not regard section 75 obligations as a burden: they regard as absolutely essential to the maintenance of their ethos that they have the opportunity to invest time and resources in designing their employment arrangements.

2715. The proposals in the Bill would allow for that. Therefore, no school will be compelled to expend effort and resources in developing an employment scheme if it does not want to, but the opportunity will be there for those schools that do.

2716. The Chairperson: You mentioned a number of models for the different school types. What differences would there be between the models for the different school sectors? As was said earlier, we are trying to get a more unified approach to the employment of staff in our 1,200 schools.

2717. Mr C Stewart: The differences may be less than some people fear, and there is strong agreement on that between us and our trade union colleagues. We have made it clear that every employment scheme must comply with education employment law. We will also expect every employment scheme to reflect best practice on employment matters. Best practice is best practice, so we would not expect to see a significant variation on that between schemes from different schools or different sectors.

2718. There is perhaps scope to tailor schemes a little more precisely on issues of ethos. That remains to be seen, but I do not think that that will form the majority of a scheme’s content; it might be a small part of the scheme.

2719. Mr D Bradley: In regard to savings, Gavin Boyd told the Committee at a previous meeting that the £20 million in savings was over and above the education budget and that it was going directly to front-line services. The situation has changed. I accept the point that the money will now be used to protect front-line services, but it is not added icing on the cake as was suggested to us at the beginning.

2720. Mr McGrath: The savings in the current budget period have already been allocated to go back into front-line services. The conversations recently have been about future savings that the ESA will generate. We are simply making the point that we may not always be able to guarantee that those savings will go into front-line services instead of going against savings targets. In the current budget period, some of that £20 million has already been allocated to front-line services.

2721. Mr D Bradley: I take your point, but the scenario is different to the one with which we were first presented.

2722. The Committee received a letter from school principals that I quoted from at a previous meeting. At that meeting, I asked you what empirical evidence there is to suggest that the ESA would be successful in raising standards. You answered that the ESA will be based on the model of the CCMS, which was successful, so it logically followed the ESA would be successful.

2723. Mr McGrath: I do not think that we made it sound like an automatic process. There is an issue about standards, and we have enough evidence to say that there are issues that we need to tackle. The current structure does not give an even focus across the different sectors.

2724. To again reflect what trade union colleagues have said, the bulk of evidence shows that standards are improved by improving the quality of teaching. That is how the model that we are talking about facilitates an approach to professional development in which schools commission what they want instead of taking what they get. That is how standards will be improved.

2725. The issue is not just about the ESA per se; it is also about the approach to accountable autonomy, a better approach to professional development and an element of challenge when institutions are seen not to be performing as well as they should be and when the opportunities for kids are not what they should be.

2726. Mr D Bradley: OK. You heard the evidence from the representatives of the teachers’ unions, and they are clearly not happy with the proposed approach. They think that it is too closely founded on the English approach of constant inspection and placing principals under pressure. Moreover, they believe that the versions of ‘Every School a Good School’ that have been introduced to date contain, in my words, too much stick and not enough carrot. The Department, the teachers’ unions and the inspectorate need to agree on the best possible approach, based — as the union representative said — on a collegiate model, rather than on a model that could cause confrontation.

2727. Mr McGrath: I have no difficulty with that suggestion. My colleagues, particularly Katrina Godfrey, will have briefed the Committee on the specifics of the issue of standards and how ‘Every School a Good School’ will progress. I know that Katrina and her colleagues had considerable discussions with trade unions during the development of ‘Every School a Good School’.

2728. When we use words such as help, support and challenge, it is important that the concept of “challenge" is not automatically considered adversarial. If an inspectorate report shows that a school is at the bottom level of performance, no one will dispute that everyone in the system has a duty to address that issue. The challenge for the school and the wider system is how to improve performance. The approach does not necessarily have to be adversarial, but the ongoing level of performance must be challenged with a view to increasing it as much as possible.

2729. The ESA model should help and support all schools and should challenge schools in which performance levels could be better. In the future, some schools might, given their circumstances and resources, be deemed to be performing satisfactorily but could do better. That situation does not necessarily have to be approached in an adversarial way. Challenge should not be interpreted in that way. The approach should determine how to improve children’s prospects.

2730. Mr D Bradley: I did not interpret it in that way. However, based on the evidence from the teachers’ unions, there is potential for disagreement on the approach to raising standards. I am asking you to ensure that there is no disagreement and that all relevant parties are singing from the same hymn sheet. Such an approach will avoid a confrontational situation between the employers and the unions.

2731. Mr McGrath: I fully believe that there is a consensus among everyone on the need to raise standards.

2732. Mr D Bradley: I agree.

2733. Mr McGrath: We are talking about modalities, and I will relay members’ points — in particular, Dominic’s comments — to the officials who work more closely on the specifics of the standards agenda.

2734. Mr C Stewart: I may be able to offer more reassurance to trade union colleagues. In comparing the proposed approaches here with the approach in England and Wales, I draw the Committee’s attention — as we have done in the past couple of weeks — to the respective legislation. The School Standards and Framework Act 1998 outlines a range of significant intervention powers for local education authorities. Whether or not one thinks that the balance between carrots and sticks in the Education Bill is correct, it contains no new sticks. No new intervention powers are proposed for the ESA.

2735. Mr McCausland: Chris said earlier that — except for some references to ethos — schemes of employment will be more or less standard across all sectors. How will ethos feature in schemes of employment?

2736. Mr C Stewart: That is difficult to predict without hearing more about how the sectors want ethos to be reflected, but —

2737. Mr McCausland: Which sectors have raised that matter to date?

2738. Mr C Stewart: The Catholic education sector, the Irish-medium sector and, to a lesser extent, the integrated sector tend to raise that issue most often. The controlled sector’s interest is beginning to grow, and it is starting to recognise that it has the freedom to define an ethos for itself. Therefore, it needs to think about what its ethos might be, and how it might be reflected in everything from governance through to employment.

2739. To return to your question, one might expect a scheme of employment — for example, in a Catholic school — to make it clear that, in recruiting and selecting members of staff, part of the appointment procedure would be to test candidates on their knowledge and understanding of the ethos of Catholic education.

2740. Mr McCausland: Could you have a situation in which — across all sectors — you delete the word “Catholic" and put in a generic term that would apply to the appropriate sector?

2741. Mr C Stewart: It is quite possible that all sectors could start off in different places and eventually find themselves in similar positions. We have made the point to several sectors that we recognise and value their ethos and understand its importance to them. When one considers the strength of ethos in various sectors, they have much in common.

2742. Mr Lunn: The Minister said that she was not prepared formally to reserve a proportion of places on the board for trade union representatives because it could give rise to a conflict of interest. How does she square that with the presence of such representatives on education and library boards?

2743. Mr McGrath: The Minister did not establish the education and library boards, so she has no ownership of those governance arrangements. They predate her appointment. They are very large bodies, and bodies with that size of membership are few and far between in governance terms. Whereas in the past, it was possible to accommodate a representative model with 30 members or more, it is now difficult to accommodate that within the numbers discussed for the ESA and other public bodies.

2744. Mr C Stewart: My understanding of the legislation is that positions are not reserved for trade union representatives. There is a difference between a system that is open and allows people to take part and a system or set of arrangements that reserves places for particular organisations or stakeholders. The issue of conflict of interest is important. If I were a teacher, I would look to the trade union to represent my interests and not to sit on the management side of the table.

2745. Mr Lunn: If the trade unions want input at the top layer of the ESA, surely the conflict of interest issue could be dealt with. Such representation is made on lots of boards and organisations, and sometimes members simply have to exclude themselves from certain discussions. Conflict of interest should not preclude the trade unions from having proper input for most of the ESA’s business. The issue is probably academic anyway, because if the Minister sticks to a 12-person maximum for the board, seven of the members will be councillors.

2746. Mr C Stewart: The conflict of interest issue in that case would be extremely difficult. I can think of few aspects of the ESA’s business or affairs that would not touch on employment matters. Your first point is important. It is vital that there is an ongoing, effective working relationship between the ESA and trade union colleagues. Their input to the ESA’s business is extremely important. We would expect the ESA to pursue a social-partnership approach. We expect a productive, mature relationship between the ESA and trade union colleagues, with challenge where it is appropriate without confrontation.

2747. Mr Lunn: Michelle has kindly lent me her copy of the Department’s response. I wish that I had it in front of me earlier. I have not seen it until now. That is another example of a last-minute production from the Department. I have not received that paper yet.

2748. The Chairperson: They were given out yesterday when they were received, is that right?

2749. The Committee Clerk: Yes, by email, and hard copies were distributed.

2750. Mr Lunn: Some of us get up and come straight here and do not see our emails. It certainly has not come to me as a hard copy. That is a normal complaint; everything arrives at the last minute.

2751. The Chairperson: That was a rebuttal for the Department, and I hope that you will take that on board again.

2752. Mr McGrath: Right on the chin, Chairperson.

2753. Mrs O’Neill: Can you assure the unions that, under clause 10 as it stands, the ESA can employ a panel of teachers?

2754. Mr C Stewart: Yes, it could. The clause is sufficiently flexible and broad for the ESA to employ a panel of teachers in exactly the way that trade union colleagues have described. Whether they ought to and whether that represents the best use of resources is an issue that the Department and the ESA might want to consider, but the legislation does allow for it.

2755. Mr Poots: The UTU raised issues about the absence of focus on special needs and early-years provision. Will you respond to that?

2756. Mr C Stewart: Early years is covered in the legislation. We do not use the phrase “early years", because it is not a form of words that could easily be incorporated into legislation. The phrase we use is “educational services". The definition in the Bill is somewhat dry and wordy, but it is there specifically because there was a need, for the first time, to put the delivery of early-years services on a proper legislative footing. It is something that we have been doing on an extra-statutory basis up until now. However, we identified the need to put it on a proper legislative basis, and it is there.

2757. Mr Poots: Are you satisfied that it deals with nursery provision and so forth?

2758. Mr C Stewart: Nursery schools fall within the definition of primary schools. The definition of primary schools is in previous legalisation, and will continue in the Education Bill.

2759. Mr Poots: What about the private playgroups?

2760. Mr C Stewart: Those would come within early years.

2761. Mr Poots: They do not fall within primary schools?

2762. Mr C Stewart: No.

2763. The Chairperson: Is there any other aspect that falls under the definition of educational services other than early years? Is it all-encompassing? That is always the problem; if it is not specific, those who read it may miss that. However, if there is then a challenge, the Department is able to say that it is covered because they know that that aspect is included, but you are the only guardians of that knowledge.

2764. Mr C Stewart: Perhaps I should explain the process of how we got there. The drafting of that particular clause was long and difficult. Members will be aware that responsibility for a range of early-years services was transferred from the Department of Health, Social Services and Public Safety (DHSSPS) to the Department of Education some years ago. There was a clear need to do that, and we moved quickly to do so. The agreement was that we would put that on a sound legislative basis at the earliest possible opportunity.

2765. Perhaps naively, we thought that that would be a simple task, and that we would come up with a simple, clear definition of early-years services, which could be written into the Bill. When we looked more closely at what services are actually provided, they were extremely broad and diverse.

2766. The strength of that definition lies in the fact that those primarily non-statutory providers are continually coming up with new and good ideas of the types of services that ought to be delivered in and around communities. In order to accommodate that, we needed a very broad, flexible and all-encompassing definition, and one that we hope is sufficiently open to allow for the future development of services that are not currently delivered or perhaps not even currently envisaged. That is why it is written in that very broad formulation. Had we not done so, the difficulty would be that every time someone comes up with a new and good idea in early-years services, we would have to go back to primary legislation and stretch the definition yet again in order to encompass those ideas. That is why we have taken that particular approach. I cannot tell you exactly what might fall within that definition at this stage, because we have deliberately left it very open.

2767. Mr Poots: I remain to be convinced on that point. I feel that private playgroups will probably get a raw deal. They do not receive the same funding or support as others, and their being put into a large silo with others may not be in their long-term interests.

2768. I do not believe that the Minister’s notion of having 12 board members — a majority of which would be councillors — will work. That will result in there being a maximum of five educationalists on that board, and the ESA board requires a greater capacity. Furthermore, if the Department is going to go down the route of having subgroups and bringing in others from outside, it would be much better appointing a larger board and drawing the subgroups and the expertise from that board rather than externally.

2769. Mr C Stewart: That is a fair point. However, I emphasise that the Minister has not yet given her final answer on the size or composition of the board. She has not yet had an opportunity to come to a conclusion on the points that Committee members have raised, and she wants to do that before she indicates her formal position to the Committee.

2770. The Chairperson: Clause 13 has the heading:

“ESA to provide or secure provision of training and advisory and support services for schools".

2771. Clause 13(1) states that:

“It is the duty of ESA to provide or secure the provision of —

(a) such training, and

(b) such advisory and support services".

2772. A concern was raised by the unions that there is already a wealth of expertise within the education and library boards as they are currently constituted. Why is it that the ESA — in its interim and current forms — will be going outside the boards to secure and provide other services? Why is the ESA not seeking to use and utilise the excellent provision and services that already exist?

2773. Mr McGrath: I do not believe that the Bill is implying that. Chris’s point was that the legislation is framed so that the ESA does not necessarily have to be the direct provider, thus allowing flexibility in the future.

2774. There is considerable resource in the curriculum work that is carried out by the Regional Training Unit (RTU), the CCEA and CASS which needs to be brought together, thus harnessing those skills and expertise. The thinking behind that provision was to create a model that was much more responsive to what schools want or need. If that model is not in the form or shape of what schools want, the Department is rightly trying to make provision for the ESA to have the duty and the flexibility to create what schools, school principals and boards of governors need for professional development.

2775. There is a sense among many of the schools at the moment that a table d’hôte rather than an á la carte approach is being taken in relation to what is available for professional development. We said earlier that we see much more scope for schools telling us what they need and how they need it, and the ESA will then have the flexibility to respond to those requests. It will, undoubtedly, use much of the existing expertise and skills.

2776. The delivery model will be a much more of a responsive commissioning model by schools than a delivery model that emanates from the system. That is the theme, and it reflects many of the messages that the Department has picked up from schools. Those messages have also been reflected through some of the evidence that was given by our trade union colleagues.

2777. Mr C Stewart: That is exactly right. The point that the Department hears most frequently from stakeholders about CASS is that there are excellent people in that organisation who provide very good services, but that it is too inflexible and not sufficiently tailored to what the schools and staff within those schools determine their needs to be. Indeed, we heard those sentiments expressed again from trade union colleagues today.

2778. That is the reason for trying to introduce the flexibility; it is not that we see wholesale privatisation of provision. We see change through moving away from the ESA providing services and towards schools or groups of schools providing the services themselves. There are already seen some very good examples of groups of schools — particularly within learning communities — coming together, assessing their own professional development needs, carving out some resources and procuring or delivering those services in, and for, the schools. We believe that that model has a great deal of potential. We will tell the ESA that we expect it to look sympathetically and favourably on proposals from schools or groups of schools to develop professional-development approaches for themselves.

2779. Mr Lunn: The UTU made the point about the ESA’s duty to have regard to the requirements of industry, commerce and the professions. The union also believes that ESA should also have regard to its requirements. I assume that what the union means by that is that it is a necessary and important part of industry, commerce and the professions, and it wants its views to be considered as well. I am not sure whether it is the Minister’s response when the Department says that it is not clear about what the union means. I believe that what it means is reasonably clear. Is that simply Minister-speak for “no way"?

2780. Mr C Stewart: No, I do not believe so. Your explanation of it is helpful. Exactly what the union meant was not clear in its paper. It said that we need to amend the legislation to reflect unions’ needs. I was not quite sure what that meant. If it means that the clause ought to be interpreted as meaning that the teaching profession is an important one, and that its needs ought to be fairly central to the application of that clause, we fully support that. However, it was not clear from the wording in the paper exactly what it meant by having regard for trade unions’ needs.

2781. Mr Lunn: Is it becoming clearer now?

2782. Mr C Stewart: If trade-union colleagues agree with your helpful explanation, then I believe that it is.

2783. Mr Lunn: If trade-union colleagues were to write to you again to clarify that point, you could take it further.

2784. Mr C Stewart: That would be extremely helpful.

2785. Mr Lunn: In the meantime, however, it is not ruled out. You have said simply that it is not clear what the union meant.

2786. Mr C Stewart: That is correct.

2787. The Chairperson: On that point, I want to say, particularly to the trade-union delegation, that it will have a right to reply and respond to the Department’s paper, a copy of which we have given them. Therefore, if there are issues on which it still has concerns, we want to ensure — as we have done with others — that we try to address them. I am sure, Chris, that you are quite happy with that.

2788. Mr C Stewart: Absolutely, Chairman. Our door is never closed.

2789. The Chairperson: It takes a long time to open, but it is never closed. [Laughter.]

2790. The Minister has now indicated that she is minded to propose an amendment to the definition of a submitting authority. An issue surrounds the submitting authority’s being the trustees — people who own schools. Following from comments that were made last week, for example, by Bishop Walsh, given the fact that trustees currently appoint four members of a school’s board of governors, is it not, therefore, sufficient for the people who are on a school’s board of governors to be able to safeguard and guarantee the ethos of that school?

2791. Mr C Stewart: The Minister’s policy is that it is not sufficient and that arrangements ought to allow the owners or trustees of schools, not only to make appointments to boards of governors, but to set the governance and employment arrangements within which those governors will operate, or, at least, to ensure that ethos is properly reflected in those arrangements.

2792. The Chairperson: OK. We will now move on to your response to the issues that were raised by the CCMS and the Northern Ireland Commission for Catholic Education. Have you provided a paper for that?

2793. Mr McGrath: We provided a response last week that we did not get a chance to discuss.

2794. The Chairperson: Of course, you did provide that paper. I apologise.

2795. Mr McGrath: Chris will elaborate on some of the detail of the paper that we provided. Having listened to the comments that were made by the commission and the CCMS, we were struck by the similarity between a number of their key points and the Minister’s proposals.

2796. Strong emphasis was put on the need for a single education system, albeit one that reflects and recognises diversity. The Cardinal made specific points about the need for equality in education policy and provision. Support was expressed for shrinkage of administration and a focus on front line delivery. Bishop McKeown talked of the need to emphasise delegation to schools and the need for accountable autonomy.

2797. Discussion took place around establishing the appropriate balance between the role of the school and the wider role of the ESA as the single employing authority. As was evidenced earlier today, the role of the CCMS as the employing authority for teachers in Catholic-maintained schools has worked, and it is difficult to see how, with goodwill, the broader model proposed cannot or will not work in the future.

2798. The need for a flexible approach was recognised. Bishop Walsh cited the example that such an approach could deal with the problems of small schools that might well want to have a lot provided from the centre.

2799. As the NICCE, in particular, recognised, the Department has been engaged in a continuous process of dialogue with the Church, the trustees, the commission and all stakeholders in the legislation.

2800. The written and oral evidence shows that there is a perceived lack of clarity around some aspects of the single employing authority, and that has given rise to specific concerns on behalf of the NICCE, in particular. We would say that based on the single employing authority model that has been operating to date, namely the CCMS, those concerns can be laid to rest. The Minister is committed to continuing dialogue with the NICCE with a view to providing as much clarity as possible and, through that, to allay the concerns expressed by the commission and the CCMS last week.

2801. Mr C Stewart: Before I move on to the detail, I shall pick up on couple of the general points that John made. It is worth reminding ourselves that the RPA is the biggest reform of education in a generation. Therefore, it is not surprising that, from time to time, concerns and fears have arisen among a number of stakeholders. The Committee heard a number of those last week, and some more again today from trade union colleagues. As John said, throughout that process, we have and will continue to seek to address those concerns and to accommodate the views of stakeholders wherever we can. That is part of an open and transparent process.

2802. We recognise and value the diversity of the education system and of the various sectors and school types, each of which has a distinctive character and ethos. We recognise that every sector contributes to the success of our education system and that every sector faces the same challenges of raising standards.

2803. Every sector has a part to play in meeting the needs of children and young people. The RPA is based on that recognition. Our aim is for a modern, fit-for-purpose, value-for-money system of administration. We aim for a single system, but one supports a diversity of school types and offers the same opportunities to all on the basis of equality. We believe that the provisions in the Bill meet that aim. They threaten no school and no sector, but they offer an opportunity and a challenge to all to work in partnership for continued and greater success.

2804. The paper that we provided to the Committee seeks to comprehensively address all of the issues raised by the NICCE and the CCMS. I will not attempt to cover all of those now, but I will concentrate on the key themes of the commission’s evidence. We will, of course, be happy to pick up any other points during questions.

2805. The commission’s evidence posed three key questions or tests about the Education Bill. It asked about the rights of parents, the provision of the trustees to exercise their rights and duties, and the structures of support for each education sector.

2806. On the first of those, the commission emphasised the importance that it places on the rights of parents to have their children educated in a manner that is consistent with their religious and philosophical convictions. The Minister acknowledges that right and the need to ensure that it continues to be reflected in legislation. Again, the existing legislation must be looked at, as well as the Education Bill. Article 44 of the 1986 Order includes a provision on having regard to the principle that:

“pupils shall be educated in accordance with the wishes of their parents."

2807. The duty in that provision will apply both to the ESA and to the Department, and it will cover the exercising by the ESA of all of the powers and duties conferred, or imposed, on it by education legislation. Therefore, the Minister’s view is that the Education Bill does preserve the rights of parents, and fully addresses the Commission’s concerns.

2808. The second matter was the provision for trustees to exercise their rights and duties. A number of measures have been included in policy and legislation to ensure that the role of trustees to foster and develop the ethos of Catholic education is recognised, supported and, where appropriate, provided for in legislation. Specifically, there will be no change to the ownership of Catholic schools.

2809. The role of trustees will be underpinned in the legislation, and the submitting authorities will control the schemes of management and employment for Catholic schools and have consultation rights on matters that affect those schools, ranging from planning to the appointment of governors.

2810. Boards of governors will make key employment decisions, under the control and direction of the trustees and exercised through the schemes of employment. The ESA will be bound by the schemes of employment, and it will be under a legal duty to put into effect the lawful decisions of boards of governors. In addition, there will be no change to lawful criteria centred on ethos, such as the requirement for a certificate in religious education.

2811. Nothing in the Bill impedes the desire for greater coherence within the Catholic sector and, indeed, some provisions will assist it, such as bringing the administration arrangements for Catholic-grammar and Catholic-maintained schools closer together. Trustees will continue to have modest public funding for professional support for the discharge of their roles.

2812. In its evidence, the Commission referred to two matters under the heading: the connection between employment and ethos and exemptions from equality legislation. With respect to employment, the Commission suggested that individual boards of governors, rather then the ESA, should be the formal employers of staff. As John McGrath said, we do not fully understand why the Commission feels that only individual school employers can safeguard the ethos of Catholic schools. That strikes us as somewhat strange for three reasons.

2813. First, the fracturing of employment arrangements that that would involve seems to be at odds with the Commission’s declared aim of drawing Catholic schools closer together into a more coherent sector, particularly when, as at present, the vast majority of Catholic schools are already part of collective employment arrangements. Members will know that teachers in Catholic-maintained schools are employed by the CCMS and non-teaching staff are employed by the education and library boards. The RPA employment-model arrangements are, essentially, the CCMS model applied to all sectors, so we wonder why the commission is now arguing against those arrangements, which both it and the CCMS say are working well.

2814. Reiterating what John McGrath said, the commission said in its evidence to the Committee that small schools might struggle to discharge employment functions without a supporting authority being in place. The commission and the CCMS also acknowledged that the CCMS has an intervention role, albeit with a light touch, but one that it exercises from time to time.

2815. Secondly, irrespective of whether individual schools or the ESA employ staff, there would be no significant change to the responsibilities to be discharged by boards of governors, or to the requirement that all parties must act within education and employment law.

2816. Thirdly, the proposal from the commission strikes us as unnecessary, because, under RPA arrangements, only boards of governors, and not the ESA, can decide who will be appointed to the staff of any Catholic school — a point that was reiterated by trade union colleagues. Boards of governors must comply with schemes of management and employment that will be set by the trustees.

2817. The secondary issue raised under the heading was that of exemptions from equality legislation. In its written evidence, the commission suggested that religious schools should be exempt from the requirements of equality legislation. Members will be aware of the background to this matter, and they will know that, at the moment, the education system here is not covered by the full range of equality legislation. Schools are not public authorities for the purposes of section 75 of the Northern Ireland Act 1998, and the recruitment of teachers is outside the scope of the Fair Employment and Treatment (Northern Ireland) Order.

2818. Against that background, we would wish to comment on two aspects. First, the commission’s paper does not make a clear case for change, and we do not know what problem or difficulty the commission was seeking to address or which aspects of anti-discrimination or fair-employment legislation it felt ought to have been set aside.

2819. Secondly, with respect to the feasibility of the proposal, legal advice is required to determine whether the Assembly could take forward legislation such as that suggested by the commission. However, it is questionable whether such measures would be within the Assembly’s legislative competence as defined by section 6 of the Northern Ireland Act 1998.

2820. We welcome the apparent change in the commission’s position, which it outlined in its oral evidence. The commission stated that no further exemptions were sought, and we welcome that because we believe that there is no case for such exemptions to be sought.

2821. The Minister considers that the Education Bill recognises the rights and duties of trustees and makes effective provision for trustees to exercise those rights and duties. The Minister remains of the view that the employment arrangements contained in the Bill are the best option. Those arrangements will deliver significant benefits in relation to raising standards, professional development, workforce planning, consistency and equality and value for money. The arrangements also provide an autonomous role for boards of governors on an equitable basis across all sectors and effective ethos safeguards for owners and trustees.

2822. The third point concerns the structures of support for each education sector. Members will know that the Department is considering a number of education sectors’ business cases for public funding for sectoral support. Each business case will be assessed for value for money and against the policy criteria that are set out in policy paper 21, which the Committee considered previously. The commission suggested that the Education Bill should include references to the role of various sectoral organisations. However, the approach in paper 21 makes it clear that sectoral organisations will be non-statutory bodies and will not have any statutory functions. Therefore, we find it difficult to see a clear or appropriate rationale for making reference to sectoral organisations in legislation.

2823. The Minister also points out that legislation will contain sufficient duties, or other mechanisms, to ensure that there is effective consultation with education sectors. The education advisory forum will provide a formal statutory mechanism for the involvement of sectors and other stakeholders in policy formulation. That will be complemented by the existing specific duties to consult the trustees and others on a range of legislative matters and not just on development proposals for schools.

2824. In respect of the operational functions of the ESA on matters such as raising standards, the Minister considers that any formal duties to consult should refer to boards of governors and/or the owners or trustees of schools, rather than to sectoral bodies. The trustees may, of course, request a sectoral body to provide them with advice and support in relation to such consultations.

2825. The Minister considers that effective arrangements are being made for the support structures of each education sector. However, in keeping with the policy that is set out in paper 21, the Minister does not see a need for any new legislative provisions in relation to that matter. The commission set three key tests, or success criteria, for the Education Bill, and it is the Minister’s view that the Bill meets all three of those criteria for all sectors.

2826. The Chairperson: If that is the case, and the Minister feels that the Bill meets all three criteria and is sufficient for all sectors, is there not an anomaly or inequality? Perhaps you will explain the historical issue of why our schools are not all covered by the provisions of equality legislation. Nevertheless, if we go down this road, a non-departmental public body will be established for the controlled sector, to own its schools, and that body will be subject to section 75 of the Northern Ireland Act 1998. However, there will be another body, under the ownership of the trustees or the Catholic schools, which will not be a non-departmental public body and will not be subject to section 75. That is a glaring inequality, because you are not treating sectors equitably.

2827. The two main words that came out of last week’s meeting with the CCMS and the commission were trust and clarity. There is a lack of trust on the part of both the CCMS and the commission, and there is a lack of clarity among most people. How do we reach the situation in which people have clarity and equity?

2828. It will not be acceptable to have one sector that will be subject to all the equality scrutiny that is usually applied to a public body when other sectors are not.

2829. Mr C Stewart: There are a number of reasons why the existing range of equality legislation is not fully applied. A large part of the thinking concerning section 75 was the need to minimise or avoid additional bureaucratic burdens on schools. In the context of collective employment arrangements, the CCMS and the education and library boards would be subject to section 75. Therefore, there is no particular advantage in applying it a second time to individual schools.

2830. The issue around the Fair Employment and Treatment (Northern Ireland) Order 1998 is one of ethos. At the time of the Order’s inception, the Churches felt that there was a need to exclude teachers from its provisions to ensure that measures to protect an ethos could continue to be legitimately applied. The strongest views on that were expressed by the Protestant Churches, who felt that if the exemption were not granted, there was a danger of de facto inequality for Protestant teachers who would not enjoy the same range of employment opportunities as their Catholic counterparts.

2831. I understand your point about equity or equality between the ownership arrangements for Catholic schools and controlled schools. However, finding an answer that you would regard as satisfactory is difficult. Catholic schools are owned by the Catholic Church; an attempt to apply legislation that governs public authorities to a Church would be difficult. However, controlled schools will remain in the public sector and will be owned by some form of public authority — it would be an unusual and difficult approach not to apply the normal panoply of legislation to any public authority. Essentially, the difference is between public ownership and private ownership — between a public authority and a Church. Any attempt to subject both to exactly the same approach in legislation would be fraught with difficulty.

2832. Committee members and a number of stakeholders have emphasised the issue of clarity on a number of occasions, and we accept that. Our approach has been based on seeking to avoid excessive detail or excessive bureaucracy in legislation. We accept that that has given rise to concern about a lack of clarity. A potential approach is to move into legislation — probably subordinate legislation — a lot of the detail that we proposed to place in guidance, and that is something that the Minister will want to consider.

2833. Mr Poots: What will be the situation for voluntary grammar schools, which are currently owned by trustees?

2834. Mr C Stewart: There are no plans to change the ownership of those schools.

2835. The Chairperson: If boards of governors of Catholic schools decline to employ candidates for vacancies on the grounds of ethos, where is the reassurance for Catholic trustees that the ESA will fight such cases with the same commitment as the CCMS? I am talking about cases where there is a good and arguable case that the board of governors’ decision was lawful.

2836. Mr C Stewart: If the decision of a board of governors has been lawful and it has applied the correct procedures, we would expect the ESA to provide exactly the same backing and support as the CCMS currently does. The issue is that the law applies equally to all employers, both current and future, in the education sector. The suggestion that is made from time to time that the CCMS, or an individual school employer, has more leeway or opportunity to act differently should be challenged, because it is not accurate. The issue from our perspective, and from the perspective of the ESA in due course, is whether the law has been correctly applied; the school will be supported if it has, but the decision made by the board of governors would not be taken forward if it has not.

2837. The Chairperson: You could argue that those boards are able to do that because of the exemptions that exist. Therefore, the situation is not equitable.

2838. Mr C Stewart: The effect of the exemption is there, whether or not one agrees with it. It applies equally to every employer, current and future. It does not and cannot apply differentially between CCMS and the ESA or, between an individual school as an employer or a collective employer.

2839. Mr McCausland: I am interested in the appointment of governors and boards of governors. It is a big issue with the Catholic Church.

2840. I noticed in a newspaper recently that the Department was advertising for people to apply to register to serve on boards of governors. It was interesting that, on the form, the applicant could tick which box he or she wished to apply for: there was no provision for expression of preference. The categories were: “integrated", “Irish-medium", “Catholic management" and “other management". I thought it interesting that some sectors were specifically titled, while others were not. That could be extremely confusing for some people. I will return to that point.

2841. I am interested in the current composition of boards of governors and how, in practice, that works out. I understand the composition of boards of governors of controlled schools, but if you asked me about the composition of boards of governors in other sectors, I would have some difficulty describing it. Yesterday, I asked that question of officials at an education and library board: they had to go away and check the answer. Things tend to work in silos.

2842. Does the Department appoint some of the governors to Catholic schools, and, if so, how many does it appoint?

2843. Mr C Stewart: I find myself in the same position as the hapless official at the education and library board: I will have to run away to check. The sums are extremely complicated. Some of my colleagues may be able to advise me.

2844. Mr McCausland: It would be useful if you were to make up a little grid: I am sure that you could do it when you return to the office this afternoon. I started to make one yesterday, but I could not get all the answers. Your grid should list all the school categories, separating, for example, controlled primary from controlled integrated primary. Presumably, there are transfers from a controlled primary but not from a controlled integrated primary.

2845. Mr C Stewart: I would need to check that detail. We could certainly provide that.

2846. Mr McCausland: In the grid, all the school categories should be listed on one side, and all the different sources from which school governors are drawn should be listed on the other. Then we would know the current situation. It seemed to me yesterday, and your evidence this morning shows, that a lot of this discussion takes place in a general atmosphere of confusion and lack of clarity. That would be a useful exercise.

2847. How are the department-appointed governors for a Catholic school selected? Applicants fill in the form, asking that their names go forward. For example, I — or Mervyn, or someone else —decides to put his name forward to Michelle to be a governor of a school of a particular category.

2848. Mr C Stewart: We would be happy to take your application.

2849. Mr McCausland: I know that you would. [Laughter]. Suppose that the Church is reasonably satisfied with the arrangements and is content that the people coming forward are in full accord with the Catholic ethos. How does that work in the Department? How do you check that?

2850. Mr C Stewart: We check it through consultation. There is a legal requirement to consult.

2851. Mr McCausland: Who do you consult?

2852. Mr C Stewart: In the case of a Catholic grammar school, we consult the trustees or the existing board of governors. In the case of a Catholic-maintained school, the education and library board would carry out the consultation with the CCMS.

2853. Mr McCausland: Is the CCMS, or the particular order that owns the school, able to look down the list and determine who fits the criteria? How do they check that the candidate fits in with the Catholic ethos? How does it work? It is one of the mysteries of the universe.

2854. Mr C Stewart: It is: it is a mystery to me. You would have to ask them how they satisfy themselves about that.

2855. In practice, I am unsure whether there is the same need to check that in detail. In proposing the appointments, our colleagues in the Department and in the education and library boards take careful note of the preferences expressed by applicants on their forms. We try to, where possible, match applicants with the type of school or, in many cases, the particular school to which they want to be appointed. Applicants tend to self-select. They apply for a particular school or type of school because they have an interest in and an understanding of the ethos of that type of school.

2856. Mr McCausland: However, the application form does not contain the word “controlled" even though you are appointing governors for the next four years.

2857. Mr C Stewart: That is a symptom of a situation that arises in several aspects of education. We tend to use management-type or administrative arrangements as a proxy for ethos. It is not a particularly exact or helpful proxy.

2858. Mr McCausland: My perception — which I think is widespread — is that certain sectors are looked after whereas the others must take what they get. That is how most people perceive the situation, given that names of particular sectors are not included on forms. What happens if I want to apply to controlled primary school but I do not want to apply to a controlled-integrated primary school? I suppose that I could select “integrated schools" on the form. The word “controlled" does not appear on the form — that is incredible.

2859. Mr C Stewart: Every applicant can indicate — in any degree of detail — for which sectors they want to be considered.

2860. Mr McCausland: With respect, Chris, you cannot argue this point away. Controlled schools seem to be an afterthought with the Department at a stage when it is appointing governors for four years and after much debate about the ESA and the sector. If the Department cannot even manage to include the word “controlled" on the advertisement, what confidence could anybody have in the impartiality and inclusiveness of the Department’s approach? That is the problem.

2861. Mr C Stewart: I find myself in complete agreement with you. The form could be improved considerably by including specific references to school types and the ethos of schools rather than to their management type.

2862. Mr McCausland: Therefore, I am sure that if I visit the website tomorrow the form will have been changed.

2863. Mr McGrath: Chris has recognised — as I do — the merit of your points, which we will consider after the meeting. As was mentioned earlier, we need to do a much better job on the business of recruiting governors by explaining the role and by offering induction and training. Some of our materials are, perhaps, past their sell-by date.

2864. Mr McCausland: I was told that the deadline for applications is 20 May 2009. There is also an issue about how education and library boards appoint governors. The newspaper contains an advert for departmental appointees. Will there be an advert for governors that are appointed by education and library boards? Are they required to advertise? I was told yesterday that the answer is probably not. How those governors emerge seems to be another mystery of the universe.

2865. The Department will appoint those governors for four years, and, therefore, they will serve during three years of the ESA. They will, potentially, have a larger role in the future. It is clear that, in certain sectors, the ethos of governors fits in with the ethos of the school. However, once again, the controlled sector is at a serious disadvantage, even though it accommodates almost half of the children. Could we have the grid in the next day or so?

2866. Mr McGrath: I am reliably informed that such a grid exists in the Department. We can obtain that for the Committee as soon as possible.

2867. Mr McCausland: Will you email it to members?

2868. Mr McGrath: We should be able to.

2869. Mr McCausland: That is excellent. Will you also explain how the system works in the Catholic sector? That will enable us to see how it might potentially work for the controlled sector in the future.

2870. Mr C Stewart: Certainly; I can talk to colleagues who administer that process and elicit a detailed description.

2871. Mr McGrath: We can maybe bring a paper back to the Committee, because we are looking at how we are going to modernise our whole approach to that, so we need to set it in that context.

2872. Mr C Stewart: You rightly pointed out a number of deficiencies in the current arrangements. In doing so, you are making a good case for us to move as quickly as possible to establishing the ESA and to having new and revised arrangements to address the very issues that you raised.

2873. Mr McCausland: Your logic was going well and then it went slightly astray, but we will allow for that. I want you to move to a new system of equality. It is about getting that correction, and I welcome that. Getting that information will help us in that direction.

2874. The Chairperson: Would it not be preferable to move to the system in the Bill, rather than to the system with the ESA? Then you would have the trust that we spoke about earlier. It is clear that other sectors have issues. Nelson articulated the issues from the point of view of the controlled sector — there is no trust there.

2875. Mr C Stewart: Many sectors have issues with governance, and the point that you made at the beginning was absolutely correct. The current arrangements are Byzantine. There are weird and wonderful arrangements of compositions of boards of governors, and separate administrative arrangements and different management types for schools have developed over the years. However, the central thrust of the RPA proposals is that that is unnecessary. It adds no value; in fact, it detracts value from the education system. Therefore, we need to move as quickly and as far as we can towards harmonising those arrangements.

2876. You made a particular point, which is symptomatic of the situation — instead of responding to and addressing issues of ethos properly, we use management type as a very imperfect proxy. We need to move away from that. Ethos has a role to play, and it needs to be recognised and handled properly on an equitable and consistent basis across all sectors.

2877. Mr D Bradley: You answered the point that was made by the commission, which suggested that boards of governors should be the formal employers of staff rather than the ESA. However, it is not beyond the realms of possibility that that arrangement will change in the future. It may turn out that boards of governors, not only in Catholic maintained schools, but in other schools, will become the employers. If that were to happen, how would you protect teachers from the current situation, which the unions described earlier, that is, lack of clarity; pension difficulties; lack of transparency; lower standards; discrimination against women; and so on? If boards of governors were to become the employers, would the Department be in a position to ensure that that situation would not exist in the future?

2878. Mr McGrath: The Minister is supporting the model of a single employing authority to tackle, inter alia, the sort of issues that trade union colleagues flagged up and that you have repeated. If we were to conjecture that we lived in a world in which there was no single employing authority, the issue of how we would stop those matters arising would be down to political decisions and legislation, and to moving from the situation that we are trying to put in place to change it.

2879. Mr D Bradley: Yes, but it is not beyond the realms of possibility.

2880. Mr McGrath: That issue would be addressed when those changes were being made.

2881. Mr D Bradley: That is what I am asking. Would you be able to address those issues in the future?

2882. Mr McGrath: I do not know. On the basis of the direction that we were given on the issue, the single employing authority is rightly seen as a method of tackling and eradicating existing deficiencies. If someone wanted to replace the single employing authority, it would be a challenge to demonstrate that those deficiencies did not return to a greater or lesser extent.

2883. Mr D Bradley: It would be down to boards of governors then.

2884. Mr McGrath: No. It would be down to the person who might be sitting at this table at a future date articulating the case for a change in legislation that their Minister of the day wished to implement.

2885. Mr C Stewart: That is entirely right. It would be extremely difficult under those arrangements. The Department could not abandon its responsibilities, but it would be extremely difficult for the Department or the ESA to address the range of risks and difficulties that you listed.

2886. One of the things that was said in an evidence session last week — and it was stated previously by the GBA — was that we ought to be in a position whereby individual boards of governors are the determinants of what is lawful and what is not.

2887. If the Assembly decided to do that, the difficulty would be that 1,251 schools potentially represent 1,251 approaches as to what is correct, lawful and best practice in the publicly-funded education system. In those circumstances, it would be extremely difficult to ensure the sort of consistency or equality that I think lies behind your question.

2888. Mr Lunn: On the issue of the consultation on the appointment of community governors, and the commission’s request that “consult" should be changed to “in consultation with", I see that the Department regards that wording as too imprecise. Is that based on legal advice?

2889. Mr C Stewart: Yes, it is.

2890. Mr Lunn: There is no onus on the Department to make a suggestion for a change to something that it agrees with, but how would the Department have responded if the commission had asked for a change to “having consulted with", or to leave it as “in consultation with", but with the caveat that the ESA has the ultimate decision? I believe that I am right in saying that that is in the Bill anyway — the phrase “community governors chosen by ESA" is repeated about 10 times, and “amendments to the scheme" is also mentioned. Therefore, that is pretty clear. What is the problem about using the phrase “in consultation with"?

2891. Mr C Stewart: The Department considers the proposal to be very clear. What is not clear is what the commission is telling us is broken. Before we try to fix it, we must know what is broken.

2892. The commission said to the Department and stated in its evidence to the Committee last week that the current arrangements are working very satisfactorily from its point of view. Those current arrangements are clear. We know exactly — in legal terms — what “consult" and “appoint" mean. The difficulty is that the Legislative Counsel states that he does not know what “in consultation" might mean. It sounded to him, as it did to me, like joint appointment. The difficulty with joint appointment arises when the two participants fail to agree.

2893. Mr Lunn: I did not get that impression from the evidence last week, but I suppose that I can look at the wording again.

2894. Mr McGrath: In the evidence session last week, Bishop Walsh in particular made the point that they were happy with the existing arrangements. He seemed to have a view that the form of wording that the commission was offering would somehow imply a guarantee that there would be deeper and more meaningful consultation than the form of wording that the Department was suggesting. In a sense, it is neutral — the spirit of the consultation is separate from its precise legal nicety.

2895. The Department is saying that the legislative draftsman sees a probable diminution — rather than added value — in using the words “in consultation with". Ultimately, the appointments will be made by the ESA, and diluting that will cause confusion.

2896. Mr C Stewart: That formulation carries considerable risk. We must avoid making bad law, and law that is not clear is bad law. We know what “consult" means. There is a body of case law that sets the parameters very clearly.

2897. We know what a “reasonable requirement" is for the ESA or any public authority — what it must do, and how it needs to conduct meaningful consultation. However the phrase “in consultation with" would be new territory. Its meaning would be unclear; therefore, carries a significant risk of making bad law — law that is not clear and that would have to be interpreted by the courts, probably after a dispute.

2898. Mr Lunn: If they come back to the Department with the suggestion of using the phrase “having consulted with", would your legal expert consider that?

2899. Mr C Stewart: We would certainly seek advice on that. With my usual caveat that I am not a lawyer, I cannot see any difference between “having consulted with" and the form of words in the Bill.

2900. Mr Lunn: I am not a lawyer either, but I fancy that I can see a difference; “having consulted with" is much closer to “consult" than “in consultation with".

2901. Mr C Stewart: Sorry, that is what I meant. I do not see any difference between “having consulted with" and “consult".

2902. Mr Lunn: If there is no difference, why not placate them? I will have them put that to the Department to see what happens.

2903. The Chairperson: You made a comment that law that is not clear is bad law. The Committee has heard from a number of people who said that there was no clarity in the Bill; therefore, it must be bad law. Furthermore, you have also said that the Department is going to make changes and propose amendments.

2904. Mr McGrath: Sometimes law is changed to change the proposed content and purpose of it. On other occasions, it is changed — and rightly so — because it is not clear or because the provisions do not deal with the purpose behind the law, which can easily happen. However, as Chris said, if something on the statute book is confusing and misleading, it is bad law.

2905. Mr C Stewart: Certainly, law that is not clear is bad law. However, law that stakeholders disagree with is not necessarily bad law.

2906. Miss McIlveen: Did the Department carry out or commission any research into ethos and the protection of ethos in legislation? Furthermore, did the Department examine how that has been carried out in other jurisdictions of the UK and elsewhere?

2907. Mr C Stewart: The Department examined legislation in other jurisdictions. It has not carried out anything that I would describe as research.

2908. Miss McIlveen: Is it possible for research to be carried out in that area, perhaps by examining the Scottish or some European models?

2909. Mr C Stewart: Do you mean how ethos is dealt with?

2910. Miss McIlveen: Yes. I do not necessarily mean how it is dealt with in relation to the Catholic Church, although it does fit quite well into the discussion. The issue of ethos exists in and around the controlled sector also.

2911. The Chairperson: An issue was raised about what happened in Scotland in 1926 when Catholic schools went into public ownership. Was the ethos of those schools protected?

2912. Miss McIlveen: The ethos of those schools was protected with legal provisions. I was wondering whether the Department carried out any comprehensive work in relation to that, which is obviously a key theme in all this.

2913. Mr C Stewart: No work has been carried out in relation to that. As I said, the Department has examined the legislation in various jurisdictions and the various suggestions that were made by stakeholders. The Department’s view is that the current and proposed legislation provides adequate and satisfactory protection within the body of Northern Ireland law for ethos to be properly reflected.

2914. The case made by the commission, and the GBA before them, was that the Department simply should adopt the legislative provisions that apply in other jurisdictions. Beyond that, they did not actually make a case.

2915. The Department has not been told what is broken that we need to fix, and I am not clear on what the commission or the GBA are arguing that needs to change. There is a risk of making bad law in attempting to legislate for something when it is not clear what it is that we are trying to legislate for.

2916. Miss McIlveen: I do not necessarily disagree with you, but I want to see what evidence has been used to backup the Department’s argument. I also want to see the evidence that has been used for and against the arguments of the commission and GBA.

2917. The Chairperson: Is there something that could be provided to the Committee to give it some indication about that issue?

2918. Mr C Stewart: Could you clarify that for me, please? I am not sure what the Committee requires.

2919. The Chairperson: It relates to what Michelle has set out. What happened in Scotland in 1926 is a specific example of how faith-based schools were placed into public ownership and certain provisions were made to protect the ethos of those schools. How is that different from the legislation that is before the Committee?

2920. My understanding is — and reference was made to it in the submission by the commission —that in the Scottish model, specific provisions were made so that there was no dilution of ethos in Catholic schools that are governed by the state.

2921. Mr Poots: In Northern Ireland there is a Catholic ethos in the Catholic sector. In the controlled sector, there is a Christian/Protestant ethos, albeit not as evident as that in the Catholic sector. However, school assemblies and religious education classes do occur, which are more focused towards that Christian/Protestant ethos. The Committee wants to know how that ethos can be protected in the legislation.

2922. The Chairperson: How was the ethos of the transferors protected when they came into existence? Obviously, they transferred their ownership and became part and parcel of what was the then established institutions. How did they view the protection that was given?

2923. Mr C Stewart: The transferors have made it clear that they feel aggrieved about the changes. The protection that was given was the right to nominate school governors and the right to reserved membership on the education and library boards. We understand their position and their concerns about any changes to either of those protections.

2924. Our difficulty is with those people who say that we can adopt a simple model that is used in Scotland or elsewhere. There are many problems with that, the first being that the legislation for the Scottish model was enacted in the 1920s. A lot has happened since then generally and in Northern Ireland specifically. We have a body of European legislation that now impacts on much of this. We have the Northern Ireland Act 1998, which determines the legislative capacity of the Assembly, and we have the European Commission of Human Rights, which not only affects statue law, but very significantly changes the body of case law and how it affects those sorts of matters. Therefore, it is difficult to say how exactly that 1920’s legislation applies in 2009, never mind what the rationale was for making that particular change all those years ago.

2925. We are happy to look into that further and to offer what information we can to the Committee, if you feel that that will be helpful.

2926. The Chairperson: That will help to give us some idea of where this is taking us.

2927. Mr McGrath: We will do our best. The issue is about what the legislation provided for, it is about cause and effect, and about the perception of whether ethos is being protected and fostered.

2928. Mr C Stewart: What John is saying, and what I hinted at, is that I am not convinced that there will be a great deal of value for the Committee in expending a lot of time and effort on that model. The points that Michelle and Edwin made are very significant. At present, no clear statement about the ethos of controlled schools or the controlled sector has been written down anywhere.

2929. We will look to the controlled sector representative body to get that sector to agree on a set of principles and values in order to start forming a description of the ethos that pertains to that sector. I mentioned that point to school principals during helpful early discussions. Once we have a clearer view of what that ethos is, we can come to a view about how it might be protected in legislation.

2930. The Chairperson: What work is being done to try to get that definition? I know that this is probably a well-rehearsed point but, to date, we have not seen much progress on any work being done for the controlled sector. We have no business case, they are still behind and now you are putting another issue on the table — the definition of the controlled sector’s ethos. What work is being done to try to address that huge deficit?

2931. Mr McGrath: We are working on that, but are conscious of the fact that we had a lot on. As Chris said, we need someone to articulate and explain to us what the ethos is — it is not for us to commission an ethos. Edwin’s and Nelson’s interventions were helpful, because we are trying to promote conversations. Possibly, a question still exists over whether the controlled sector has a single ethos or whether there is a broader range, such as the examples that Edwin discussed.

2932. Mr McCausland: That gets to the heart of the matter. This is not going to go anywhere unless there is agreement and acceptance at the heart of the Department about the ethos of the controlled sector. As you said, that is not a matter for the Department to determine. However, legislative obligations and other obligations will help to shape that.

2933. Clearly, the Transferor Representatives’ Council (TRC) has a role in this matter, but it is not the only player. Other organisations and interests should be involved, particularly with regard to the cultural as well as the religious ethos of those schools. The situation is not as complex as people make out. What percentage of children in the controlled sector is from the Protestant/unionist community?

2934. Mr C Stewart: I cannot answer that today; we can add it to the grid.

2935. Mr McCausland: It is probably about 95%. It would be useful if you could send on two things with the grid. One is the percentage of children from each background in each sector. Some 99% of children in Catholic schools are from the Catholic community. In controlled schools, 95% of children are from the Protestant community.

2936. Mr C Stewart: It would not surprise me if those figures were correct, though within individual schools there will be variations.

2937. Mr McCausland: Vere Foster Primary School in west Belfast is an example of a school with a varied intake. That is the only such school that I am familiar with in Belfast, though there may be others. In due course that school will close. I have spoken to folk who have connections with the school, and I believe that its closure is likely as part of a reorganisation in that area. Those children will, presumably, go to Catholic maintained schools or to Irish-medium schools.

2938. In addition, we need to know what percentage of children in the Catholic maintained and controlled sectors come from ethnic minorities. This was a point that I made earlier to the representatives of the unions. It may be 1% or 1·5%.

2939. Mr C Stewart: Again, that would be subject to considerable geographical variations. It would be much higher than that in some areas.

2940. Mr McCausland: It will be helpful to have that information — for the Catholic maintained and the controlled sectors — as it will remove the myth that has grown up about the huge diversity of the controlled sector. That sector is much more homogenous than people suggest.

2941. Mr C Stewart: I do not disagree. Neither do I disagree with the list of the features of controlled sector ethos described by Edwin. Most, if not all, schools in the controlled sector recognise those as elements of their ethos. However, it has never been written down or clearly expressed in the past. Perhaps, many in that sector have never felt that they have a right to have such an ethos or to give clear expression to it. That is something that we need to move beyond quickly.

2942. Mr Poots: It is an unspoken ethos.

2943. Mr C Stewart: Yes, it is.

2944. Mr D Bradley: I have a question about the role of sectoral bodies in relation to raising standards. You said that the sectoral bodies would take an interest in the performance of the schools and have a role in promoting high standards generally. How will that role interlink with that of the ESA in raising standards?

2945. Mr McGrath: The ESA will have an executive role in helping to raise standards in schools. Sectoral support bodies will clearly have an interest in promoting high standards and contributing to the appointments to boards of governors. However, their role is pastoral, rather than executive.

2946. There were different articulations this morning and last week as to the role of sectoral support bodies. They will help to support the sector without, necessarily, intervening in individual schools. The executive role is for the ESA. As Frank said earlier, we should fund the sectoral bodies sufficiently for what they need to do and no more. It is important that there is no confusion: promotion of and raising standards is the ESA’s responsibility.

2947. Mr D Bradley: The role of sectoral bodies in raising standards is, then, ill defined.

2948. Mr McGrath: We expect them to have an interest. The business cases indicate that. However, they will not have a statutory duty to do so. The duty to promote standards in the public sector, and the resources to do so, belongs to the ESA in conjunction with the ETI.

2949. Mr D Bradley: Is it possible for the Committee to see the businesses cases that have been submitted?

2950. Mr C Stewart: We intended to bring them to the Committee when they were concluded. It would be unfortunate to put the business cases into the public domain in that way while we are still in negotiation with the organisations. The sectors might find that unhelpful.

2951. Mr D Bradley: Will we be able to see them at some future date?

2952. Mr McGrath: Yes.

2953. The Chairperson: The Committee has written to the Department listing a whole range of concerns and information requests about clause 8, and it has tried to bring them all together. Chris said that the Minister would probably propose secondary legislation. Is any thinking emerging on independent appeals or regulation to address the concerns that we have about clause 8?

2954. Mr C Stewart: For clarification, what I said, or what I intended to say, was that the Minister would consider a suggestion from the Committee that we should have subordinate legislation, rather than relying merely on guidance.

2955. As regards the appeal or challenge mechanism, the suggestion that we floated earlier, which can be developed if it would be helpful, would be a specific link between the Department’s power to direct in article 101 of the Education and Libraries (Northern Ireland) Order 1986 and a complaint by a board of governors that the ESA was somehow behaving improperly in relation to the discharge of its functions. That would not be a terribly difficult technical challenge, as there is a precedent for it in the legislation. It could be argued that existing legislation already allows for that. However, there would be value in bringing the respective provisions very closely together and associating them with the employment provisions in the Education Bill. The Minister would be willing to consider a suggestion from the Committee to that end.

2956. The Chairperson: The Committee has put those matters in the letter which has now gone, and will await a response.

2957. Thank you very much. We will see you next week.

25 March 2009

Witnesses:

Mr Frank Bunting		Irish National Teachers’ Organisation
Ms Avril Hall-Callaghan		Ulster Teachers’ Union
Mr Seamus Searson		National Association of Schoolmasters Union of Women Teachers
Mr Chris Stewart Ms Eve Stewart Mr John McGrath		Department of Education

2958. The Chairperson (Mr Storey): I hope that today’s business will be shorter than last week’s marathon session. The Committee will seek to avoid having so many and such protracted presentations in the future.

2959. Today we will have presentations from the Ulster Teachers’ Union (UTU); the Irish National Teachers’ Organisation (INTO), and the National Association of Schoolmasters Union of Women Teachers (NASUWT). We will also hear responses from the Department — on today’s presentation from the unions, and on the issues raised last week by the Council for Catholic Maintained Schools (CCMS) and the Northern Ireland Commission for Catholic Education (NICCE).

2960. Avril, Frank and Seamus; you are very welcome. Please make your presentation and members will then ask questions.

2961. Ms Avril Hall-Callaghan (Ulster Teachers’ Union): We thank the Committee for the invitation to give evidence. The Bill is very important, and we have notified the Committee that there are a number of points on which we wish to speak.

2962. Before I start, I will distribute a joint statement on the Education Bill that has been issued by the five recognised teaching unions in Northern Ireland. The main thrust of it is that we are absolutely convinced that the education and skills authority (ESA) must assume responsibility — as employing authority — for all sectors in education. Everybody must come into the tent, including alternative education provision, which Seamus will mention later. Otherwise, there will not be the equality within the education system that we feel is absolutely vital.

2963. A number of things flow from that in relation to the redeployment of teachers and saving on duplication — we are horrified at the thought of a multiplicity of employers carrying out the same functions. Where would the control mechanisms be? That is the main message that the unions want to get across to the Committee today.

2964. I understand that most of the other witnesses come from the alternative point of view. However, we represent the teaching force that the Bill will affect. Staff who work in schools alongside teachers will also be affected. The unions are certainly not happy about the thought of those staff working under different terms and conditions.

2965. The second point is that we are concerned about the lack of specific reference to nought-to-six years’ provision. The Department of Education is at present working on a review of nought-to-six provision. We are concerned that there has been no specific reference in the Bill, apart from a small mention of materials for young children being produced by the Council for the Curriculum, Examinations and Assessment (CCEA). There are rumours that there is an intention to, in some way, separate early-years provision from education, which we totally oppose. The unions feel that the years nought-to-six are a vital stage of a child’s development. Any language, or other, difficulties would be picked up at that stage, and we feel that it is vitally important that an education professional is involved in the early-years provision.

2966. I know that the curriculum has changed at that stage and that some people would argue that one does not need to have a teacher there, but that is not the case. Just because it is a more relaxed environment does not mean that same amount of professional input is not required. Teachers picking up problems at that early stage will help the whole system later.

2967. We also feel that equity in funding for all sectors is essential. The Committee knows that the unions have been campaigning for equity between primary- and secondary-sector funding, because we believe that most resources should be invested in the early stages in order to prevent problems developing later.

2968. Retention of salaries at the centre would be welcomed. There is no point in trying to streamline an education system and then having many different people paying out salaries. The same principle applies to schemes of employment. It would be much better to have uniform schemes of employment. There should be no provision for schools to vary from that scheme.

2969. The unions were interested to see in the Bill that employment for peripatetic teachers should be subject to negotiation with the schools. We certainly believe that it should be subject to negotiation. We favour a model that retains peripatetic teachers from within the teaching force instead of creating compulsory redundancies. A pool of peripatetic teachers of varying expertise should be maintained. In addition, teachers unions as well as the schools should be consulted about the use of those teachers. That is something that is lacking throughout the Bill — teachers’ unions are not being acknowledged as one of the major stakeholders.

2970. At present, the education system relies far too heavily on buying in expertise from outside. Therefore, we were concerned about the reference in the Bill to the commissioning of research. We feel that there is adequate expertise in the system to ensure that any required research is done by the people who know the system. When outside providers come in, they ask the people in the system for their views anyway; so, let us cut that out and put the money put into front line services.

2971. We are concerned that the Bill does not go far enough in trying to rid us of the multiplicity of bodies involved in the education service. We were delighted when we thought that all the sectoral bodies were going, but now there is a suggestion that not only are they being retained, but attempts are being made to create new ones. If we are trying to streamline the system, surely we should be trying to exclude those bodies.

2972. We are not saying that those sectoral bodies should not be able to comment, but they should do so in the same way as teacher unions. We are not funded out of the education budget, and other bodies, such as the Churches and the integrated education sector should fund themselves and leave the education budget intact for the education of children.

2973. The General Teaching Council (GTC) is mentioned in the Bill. That is one of the areas in which there should be a statutory obligation for consultation with the teacher unions. We have no difficulty with the GTC in that regard. Indeed, we have a good relationship with the GTC because the Registrar has placed it as a high-profile, important item. We do not know what the future holds, so we would like to have statutory provision for consultation.

2974. Schools should operate on a multicultural basis. As members know, our society has changed drastically in recent years. There has to be a change of emphasis: schools should be open to all, and a diversity of cultures and opinions, for instance, is to be welcomed.

2975. The governing body — the ESA — will be too small: eight to 12 people is not enough. If a couple of those people are not available on any particular day, then a small number of people could end up managing a huge employment sector. The number should be increased to 15 to 19 people, 25% of whom should be political representatives — which is what you would have wanted within your existing model. There should also be guaranteed places for trade unions at the table.

2976. It is vital that the Department of Education retains the ability to direct the ESA, because we are sure that there will be times in the future when a guiding hand will be needed.

2977. Mr Frank Bunting (Irish National Teachers’ Union): I will be brief. I want to emphasise that the five teacher unions are of the view that there should be a single employing authority for all teaching and support staff in Northern Ireland. There is a range of reasons for that view, and I can go into those reasons later, if you wish.

2978. With regard to clause 10 and the situation that we are moving into regarding redundancies and pensions, Ms Hall-Callaghan has suggested that there should be a provision in the Bill for the ESA to be able to employ panels of peripatetic teachers. That would be important, particularly for teachers in rural areas who, perhaps, will be subject to compulsory redundancies over the next decade.

2979. Clause 13 relates to the provision of training. The broad thrust of the Bill is the need for accountable autonomy, and that means schools taking the lead. In the current model, professional development and in-service training are provided on a mechanical, statutory basis by the Curriculum Advisory and Support Services (CASS) of the five education and library boards, with funding being diverted away from schools to the boards so that they can do that. I would like to see that changed to a mixed-economy model in which schools receive the lion’s share of the budget. The GTC would have some responsibility for the budget, and there would be a smaller share for the ESA to deal with. That is generally in line with the thrust of accountable autonomy.

2980. We value the role that the Education and Training Inspectorate (ETI) plays. It is currently under the auspices of the Department of Education, and we advocate strongly that that role be continued and that the inspectorate should not be separated from the Department.

2981. Mr Seamus Searson (National Association of Schoolmasters Union of Women Teachers): Our central point is about the need to have a single, central employer. That is crucial to us, because it makes the most sense. It makes no sense for schools to want to be the employer and deal with all the legal situations. Why should they want to do that? They should be guided by the ESA, and that is one of the major messages that I want to get across this morning.

2982. I shall take a slightly different tack and talk about the way in which schools operate. The important part of a school is what goes on in the classroom, whether that is in a field or in a special unit. As you might expect a representative from a teaching union to say, it is important to realise that teachers are an important part of the teaching and learning experience for youngsters. We want to emphasise that, but we also need a system that supports the teacher in the classroom. That is why schools, principals and management need to be able to support the teacher in the classroom; it should not be the other way around. Resources and support staff should be focused on supporting the teacher.

2983. The whole idea of moving away from the current number of employers was to try to streamline the system, and the next step should be to streamline things inside schools. Schools are expected to carry out many duties, and teachers and principals are not the best people to do them. We need to focus on what schools are for, create structures and systems that will support teaching and learning in schools and allow all young people to reach their full potential. The challenge for the ESA is to create an educational support system that allows schools to focus on the activity in the classroom.

2984. Some of the functions that have been talked about in other places do not make any sense. For example, the ESA should be able to relieve schools of bureaucratic and administrative burdens and offer a range of support services. If the ESA is to be the single employer, why is there a need for various employment schemes? That is unnecessary. A teacher working in Bangor should be treated the same as a teacher working in Derry, in the same situation, and that should also apply to support staff. Why would schools want to invoke extra work and extra responsibility? They have enough to do as it is.

2985. Avril mentioned alternative education providers. Education does not simply apply to one school but to a whole range of units and outfits across Northern Ireland, and the ESA should have responsibility for all of those. Outreach centres such as Newstart Education Centre, Conway Mill Education Centre and Lagan Valley Educational Project are working and supporting youngsters who are outside the education system. In some instances, they rely on charitable funding, which does not seem to make any sense because those youngsters are part of educational responsibility and need to be brought back into line.

2986. Finally, provision for 14-to-19-year-olds is straddled across two Departments, and we see potential conflict with that in the future. An important consideration is who will be the lead partner for education of people between the ages of 14 and 19. We agree that the major issue is the importance of having a single employer. Why should we have a myriad of other obstacles in the way?

2987. The Chairperson: As you are aware, today’s edition of ‘The Irish News’ reports on a conflict between the teaching unions and the Catholic bishops on this issue, because it is central to the presentations that were made to the Committee last week on the single employing authority. The Catholic bishops argued that, as a result of the ESA becoming the single employing authority, there would be a threat to ethos. From a union’s point of view, is that an issue?

2988. Mr Bunting: I do not think so. The Church is generally responsible for the population of most of the governors of Catholic schools.

2989. Provision has been made in the Bill for the trustees, as the owners of schools, to have a major say in how employment schemes and suchlike are developed. We do not envisage any threat to the ethos of any individual school. Indeed, we were surprised by the thrust of the bishops’ and cardinal’s statement.

2990. Our experience with the CCMS, which is the single employing authority for all Catholic teachers throughout Northern Ireland, is that it shows the benefits for Catholic teachers of having a single employing authority. An example of that was when schools were being closed in the Belfast area and the responsibility for redeployment of staff was undertaken by the CCMS. It was able to redeploy teaching staff across Northern Ireland. Some teachers were moved from central Belfast to Lisnaskea, for example, simply because it also suited them to move back home for a variety of reasons. The fact that the CCMS was a single employing authority meant that it had the ability to do that.

2991. The teachers who suffered most from the fact that there was no single employing authority were those in the controlled sector, because all that education and library boards were able to do, particularly in the post-primary sector, was to redeploy teachers from, for example, one controlled secondary school to another in a limited number of schools in their area. Therefore, there was total inequity in teachers’ prospects between the controlled sector and the Catholic sector.

2992. As Seamus and Avril have said, the creation of a single employment authority addresses that issue. It also enables teachers to be redeployed from post-primary controlled and Catholic secondary schools into grammar schools, and from Irish-medium into integrated schools.

2993. Recently, Armagh Integrated College was closed. Its teachers have a single employing authority, in its board of governors, and do not have the ability to be redeployed elsewhere. Establishing a single employing authority will address such issues. Therefore, from the perspective of teachers and support staff, and in the interests of efficiency, establishing the ESA is basically a dream come true.

2994. The Chairperson: Frank, I want to tease that out slightly. One of the concerns raised by CCMS and the NICCE — and I believe that some voluntary grammar schools have also raised this concern — is about the redeployment of staff. There is a worry — the reasons for which I cannot fully comprehend fully — about that matter. It seems to focus on the ESA’s ability to take a member of staff who has taught in a maintained school and place that person in a non-maintained school, and vice versa. They argue that that is the big issue.

2995. Mr Bunting: That can be addressed easily. The CCMS did a fantastic job; everyone accepts that. The boards also did a good job.

2996. The ESA will have the ability to redeploy teachers. However, the actual decision-making for the employment of teachers will remain with the board of governors. Therefore, for example, the CCMS, and hopefully the ESA when it is established, places the names of teachers who need to be redeployed before individual boards of governors. Subsequently, those teachers are interviewed by a subcommittee of the board of governors, which then appoints to the position the teacher whom it believes to be meritorious. If there is not a teacher whom the board of governors wishes to employ, it is under no compulsion to employ or redeploy a teacher who has been placed before it by the central body. The entire thrust of protection of ethos, employment status and rights by the board of governors will remain exactly as it is.

2997. Mr Searson: I want to start by saying that my interpretation is that there will be no change to what exists at present except that the final decision or control of the final decision will belong to the employer, which will be the ESA.

2998. Boards of governors will appoint and dismiss their own staff as long as they follow the correct legal procedures, and the ESA will be ensuring that they adhere to those prcedures. If a board of governors wants to dismiss somebody for the wrong reasons, the ESA should be able to step in and advise the board that it will encounter legal difficulties and other problems by using incorrect methods. That will be a safeguarding situation. An employer should take advice and guidance from the centre, which knows the law and the regulations. In reality, most boards of governors do not know the law. Schools working alone make up the law and end up in trouble afterwards.

2999. Teachers are not made redundant because they are bad teachers; it is because there are not enough children to teach. That is different from trying to dismiss someone whose teaching standards are not up to the mark. If that is the case, there is a capability procedure, which is the correct procedure for somebody who wants to go down that particular road.

3000. It is not the case that teachers are not fit for one school or another. Under present arrangements, many people who are redeployed are young teachers in their first three or four years of teaching. I do not think that schools will say that they cannot change young teachers and mould them to work a certain way. It is a bit of a red herring and is obviously hiding something else that they are trying to protect rather than coming forward and saying that it is in the interest of all schools.

3001. We spend a lot of resources on training teachers, but we do not do look after them when they leave university and college. Every so often, we put them on a daily rate, and we do not have a scheme for them. The ESA must deal with that problem and find a way for young teachers to gain employment and become inducted into the education service. As I said earlier, if that is not possible, teachers need the support to move on. People have spun the story in an unfortunate way because, as Frank said, governors will have the final say as to whether a person fits in with their staff. If they reject that person, they should do so for good reasons.

3002. The Chairperson: Before members ask questions, I want to tease that matter out a bit further. You have raised concerns about schools having the freedom to prepare schemes of employment. The Bill, as it stands, proposes different submitting authorities for employment and management schemes. However, we believe that the Minister is considering an amendment that will make the owners/trustees the submitting authority for all schools. Who should be the submitting authority that prepares the schemes of management and schemes of employment?

3003. Ms Hall-Callaghan: We feel very strongly that there should be a uniform scheme of management. There is no reason for schemes to be duplicated. We are concerned that we will end up with a situation similar to that in England and Wales, where schools are tantamount to private institutions with their own conditions of service, and so on. We do not want to countenance such a situation in Northern Ireland.

3004. The Chairperson: As regards the phrase “maximising school autonomy and centralisation", do you believe that it is a case of one or the other, or is it a combination of both? Voluntary grammar schools and maintained schools say that they have autonomy that they do not want to give up. As collective representatives of teachers, should functions be centralised, should local autonomy remain or is a combination of both preferable?

3005. Ms Hall-Callaghan: Several functions should be centralised, and we have already suggested that —

3006. The Chairperson: Employment is obviously a key one.

3007. Ms Hall-Callaghan: Yes. There are other areas that schools need to have control over, such as training, to which Frank referred. It is a mixed package.

3008. Mr Bunting: It is an interrelationship. I know that many members of the Committee, including the Chairperson, serve as school governors. We believe that the concept of governorship in Northern Ireland, England and Wales is seriously flawed.

3009. There must be a relationship between governors — who are basically unpaid volunteers who receive a limited number of hours of training for undertaking complex education and employment functions — and where their expertise may lead. For example, under the present arrangements, one governor from each school is designated to liaise with the principal about child-protection matters. I believe that as child protection is such an important, significant and difficult area, the person selected must have considerable professional experience in that area. Therefore, it may not be appropriate for a volunteer to assume such a role.

3010. If you are dealing with, and giving advice to, teachers or support staff who are under investigation and, perhaps, suicidal, then you will want to ensure that they receive the best professional support possible. Therefore, the relationship between the central authority — the ESA — and governors is complex, and while we have governors, professional expertise must come from the ESA.

3011. Hopefully, with the Committee’s help, we may move to a more professional model for education, such as the one that exists under the delegated schools management system in Scotland.

3012. Mr Searson: There is confusion about what the terms the Chairperson mentioned actually mean. They can mean different things to different people. In reality, how many decisions do schools have to make? The bottom line is that they must employ teachers; so, based on their budgets, they must decide how many teachers they can afford to employ, which will determine the curriculum they are able to offer.

3013. Having paid for buildings, heating, meals, transport and all the other factors for which a school is responsible, the major decision left is how to deploy the remaining resources. Ultimately, little is recalled, so a school’s autonomy amounts to how it uses that last piece of money. Autonomy might be exercised by a school deciding to spend money on extra equipment, such as an IT suite, or in choosing to spend money on additional teachers, support staff or materials. Schools must be careful about the decisions they make; however, those decisions should be based on the quality of the education that they provide for youngsters.

3014. Activities such as looking after school buses should be taken away from schools and dealt with somewhere else. Consequently, schools would not have a budget of £4 million or £5 million each; it would be a much smaller figure, which would reflect how much money they actually have to spend. What people mean when they use the word “autonomy" has yet to be teased out and explored further. Otherwise, we will end up with different meanings for different people, and that will cause difficulties in the future.

3015. Mr D Bradley: I thank the witnesses for their presentation. I agree with Seamus. Last week, during our meeting with the NICCE, three different terms were used containing the word “autonomy", and we are not sure whether each of those terms means the same thing. Therefore, we require more clarity on that subject.

3016. Initially, one of the major selling points for the ESA was the £20 million per annum savings that were predicted. That money was to be reinvested in front line services; however, as a result of the financial situation, the economic downturn, and so on, we are told that that money might be used to plug various holes in the education budget. Therefore, we cannot be sure that the savings will go to front line services.

3017. The Department’s main rationale for the ESA now is raising standards. You did not mention that in your presentation. How effective do you think the ESA will be in raising standards in schools?

3018. Ms Hall-Callaghan: That depends on how it goes about doing it. To date, we are very concerned about what is coming out of the ESA and out of the Department with respect to the ‘Every School a Good School’ policy. If the ESA is to be set up with the role of challenging schools — and that is what the chief executive designate is saying — I believe that that is totally wrong. Schools do not need to be challenged; they need positive support.

3019. Starting off with a confrontation — which the word “challenge" indicates — will result in teachers getting nervous, and they will, perhaps, go into a defensive mode. That will not get the best out of schools.

3020. I recently went to Finland, and one of the things that came across most was the fact that professionals there are left to get on with it. No inspectorial process whatsoever exists in Finland, and yet, its pupils achieve the highest results in the Programme for International Student Assessment (PISA) surveys. Therefore, there is something about professional self-esteem and the fact that the vast majority of schools operate well and do the best for their pupils. As Seamus said, there is a small number of problems, but those are picked up by the unsatisfactory teacher procedure and the existing inspection procedure. Therefore, we have concerns.

3021. Mr Bunting: There are different ways in which to sell the ESA. I know from the experience of the CCMS that we are not simply supporting a central employing authority for teaching and support staff out of ritual. In a place such as Northern Ireland with a small system of fewer than 1,200 mixed-model schools, the only way in which we can move forward to implement the Department’s sustainable schools programme is to have a single employing authority, whereby the actual workforce is being used more efficiently. Really, that is the key benefit that will sustain.

3022. As the chief inspector and everyone else will acknowledge, the key deliverer as regards teaching and learning in schools is the teaching force. Having a single employing authority will be a major boon, particularly for teachers who are currently isolated in grammar schools, integrated schools, Irish-medium schools and controlled schools. Having one single employing authority will bring major benefits for all those sectors.

3023. Shortly, the five teachers’ unions will meet the chief inspector, at his invitation, to explore ways in which standards in education can be raised. That is the first time that those unions have been so invited by any part of the education administrative network.

3024. I share the view that Avril outlined about adopting the English system. The London Challenge and the National Challenge in England, which try to drive up standards through the use of heavy inspections and rigorous accountability, has not worked. Rather, we believe that schools need to build on good practice, and we are keen to explore with the chief inspector how we can do that together.

3025. Mr Searson: I agree with what has been said. The teachers are the way forward, and the teachers’ unions are not the enemy. We wish to work with the Department, the ESA and whoever else to move the issue forward. We should be working together to raise standards for all young people.

3026. The Chairperson: On that point, in the briefing paper, INTO says that it has a concern about the principles that underlie the new duty on boards of governors in clause 34 to promote the achievement of high standards of educational attainment. The worry is about that responsibility being put on boards of governors. Are you saying that that has been proven, because you make reference to the new Labour school improvement agenda? Do you think that that is now being replicated under the guise of ‘Every School a Good School’?

3027. Mr Bunting: All the teachers’ unions were unhappy with the first draft of ‘Every School a Good School’. Hopefully, the second draft, which is due to come out for consultation shortly, will be a significant improvement, given the fact that there has been consultation between the Department and us.

3028. In our view, clause 34 borrows from the ideology of the London Challenge and the National Challenge, which are used in England and Wales. Our colleagues in the National Association of Head teachers (NAHT) told us that that has been found wanting in delivering improvements in standards in London and in the rest of England and Wales. That programme has been dropped in primary schools in those countries.

3029. Challenging principles on a continuing basis and employing school improvement officers is not necessarily the best way forward. School improvement officers exist in England and Wales and have fairly plenipotentiary powers to overrule principals and governors on their school development plans and on other decisions. Although it is important to have a healthy challenge function for teaching and learning in all our schools, the balance must be correct.

3030. Mr D Bradley: The key element in the ESA for the Department seems to be the raising of standards rather than its role as a single employing body. I understand why you are concerned about the employment aspect, but you are questioning the rationale of the Department, particular in relation to ‘Every School a Good School’. I thought that the final version of that policy had been published.

3031. In his report, the chief inspector mentioned specifically ‘Every School a Good School’ as a means of driving up standards. I am sure that that is something that you will want to discuss with the chief inspector when you meet him if you have issues about the approach that is advocated in that policy, which I previously described as too much stick and not enough carrot.

3032. If you, as the representatives of the teaching force, disagree with the approach that the ESA will take to raising standards through that policy, which has also been endorsed by the Education and Training Inspectorate, there is a major difficulty. As you said, the key group in raising standards is the teaching force. Therefore, there has to be a better meeting of minds between those who represent the teaching force and those who believe themselves to be charged with raising standards. If you are working at cross purposes, standards will suffer.

3033. There needs to be close co-operation between the teaching force and the administrators, in this case the ESA, if we are going to achieve the standards that we require. The chief inspector’s report suggests that, although positive improvements have been made, there is still some distance to go in that regard. I hope that you are able to come to a meeting of minds when you meet the chief inspector, which will work for the benefit of children in the long term and the raising of standards.

3034. Are teachers’ conditions of service and employment not the same across the board, regardless of the employing body?

3035. Mr Bunting: Yes, they are.

3036. Mr D Bradley: You said that there is unevenness between various types of schools. You also said that there is a lack of clarity in salary policy and pension difficulties. Furthermore, you said that there is a lack of transparency in ethos, which responds poorly to challenges and so on. How can that be the case if the terms and conditions of service are the same across the board?

3037. Ms Hall-Callaghan: There is one major difference — schools are not funded equally. Therefore, promotion opportunities are not the same for all teachers. That issue needs to be looked at, because there is more funding going into the grammar-school sector at the moment. Also, there are some schools that use honourariums and other allowances, and some may receive additional funds from parents. Therefore, there is a certain degree of inequity. The biggest inequity is probably in the non-teaching sector, where some schools have different terms and conditions than others. That is not justified.

3038. Mr D Bradley: I hear that in the maintained sector promotional opportunities used to be advertised publicly in the school, applications invited, and so on. However, that situation seems to have changed, and there seems to be private negotiations between principals and individual teachers. Quite often, positions are not advertised. Furthermore, not all staff are always aware that individuals have been promoted. Has that scenario developed recently?

3039. Mr Bunting: In a minority of schools — perhaps a large minority — there is some bad practice in areas of employment, promotions and in the implementation of salary policy statements. Emoluments — such as honoraria, to which Avril referred — have been given out without any degree of accountability. Moreover, significant failings of individual professional teachers or principals might not, up to now, have been addressed as robustly as we want, particularly in cases in which schools are in considerable difficulty and need help. The ESA will provide an opportunity for that to happen, and it is important that it has the power to do that. Furthermore, it is important to strike a balance between the ESA and schools in order to ensure harmonious working in the interest of pupils’ teaching and learning.

3040. Mr D Bradley: If I am not mistaken, in your submission, you acknowledged the work of the CCMS in raising standards.

3041. Mr Bunting: Did I say that? I acknowledge the work that the CCMS and the education and library boards have done on a range of issues. Attainment in the Catholic sector has increased over the past 10 to 15 years, for which the CCMS has claimed some credit. I agree with what Seamus and Avril said: the main credit should go to the collegiate working of principals and teachers in schools. The CCMS model, which has been borrowed for the ESA in a range of different ways, is helpful. It will abolish many arcane practices that relate to the employment of principals, and so on. A simpler, streamlined model will be introduced and will help everyone.

3042. Mr D Bradley: Last week, the Northern Ireland Commission for Catholic Education said that the CCMS has helped to raise standards in that sector because of its work with Catholic-maintained schools, and it argued that sectoral support should continue because it contributes positively to raising standards. Do you agree?

3043. Mr Bunting: Every administrative post that is created militates against people’s teaching and learning. We would much prefer the money to be diverted to teaching and learning, rather than being spent on creating sectoral support bodies and administrative support staff that will, allegedly, give sectors an advisory role. We do not see the logic in establishing four, five or six sectoral support bodies. We thought that when new education administrative bodies were being established, there would be a simple model in which all players would be members of the education advisory forum and would advise the Department of Education.

3044. Consider a similar model in the Republic of Ireland, where the Catholic Primary Schools Management Association (CPSMA) is a much larger entity than the CCMS. CPSMA performs the same role with about three members of staff who are not funded separately by Government or through public funds, but, as I understand, by the Church. I do not see why such nanny-state support needs to be given to sectoral-support bodies in Northern Ireland — simply because support is given to one Church body, it has to be given to others, which would create other sectoral-support bodies along the line. We could end up with a number of sectoral-support bodies employing more than 100 staff.

3045. The tendency has been for education administrative bodies, once established, to grow like topsy. When the CCMS was established, it employed seven or eight members of staff. It now has approximately 85 employees and, therefore, we must be careful. The Department wants to give additional capability to those particular bodies, but they do not need it. The existing members of staff know that perfectly well, because they receive all the necessary advice and support from within their own sectors.

3046. The Chairperson: Frank, does that have an adverse effect on education? The worry, or fear, is that the result of raising concerns and issues, and moving away from the debate on efficiency to one on who runs the schools, may lead to a more segregated and Balkanised education system than ever before. The opportunity exists to work together to the advantage of all children, as opposed to all children, but particularly those in certain sectors. The fact that there are so many sectors raises difficulties.

3047. Mr Bunting: Other major strategies are within the Department of Education’s ambit. For example, learning communities have been established within which post-primary schools from all sectors work more collaboratively. There is a progressive move in that respect. However, we see no logic in additional tiers of education administration being built in as well as the ESA.

3048. The Catholic Church, the transferors, the Governing Bodies Association (GBA), the Northern Ireland Council for Integrated Education and Comhairle na Gaelscolaíochta all have the capability to provide advice to the Department of Education on ethos, and on the education and learning in their particular sectors. Why do they need additional capability, the funding for which would come from the education budget? As Dominic said, that budget is under increasing pressure because of the state of the economy. All available money should be invested in teaching and learning.

3049. Ms Hall-Callaghan: We must also focus on professional development, and teachers must be allowed enough time to participate in that. That is how to raise standards.

3050. The Chairperson: Frank, the one sector that you did not mention, and it is invariably omitted, is the controlled sector.

3051. Mr Bunting: Sorry, I thought that I had mentioned the controlled sector. When I mentioned the transferors, I meant that to refer to the controlled sector.

3052. The Chairperson: Where is that sector’s capability to be at an equitable level with all other sectors? At present, there is no such equity.

3053. Mr Bunting: We are still in the process of responding to the Department of Education’s proposal relating to paper 20 on the review of public administration (RPA).

3054. The Chairperson: The paper’s author is sitting behind you.

3055. Mr Bunting: He has much more capability than I have.

3056. It is important for the working group proposed by the Department to address those issues.

3057. The Chairperson: If we could establish that working group, it would be extremely helpful.

3058. Mr Bunting: I absolutely agree. The only issue that INTO has is that the working group should be built on the existing expertise in the education and library boards. For reasons of exigency, I believe that the Department wants to select people to be involved in consultation with the education and library boards. The education and library boards have been 100% responsible for the development and maintenance of the controlled sector. In my view, they have done a first-class job. There is a body of expertise in the boards that could be used to ensure that that sector is not treated any less equitably than another sector.

3059. Mr Lunn: I will not take up much of your time, because, for once, I find myself agreeing with almost everything that is in the submission. I want to raise a couple of small points; however, I am more interested to hear the departmental response to your comments.

3060. Your paper states that equity in funding for all levels is essential. Can you tease that out a wee bit for me? I do not believe that you mean equal amounts of funding, but rebalancing of amounts. By “schemes of employment", I presume that you mean a model scheme that could be varied slightly if necessary.

3061. I am having quite a good week on the subject of the ESA, because, suddenly, the Catholic bishops and unions seem to agree with me. I am delighted. [Laughter.]

3062. How many guaranteed places for trade-union reps do you suggest? In your submission, Frank, it states that the ESA should report to, and be subject to, scrutiny by the Assembly’s Education Committee. Of course, it would be subject to scrutiny by the Committee, although I am not sure about formal reporting.

3063. The multicultural reference is music to my ears.

3064. Generally, you find differences of opinion between trade unions in the same sector. I have looked at all those submissions and I cannot find any differences in them. Are there any areas that you have not mentioned on which you do not agree?

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

3065. The Deputy Chairperson: We have got only half an hour or so left. [Laughter.]

3066. Mr Searson: We agree on the important matters. Although certain issues may need further airing, we agree on the vast majority.

3067. Mr Lunn: Deputy Chairperson, it is a bit rich for you to point out that we have only half an hour left. Those were short questions.

3068. The Deputy Chairperson: I believe that you misinterpreted my remark. Go ahead, Trevor.

3069. Mr Lunn: I am waiting to hear from Mr Bunting on the issues that I just highlighted.

3070. Mr Bunting: Representatives of two unions — the Association of Teachers and Lecturers (ATL) and the NAHT — are not present; they must have fallen off the wagon. The five teachers’ unions are of one view on the matter. Our approach is absolutely seamless. That gives a lot of resonance to what is in the draft Education Bill. We believe that if it were enacted in that particular manner, with some of the minor caveats that we have brought forward, it would be extremely helpful.

3071. Mr Lunn: The trade-union interests merit some mention. That is a fair point. Perhaps, the Department would say that they are included in that regard for the requirements of the professions. As I said, that is why I want to hear from the Department, rather than from yourselves, on the points that you have made.

3072. Mr Bunting: There teachers’ unions have had representation on the education and library boards, but none on any other entity, such as the CCMS. Meaningful consultation would be helpful, bearing in mind that, at the end of the day, the ESA will be the employer of teaching and support staff. Some adoption of the education and library board model in that particular category could be helpful.

3073. Mr Lunn: I mentioned equity in funding for different levels. Presumably, you mean an increase in early-years funding?

3074. Mr Searson: There is a question of funding or resources going to where there is need. The problem is that everyone assumes that a particular sector needs only this, and another sector needs only that. In fact, the needs of schools in particular areas must be considered. That must be levelled up. As Avril said, the early years are important, and that area is one of the poor relations in the funding arrangement. The whole way in which schools are funded must be reviewed at some point in the future.

3075. The Deputy Chairperson: You said that you believed that the Education and Training Inspectorate should be part of the ESA, not separate from it.

3076. Mr Bunting: No. It should remain part of the Department of Education and separate from the ESA. Some people advocated that the Education and Training Inspectorate should become independent of the Department of Education, but the inspectorate has a good professional relationship with schools and teachers’ unions, and its present position in the Department of Education helps, rather than takes away from, its remit. We advocate the continuance of the Education and Training Inspectorate in the family of the Department.

3077. The Deputy Chairperson: Is there a case for the CCEA not to be a part of the ESA?

3078. Ms Hall-Callaghan: There is no reason why it should not be a part of the ESA. The CCEA is part of the whole education system, so it should be in there.

3079. Mr Bunting: The CCEA’s current management and regulatory issues can be managed inside the ESA. There is no reason why the CCEA should not be part of the ESA, bearing in mind the size of Northern Ireland.

3080. The Deputy Chairperson: The next question is from Michelle McIlveen.

3081. Miss McIlveen: Unfortunately, by this stage there are few questions left to ask. Each representative body that has attended the Committee over the past few weeks has put forward strong arguments for strengthening its own position, and you have not let us down with that. Will you expand on where you see your role in the ESA? You said that you wanted the trade unions to be mentioned in the legislation. How many places do you feel that you should have on the ESA board?

3082. Ms Hall-Callaghan: Public appointments to the ESA board are a difficulty. Presumably, if some mechanism were in place to ensure that councils or political parties could nominate, that difficulty could be got around. We will not want a huge representation, because it is important to have a balance of the community in the ESA grouping. We believe that we should have a place on the board as of right, rather than maybe or maybe not being on it.

3083. Miss McIlveen: Have you been given any indication from the Department that you might be excluded?

3084. Ms Hall-Callaghan: We have not, but there is a difference between being able to apply through a public-appointments process and being assured of having a presence. Such a presence is assured in the Labour Relations Agency and in the industrial court.

3085. The Deputy Chairperson: If you were on the board of the body that employed your members, would that compromise your position, given that your responsibility is to stand up for your members’ rights against that organisation?

3086. Ms Hall-Callaghan: That did not affect us in the operation of the education and library boards. We had nominees on those boards. That proved to be helpful, because it meant that the practitioners’ voices were heard directly by the management.

3087. The Deputy Chairperson: Is there any precedent in UK legislation for the type of consultation that you advocate?

3088. Mr Bunting: We are asking for representation. I do not think that there is a precedent for that.

3089. The Deputy Chairperson: We could ask the Research Services to look into that.

3090. Miss McIlveen: Will you continue with the point about the fact that you feel that your role should be strengthened in the ESA?

3091. Ms Hall-Callaghan: We already mentioned the GTC, and about being written into that part of the legislation. We represent teachers, who are a huge influence on the education service. So as long as we are written into the legislation, we will not be left out of the process. If a statutory requirement is placed on people to consult, they will do so, but, if we are not specifically mentioned in the Bill, there will be a tendency to put us to one side and talk to us later. We want to be an integral part of the process, in the interests of the children. We bring the perspective of the teacher, who is the front line worker.

3092. Mrs O’Neill: A lot of ground has been covered, but Frank and Avril mentioned the employment of a panel of teachers. On my reading, clause 10 includes that provision. Why do you think that it is not, or why do you believe that an amendment is needed?

3093. Mr Bunting: It is difficult to know the legislative and the practical outworking of that. We have been making representations on the matter to the Department for a considerable time and have received no reassurance.

3094. We are moving rapidly towards a situation this year when there must be a panel in place. We would be more than happy to accept an assurance obtained by the Committee that the ESA is capable of employing a panel of teachers, particularly for the type of exigencies that we have outlined. In those circumstances, we would be content to let the legislation sit.

(The Chairperson [Mr Storey] in the Chair)

3095. Mrs O’Neill: That is something that the Committee can put to the departmental officials.

3096. Ms Hall-Callaghan: The other thing that we have been working on is a winding-down scheme, which involves teachers at the end of their careers — who have accumulated a lot of expertise and experience — would be able to reduce their workloads and perhaps enter that pool of peripatetic teachers. However, that is another issue about which we have come to brick wall with the Department.

3097. Mr McCausland: Paragraph 14 of the UTU submission states:

“Whilst the UTU accepts that it may be necessary on some occasions to commission research it would state its very strong reservations about the amount of public funds currently used in employing commercial companies to carry out research."

3098. Have the unions any understanding of what is currently spent on research?

3099. Ms Hall-Callaghan: We have no idea of the level of expenditure, but we have recently been advised by Gavin Boyd that he will again outsource work on the setting up of all the ESA structures, yet people in the boards know all those structures inside out. Nevertheless, he is buying in resources on the grounds that he does not have the necessary expertise.

3100. Mr McCausland: The unions state that:

“schools should operate on a multi-cultural basis in the interests of unifying our society".

3101. How do you see that working out across the different sectors?

3102. Ms Hall-Callaghan: I am a great believer that there should not be different sectors. I think that we should all come together and this is the one thing that may unite people in Northern Ireland. In the context of a multi-diverse European society, I believe that we should be thinking more of bringing people together — allow for those sectoral differences by all means, but do so under one roof.

3103. Mr McCausland: If there were sectors, which there may be, how do you see multiculturalism working out across those sectors?

3104. Ms Hall-Callaghan: It is very difficult to represent a multicultural society if people are put into separate boxes. The Lisanelly site at Omagh is the single good major development that is underway at present. There at least the maintained and controlled sectors are being brought together in one campus. That may be some sort of halfway measure — I would like to go the whole way — but at least that starts the process.

3105. Mr Bunting: The current situation is a mess. Under the 1986 Order, the education and library boards were legally responsible for the planning and development of schools in their respective areas. However, that never actually worked for the Catholics, because when the CCMS was created under the 1989 Order it was given the statutory responsibility for the provision of Catholic education. I believe that the ESA presents an enormous opportunity to remove all that dysfunction. The ESA — in collaboration with all the relevant bodies — can work for a more planned schools system. As we move forward towards collaboration and sustainable schools, that will maximise the opportunities for all kinds of education including multiculturalism.

3106. Mr McCausland: Have you any idea what percentage of children from ethnic minority communities attend controlled and Catholic maintained schools?

3107. Mr Bunting: Not off hand.

3108. Mr D Bradley: One point occurred to me as you were answering Nelson’s question. Is it possible for the sectoral support to be located within the ESA? In the same way that there are different sections within the Department of Education, there could be a section within the ESA for Irish-medium, controlled and maintained schools. It would provide sectoral support under one roof, and there would be opportunities for coming together. It would be easier to collaborate, as you suggest they should do. I am unsure whether the various sectors would agree with it, but is it a possibility?

3109. Mr Bunting: I would say that it is not.

3110. Ms Hall-Callaghan: I think that it could work, but I do not know whether the sectors would accept it as sufficient.

3111. The Chairperson: Frank, you referred earlier to the education advisory forum. The Committee does not know much about it other than its name. We do not know who will be on it or what its role will be. Do you think that that would be preferable to having all these sectoral bodies? There is some weight to the argument that the sectoral bodies should not only exist, but that they should be provided for in statute. In addition to having the CCMS, integrated and Irish-medium sectoral bodies, we need the GBA — the grammar school sectoral body — represented, and also a body to represent the controlled sector. We could end up having more sectoral bodies than we have ever had.

3112. Mr Bunting: We are baffled as to why we need sectoral support bodies in education in Northern Ireland when they are not needed in the Republic of Ireland, which has almost exactly the same system of education. The Catholic and Protestant Churches and the other interests in the Republic are content, yet in Northern Ireland there is a completely different interpretation as to how education administration should be supported. There is a major mismatch, and there must be an explanation for it.

3113. The Department originally brought forward the proposal for an education advisory forum. That is why it is wrong of Michelle McIlveen to talk about our looking for more power. Technically speaking, we are not looking for more power. As a stakeholder, the teachers’ unions were to be represented in the education advisory forum.

3114. All the other interests that are now being supplemented and artificially created as sectoral support bodies were supposed to be in the education advisory forum. That was supposed to be a strategic policy advisory group for the Department. That is such common sense that we supported it 100%. The Department has done a fair bit of work on it and there are papers available to the Committee, which would be helpful.

3115. Mr McCausland: How would you select representation to that forum from the controlled sector?

3116. Mr Bunting: That is one of the functions of the working group which the Department is proposing in paper 20. Paper 20 is exceptionally interesting. It shows the complexity of the controlled sector and how that needs to be brought forward. I will not second-guess the working group: it is for them to answer your question.

3117. The Chairperson: You refer to “the complexity of the controlled sector". What is meant by that phrase? The figures indicate that more than 90% of children who attend controlled-sector schools come from the Protestant community — what is complex about that?

3118. Mr Bunting: There is nothing complex about that. I am just saying that there has been a growing body of controlled-sector schools over the past 10 or 15 years: for example, there are now Irish-medium schools in the controlled sector. Therefore, to answer Nelson’s question, a mechanism that represents 100% of children in the controlled sector needs to be found.

3119. The Chairperson: Avril, Seamus, and Frank, thank you very much for your submission. You are welcome to stay and listen to the departmental representatives’ comments — or their rebuttal, as it has been referred to. I am sure that you had those in the past.

3120. Mr Bunting: That is a very polite way of putting it. [Laughter.]

1 April 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr John McGrath
Mr Chris Stewart
Ms Eve Stewart

Department of Education

3121. The Chairperson (Mr Storey): Mr McGrath, thank you for your patience. We have the paper, and I want to raise one specific point. Members will have questions, and we will try to get to them as quickly as possible rather than go through the whole paper.

3122. Mr McGrath (Department of Education): Yes, that will be fine. I will make a couple of remarks, and Mr Stewart will refer to some of the issues that have been highlighted this morning rather than track through the papers.

3123. It was an interesting discussion. From the Department’s, and the Minister’s, point of view, we welcome the chief executives’ support, on behalf of the boards, for creating a single system — one that recognises diversity and creates a regional authority that gives appropriate recognition and importance to children’s services, youth services and early-years services. It gives regional policy with local flexibility.

3124. The system is based on accountable autonomy for schools — autonomy for schools to decide how they will attain standards and how they will secure services and training, which will be matched by accountability for those outcomes. The ESA will support and challenge schools. Essentially, it will be a model where, in the case of many schools, they move from being in a command-and-control system to a role where they are at the centre of the commission.

3125. Some of the chief executives said that they had issues that needed to be clarified or that amendments needed to be made to the Bill. Legislation is difficult. The Chairperson described it as an onion: it is complex; people do not always get the right interpretation first time, and, perhaps, some mist surrounds the Bill. We may have helped to diffuse some of the mists of people’s interpretations in earlier weeks, and I am reasonably sure that we can dispel most of the mists surrounding the issues that our chief executive colleagues have just raised. I hope that we will be able to do some of that now and, if not, we will deal with them at the next session.

3126. Mr Chris Stewart (Department of Education): I am conscious that the Committee is pressed for time, so I will keep my presentation quite short. There are three issues that I would like to cover; the others, as the Chairperson said, have been covered in the paper.

3127. I hope that Members will forgive me for starting with two technical issues. Nevertheless, they are significant, and a clear explanation may help to avoid some of the misunderstandings that might otherwise be perpetuated.

3128. In several of the boards’ submissions, and in the submissions from some of the other stakeholders, the view was expressed that the Bill does not cover pre-school education or nursery schools. In fact, it does. Clause 2(2)(a) includes pre-school education, but the references are to “educational services".

3129. That term is included specifically to cover pre-school education. As we discussed briefly last week, it is intentionally broad because that is necessary to reflect the diversity and the evolving nature of early-years services. It is simply incorrect to say that the Bill does not cover pre-school education.

3130. Gordon Topping answered his own query about whether nursery schools are included. The definition of nursery schools falls within the definition of primary schools. The definition of primary schools is in the Education and Libraries (Northern Ireland) Order 1986 rather than in the Education Bill. As we discussed previously, those pieces of legislation must be read and construed together, as outlined in clause 52 of the Education Bill.

3131. I will now discuss an even more dry and technical issue. There has been considerable debate and comment about the construction of clause 2 and whether to combine youth services and early-years provision, which are currently separate. They are covered by separate provisions because it would be extremely difficult to convey those services in a single provision without damaging youth services and, specifically, without restricting the age range until which youth services can be provided.

3132. Early-years educational services and schools focus on children and young people, and existing legal definitions set the age boundary at 18 — or 19 in secondary education. However, youth services are routinely provided for people up to the age of 25. Therefore, if we simply combined the provisions, we would have to limit the provision of youth services to people up to the age of 18. In order to retain the flexibility that colleagues and stakeholders in youth services have told us they need, we have created separate provisions.

3133. I will now move to the more substantive policy issue. The employment arrangements in the Bill featured significantly in this morning’s discussions and in previous Committee meetings, and it is the issue that stakeholders raise most frequently. I will begin with a brief recap of the intention of the employment arrangements.

3134. In essence, the arrangements are the CCMS model applied to all schools. Different models could have been chosen. The GBA and, more recently, the Northern Ireland Commission for Catholic Education argued that all 1,251 schools should be separate employers. The argument that the Committee heard this morning supported the concept of a single employer with a limited role for boards of governors — in effect, every school a controlled school. Those two options might have been chosen. However, the Minister chose to apply a third model — the CCMS model — to all schools.

3135. In practice, all staff in all grant-aided schools will be employed by the ESA. The ESA is the employer in education law and in employment law, and contracts of employment will be between the ESA and members of staff. Boards of governors will have a strong autonomous role and will discharge employment functions on behalf of the ESA, which is the employer. In essence, it is a delegated model. Boards of governors will make decisions on employment matters and, in doing so, will discharge functions that are delegated to them by the ESA.

3136. 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.

3137. 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.

3138. 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.

3139. A further provision could be included — it is related to the other concern that the Committee raised — that would permit a board of governors to make a complaint to the Department if it believed that the ESA had acted in breach of, or in some way contrary to, the scheme of employment. If the Department were satisfied that a breach had occurred, it could use its power of direction under article 101 of the Education and Libraries (Northern Ireland) Order 1986 to remedy the matter.

3140. It is our view that, taken together, those measures — if they were to be taken forward — would provide the clarity and the certainty that boards of governors, other stakeholders and Committee members are looking for. However, the Minister would welcome the view of the Committee as to whether that would be a satisfactory response to the concerns that have been raised.

3141. There is a great deal more that I could say, but I will stop now for members’ questions.

3142. The Chairperson: Thank you, Chris. That is obviously something that we wanted to talk about. We would like to see, at an early stage, what form the subordinate legislation would take. You gave us an idea of the likely content of that enabling provision in your written submission.

3143. Mr C Stewart: Possibly part of it; it would not necessarily be limited to that provision. The written submission comprises our initial thoughts about the bones of the regulations, but other issues that would have to be addressed in order to provide clarity could also be included.

3144. The Chairperson: The issue has come to us now, and we will have to take a view on whether it is enough to satisfy the concerns that have been raised.

3145. Mr McCausland: My questions were on matters that carried over from last week’s meeting.

3146. The Chairperson: We will deal with them now.

3147. Mr McCausland: Last week, I asked for information on how to ensure that governors in the sector are sympathetic to the Catholic ethos. How long will it be before we can get an answer to that question?

3148. Mr C Stewart: I apologise for not providing you with all the information for which you asked. I understand that we have sent you some of the figures that you were looking for; perhaps they have not yet reached you. I will endeavour to provide that before next week.

3149. Mr McCausland: We will be on holiday next week.

3150. The Chairperson: Was that information sent to the Committee or to Nelson?

3151. Mr C Stewart: I will have to check that.

3152. Ms E Stewart (Department of Education): It was sent to the Committee Clerk.

3153. The Chairperson: We have not seen that yet.

3154. Mr McCausland: Michelle wanted to ask about another paper.

3155. Ms E Stewart: Was her question about the ethos paper? A question was asked last week about ethos and whether any work had begun on the ethos paper.

3156. Mr C Stewart: That work is in hand; we are not in a position to bring a paper back to the Committee just yet. We will endeavour to do so as soon as we can.

3157. Mr B McCrea: In your remarks on clause 8 in your written submission you seem to be pretty sure that boards of governors will not be allowed to deviate from anything. Chris asked whether the Committee would be satisfied with what was put forward. I suppose that we are driven by what other people think, but there is a deep concern about the reinforcing of the point that control of the contract of employment is control over everything else. I am not sure that we will resolve that issue. Everything I see reinforces the notion that the situation is as you described — that the ESA is responsible, and that is that.

3158. Mr C Stewart: I would not put it quite like that. You have heard contrasting views from stakeholders in recent weeks. The GBA would certainly say — and the Northern Ireland Commission for Catholic Education is coming closer to the same view — that the ESA will have too much power and control, and because the ESA will be the employer, boards of governors will have no autonomous role. There is a sense today from the education and library boards that they hold the opposite view — that we have gone too far and have allowed too much autonomy and leeway for boards of governors to do their own thing, and that there is insufficient control for the poor unfortunate employing authority, which has to pick up the tab if something goes wrong.

3159. It is interesting that there are two such contrasting views and interpretations of the same provisions. Our response is that neither is correct. Colleagues from the education and library boards describe the Bill as a fudge; we describe it as a balance. There is a single employing authority and there is a single employer. There is one organisation that will hold the contracts of staff, but in a delegated model decisions will be made by boards of governors in the name of and on behalf of the ESA.

3160. In our view, notwithstanding the concerns that we acknowledge about the need for more detail and clarity, the crux of those arrangements is a balanced model, in which there is a single employer, but which involves the delegation of a very strong autonomous role to boards of governors. It is, in essence, the CCMS model, which, in recent weeks, members have heard described as working very effectively in the maintained sector, and as involving a light-touch intervention where necessary. Those are positive features that we wish to see as part of the new model.

3161. The Department does not want any more than the GBA would want; it does not want a heavy-handed interventionist approach from the ESA. Equally, it does not want a laissez-faire approach, which would leave boards of governors, in particular, feeling unsupported and unassisted in discharging the significant responsibilities that they are given. We are looking for balance, and the closest current model to that is most definitely the CCMS approach.

3162. Mr B McCrea: You said that it was interesting that different folk could draw different conclusions from the same piece of legislation; I drew a different conclusion from what the boards’ representatives were saying. I thought that they were saying that there was a lack of clarity; that there was a statement in support of maximum devolved autonomy, but that they were actually getting a more centralised response.

3163. I took them to be calling for a decision one way or the other, so that the appropriate arrangements could then be made. I think that the nub of the issue is that people hear the Department stating that, rest assured, it is not its intention to do this, that or the other, but when they read what is written down, the legal interpretation from some quarters is something different. I reiterate that I think that is the nub of the problem. Obviously, one can extend the employment issue to all the other issues, including educational psychologists etc, as Gordon Topping did. However, is the Department aiming for a deregulated oversight model, or is its view that that is too much of a burden for many people to carry and that it must be done centrally?

3164. Mr C Stewart: The aim is very much to establish a deregulated oversight model, but there is a more general point to be made in that it is possible to put a great deal of detail in primary legislation — much more than the Department has done. That, in fact, has been the approach in education over the last 35 years, which is why there is approximately three times the volume of primary legislation on education than there is on health. If you add up the 11 Orders, there are 674 articles and 60 schedules. If those regulations were to sit on one’s desk, they would make a pile about six inches high. One may regard that as a good thing or a bad thing; there are different ways in which it can be done.

3165. One of the consequences of that is that every time something needs to be changed, you go back to the primary legislation. In taking forward the RPA, the Department’s policy was to put as little detail as possible in the primary legislation. We recognise that the particular issue under discussion has given rise to very significant concerns on the part of stakeholders and the Committee, and that there may be a need to shift the balance and put more detail into primary and subordinate legislation.

3166. Mr McGrath: The detail would explain the model; it would not change it. Chris made the point that, a couple of weeks ago, the CCMS representatives pointed us to the model that they use — an employing authority with a light touch. That demonstrates that a balance can be struck, and that it can work. That is the issue that people have to understand; once all the detail is determined, it will explain the model. People have to recognise that it can — and does — work.

3167. It is a sensitive issue, and there is a spectrum, but we are trying to strike a balance by setting up a single system. We see a single employing authority at a strategic level as being the cement around that system, as opposed to having five different systems. There will be maximum delegation to schools, and, on the other side, schools will do their best to meet and drive up standards and will be held to account for that. That is analogical with the way in which the CCMS has worked, and with the improvements in the Catholic maintained sector over the past number of years.

3168. Mr Lunn: We had a discussion about the inspectorate not being independent. Are you aware of any particular reason for that being the case in the first place?

3169. Mr McGrath: I cannot go back into the mists of time. However, you rightly asked what was broken that needed to be fixed? There is no evidence. I hesitate to speak for the current inspectorate or for previous inspectorates, but I think that they would take a dim view if they thought that there was an implication that there had been any constraint on the independence with which they did their work.

3170. Clearly, there is separation. However, the concept of having professional advisers whose role it is to give independent advice but who work as part of a Government Department is used across the system. Nationally, the Chief Medical Officer is responsible for advising the Government on the state of public health, but he is also part of the Department of Health. The Chief Medical Officer has the same role in our Health Department. It is a sophisticated model, and we have no difficulty with how the inspectorate operates at the minute. We would be wary of suggesting that another body should be set up simply to solve a problem that when there is no evidence that it existed in the first place.

3171. Mr C Stewart: John and I worked in the health field for many years, and we never felt that any of our chief professional colleagues were in any way impeded from telling us when they thought we got things wrong.

3172. The Chairperson: I will return to an issue that we still have not had any feedback from you on. The Minister is considering amending the Bill so that the owners of schools would be the submitting authority. We still do not know what the ownership body of the controlled sector will be. Has any thought been given to retaining an element of the existing education and library boards so that they would become the submitting authority? In that way, inequality would not arise as a result of some trustees being treated separately from schools in the controlled sector, which would be subject to public appointments procedure and to section 75 requirements. Basically, it would be a non-departmental public body.

3173. Mr C Stewart: I have certainly made the Minister aware of that suggestion. However, she has not yet responded formally. We recognise that that would be a very significant policy change. I am sure that the Minister would welcome a formal view from the Committee on that before coming to a conclusion.

3174. Mr McGrath: I think that it appears that it would makes things very untidy.

3175. The Chairperson: More untidy than they currently are?

3176. Mr McGrath: Certainly, given where we are trying to get to.

3177. The Chairperson: Do you accept that we are currently not in a very good position?

3178. Mr McGrath: I think that there is a general view around the table that we would not have chosen to start to devise an education system from this position. However, in trying to move forward and modernise, I think that retaining aspects of the old model for particular consideration is not the way to deal with some of the issues. Granted, there is an issue around ownership bodies and the submitting authority. That may be best dealt with in the context of creating a controlled state body.

3179. The Chairperson: In January, the Committee sent a letter to the Department containing a list of issues around which members still had concerns and on which information was required. In March, we updated that list, and another letter was sent. Can we expect a response to that letter after the Easter recess?

3180. Mr C Stewart: Yes.

3181. The Chairperson: Many of the issues that were raised this morning are contained and summarised in that letter, therefore, it would be very helpful to get some response.

3182. Chris, John and Even, thank you very much. Do not eat too many Easter eggs over the break.

1 April 2009

Witnesses:

Mr Gregory Butler		Southern Education and Library Board
Mr David Cargo		Belfast Education and Library Board
Mr Barry Mulholland		Western Education and Library Board
Mr Stanton Sloan		South Eastern Education and Library Board
Mr Gordon Topping OBE		North Eastern Education and Library Board

3183. The Chairperson (Mr Storey): Gentlemen, you are most welcome to the Committee for Education; I am delighted that you are here. Gordon, I will hand over to you to make a presentation, after which members will ask questions.

3184. Mr Gordon Topping OBE (North Eastern Education and Library Board): Thank you for that welcome. We are delighted to join the Committee this morning to express our views on the Education Bill. I am sure that the date has nothing to do with your calling us today.

3185. The Chairperson: No, but it does have something to do with the Department officials who will follow you.

3186. Mr Topping: I assure you that everything that we have to say is serious.

3187. The Committee received a response to the Bill from the boards. I will present the background issues and an overview, and my colleagues will provide some detail on the specific strategic issues that the Bill raises.

3188. Since the announcement of the decisions associated with the review of public administration in November 2005, we have supported the proposed changes and worked co-operatively. Today, for example, part of our organisation has been hived off and is now part of the new Northern Ireland Library Authority. We assisted with that process and in the creation of the education and skills authority (ESA). We made proposals on how the ESA might be progressed and provided advice through various groups. Ultimately, all the changes must be to the benefit of the children and young people whom we serve.

3189. Our support for a regional education authority was based on the need to create an all-inclusive authority that manages an education service, is cohesive rather than fragmented, and has the legal basis to ensure that it can manage the authority effectively — that means a regional service that is locally delivered. After all, the many different areas of Northern Ireland have different needs: inner-city Belfast, for example, has different needs from rural Fermanagh. We contend that services must be tailored to meet those disparate needs and that a regional service should be locally delivered.

3190. Generally, children are at school for between six and seven hours a day for approximately 37 weeks each year. Over recent years, we have dramatically improved the outcomes for young people, but we recognise that many external factors affect schools’ performance. We must further improve educational outcomes, and that requires intervention not only in schools but on other issues. That leads us to the conclusion that a children’s services function must be developed.

3191. Since we established our position, the political situation has moved on. For the Second Stage of the Bill, the Assembly has now committed to the principles enshrined in the Bill. Nevertheless, any new authority should be all-inclusive and incorporate all sectors; it should have the legal basis to manage the service effectively, have a children’s services function, and have a local dimension to facilitate the local delivery of a regional service.

3192. Unfortunately, we see little or no mention of those issues in the Bill. Although it is important to get on with making changes — after all, four years have passed since the announcement was made in 2005 — it is also important to get them right. Clause 2(1), “Functions and general duty of ESA" states that the ESA has a duty to

“to promote, and co-ordinate the planning of, the effective provision of schools".

3193. However, it will have no responsibility for overall planning, and we see little difference between what is proposed and the present flawed system.

3194. The legislation is complex and technical, and it requires the reader to know and understand previous legislation. The Bill is a once-in-a-life-time opportunity to create Northern Ireland legislation for a Northern Ireland service, to consolidate education legislation, as was done in 1986, and simplify it. Unfortunately, that chance appears to have been missed.

3195. Following that short introduction, I ask my colleagues to comment on specific issues in the Bill. Mr Cargo will lead on employment issues.

3196. Mr David Cargo (Belfast Education and Library Board): Thank you, and good morning.

3197. As our statement to the Committee makes clear, a single employer follows logically from a single authority. However, some clauses give us cause for concern.

3198. The Education Reform (Northern Ireland) Order 1989 created the concept of the employer and the employing authority; that has caused many problems in the system over the past 20 years, and we hoped that the Bill would clarify them. However, the Bill seems to perpetuate the confusion. The ESA is to be “the employing authority", but clause 3(1) implies employer status. The former perpetuates the current problems; the latter simplifies the situation and, in effect, makes boards of governors subcommittees of the ESA under its control. There needs to be clarity on this issue and on contracts of employment and the liability associated with them.

3199. Equality is at the heart of the Minister’s agenda, yet when dealing with the transfer of staff into the ESA, that principle appears to have been set aside. Staff are to be treated differently: civil servants are given preferential treatment over board staff and teachers are treated differently from other staff in schools. That needs to be resolved before the ESA is established.

3200. Furthermore, the ESA implementation team (ESAIT) appears to have given little thought to how to minimize inequality of treatment once the ESA has been established. We are also unclear about how the qualifications that the Catholic sector requires of its teachers can be accommodated in a single organisation without giving rise to inequalities of treatment for teachers in the controlled sector. We welcome clause 11(5), which removes staffing costs from school budgets. We have long highlighted that as one of the main reasons for surpluses and deficits in the system. At present, budget management is too closely aligned to the age of teaching staff.

3201. Finally, we are concerned at the proposals in clause 11 for voluntary grammar schools to pay staff. If one of the key drivers for the ESA is to achieve economies of scale in service delivery and thereby reduce costs, it is foolhardy and inefficient to consider such proposals to be enshrined in legislation.

3202. Mr Topping: We leave the employment issue and move to the role of the ESA in providing training and advisory services.

3203. Mr Stanton Sloan (South Eastern Education and Library Board): I would like to address clause 13, “ESA to provide or secure provision and advisory and support services for schools" and, to a lesser extent, clause 19. Clause 13 covers all staff in schools, teaching and non-teaching. Ordinarily, that would mean the Curriculum Advisory and Support Service (CASS); however, boards provide a range of other support and advisory services to schools: education welfare, educational psychology, services for child protection, peripatetic services, services of local management of schools officers who work with schools and help them with budgets and human resources and others. All those services are funded centrally but are provided directly to schools, so more than 90% of boards’ budgets go directly into schools; some 60% is delegated and 30% goes to services.

3204. The class is seen by many as the mainstay, particularly because of its role in raising standards. Gordon referred in his introductory remarks to the need to raise the standards of achievement of young people all over the Province. For that reason, it is vital that there be a properly established and properly resourced support service that must be delivered locally — albeit managed regionally.

3205. It would have certain statutory powers, which, we believe, are missing at the moment. I want to highlight three main points. First, clause 13 deals with providing or securing the provision of training. There is a concern that that will lead to the commissioning of services; services would no longer be centrally funded. A regional policy is necessary for regional initiatives such as literacy and numeracy, for example. Will there be a regional service or will the ESA simply commission services from private individuals or private bodies? We need clarification on that.

3206. Secondly, clause 19 confers on the ESA the power to undertake commercial activities, and we would like clarity on whether that could be extended to schools. I am aware that, in certain areas in England, money that was held centrally was given to schools to purchase their own services or buy in services. In many cases in England, that was overturned because it was unsuccessful.

3207. In Northern Ireland, and in my own board in particular where I have talked to principals — especially of small schools — the money that they get would not enable them to partake of the range of support services or training that they need. There is potential for misinterpretation and charging.

3208. Thirdly, underachievement is something that engages us all. At the moment, the board, through its Curriculum, Advisory and Support Service and, indeed, through other services, has no statutory right to intervene in a school. We strongly believe that there should be a statutory basis for intervention when underachievement is identified in the school, either at individual teacher level, whole school level, or leadership level. Those are three key issues for the support services.

3209. Mr Topping: We move on from the support function of the ESA to the Youth Service, with which Barry Mulholland will deal.

3210. Mr Barry Mulholland (Western Education and Library Board): I want to raise two issues: the first may be considered a matter of semantics; the second is another opportunity lost. The first is youth services. Clauses 2 set out firmly that youth services are part of education, and that is welcomed by all those in the education and library boards and youth services. However, the fact that youth services are not incorporated in clause 2(2)(a), when clause (2)(2)(c) states:

“to promote, and co-ordinate the planning of, the effective provision of schools, educational services and youth services;"

3211. is causing the Youth Service some concern. It believes, and we believe, that the Youth Service is set firmly in education of which it is an integral part. Rather than separate it out into clause 2(2)(b), youth services should be incorporated into clause 2(2)(a). That would firmly set youth services in the educational context.

3212. Secondly, there is the opportunity lost. Clause 37 sets out clearly the powers of the Department to carry out inspections of educational establishments. The Education and Training Inspectorate perceives itself to be independent. However, the Bill could have legislated for the independence of the inspectorate because there is a potential conflict of interest as the inspectorate would be involved in the setting of policy and also in monitoring, inspecting, reviewing and reporting on that policy. An opportunity has been lost to establish in law the independence of the inspectorate in Northern Ireland.

3213. Mr Topping: Finally, we move to clauses 30 to 36, which deal with schemes and management for grant-aided schools, and Gregory Butler from the Southern Education and Library Board will deal with that issue.

3214. Mr Gregory Butler (South Eastern Education and Library Board): I will cover three main issues. The first relates to the timing and the establishment of schemes of management. There is an area of possible confusion when boards of governors, after 1 January 2010, operate under the existing scheme. To avoid that, we request that model schemes of management be in place at that date.

3215. Clause 34 deals with proposals to place duties on boards of governors in relation to achievement of high standards of educational attainment. That is a significant change. Paragraph 7.2 of ‘Every School a Good School’ states that:

“Governors have a particularly important role to play by supporting and encouraging staff while at the same time taking on the role of a critical friend and encouraging the school in its quest for continuous improvement."

3216. It is important that that responsibility be set out clearly in a scheme of management.

3217. The third area relates to community governors, which is in clause 35. Community governors are defined as persons living or working in the local community. Our concern is that that could be described as being suitably vague — or just vague. That description is an issue. There is also no indication about how governors are appointed, and that is a concern.

3218. Mr Topping: Those are the major issues that the Bill throws up for us. There are many other technical issues; for example, unless one reads the previous legislation and ties it together with the current legislation, it is very difficult to interpret exactly what is intended. Another issue is that the Bill is, in many places, enabling legislation: it enables things to happen. However, it is difficult for us to interpret the minds of the authors regarding what they intend to happen following the approval of the Bill.

3219. We have tried to portray in our presentation that, first, we support the creation of a regional authority. Secondly, we have listed our areas of concern in the Bill, including the single employing authority, the support and role of the ESA, youth services, and, finally, governance of the service.

3220. Thank you for listening to our presentation.

3221. The Chairperson: It is right and proper to pay tribute to the boards. One of the chief executives, Mrs McClenaghan, cannot be with us today because she retired yesterday. Gregory Butler is here today to represent the Southern Education and Library Board, but we wish Mrs McClenaghan the very best in her retirement.

3222. It is also right and proper that we place on record our appreciation of the huge amount of work that the boards have done. As MLAs, we have all had the opportunity to interact with you, to challenge you, and to have various exchanges with you over the years. However, you have carried a huge responsibility, and it would be remiss of me, as the Chairperson of the Committee for Education, not to place on record our appreciation and thanks.

3223. We welcome this opportunity to discuss the fundamental sea change in the governance arrangements of education for Northern Ireland; they will have huge implications for many years to come.

3224. We will try to work within the remit that you have given us. In your presentations, you dealt specifically with the functions and general duty of the single employing authority. We will work our way through those issues so that we do not go from Dan to Beersheba, which is, at times, how we operate. However, that should in no way preclude any member from raising any issue.

3225. There may be a typing error under “functions and general duty" because it says section 2, whereas it should be clause 2(1). In your submission, you said that there is a danger that the nature of the statutory function ascribed to the ESA will limit its ability to deliver effective service. How do you see that being rolled out in practice if and when the ESA comes into existence?

3226. Mr Topping: Thank you for your kind words about our work over the past 36 years; we very much appreciate them, and we will convey them to our staff and members.

3227. One of our reasons for supporting a regional educational authority was that we know some of the problems that we faced in managing the service over the past 36 years. One of the major problems that we faced was planning — the planning of school provision in particular — the rationalisation of schools, supporting schools through resourcing them, or ensuring that new schools were built in the right place at the right time. We recognised all those problems.

3228. When the proposal was made, we said that the new authority should have a clearly defined role in statute that would allow it to plan for school provision. Clause 2 states that ESA will “co-ordinate". That is our role, and we know the problems that we face in co-ordinating with various other sectors that have responsibility for schools provision. It is very difficult.

3229. We would like to see the responsibility laid on the ESA to plan effectively for the service in an all-inclusive authority. Schedule 7 proposes an amendment to article 14 of the Education and Libraries (Northern Ireland) Order 1986, which reiterates the co-ordinating role of the ESA rather than its responsibility to ensure that the schools estate is planned effectively. That is one of the issues that we wish to highlight.

3230. The Chairperson: Would changing that not merely reduce the number of education and library boards without radically changing the function of an organisation to deliver the intended aim: raising standards?

3231. Mr Topping: That is a good question. There is a danger that all the Bill will do is get rid of five boards and one or two other bodies. Reading between the lines, and taking into account some of the discussions that we have had, leads us to conclude that the intention is not to get rid of five boards and a few other bodies but to reform the service radically in order to create efficiencies and to put school improvement as the key element on the agenda.

3232. We support that; however, we have reservations about how it might be achieved and the legal basis underpinning it. We welcome the ESA’s intervention role; but, as one of my colleagues said, we feel that that intervention should be strengthened by legislation

3233. The Chairperson: David Cargo made what I thought was a worrying comment to the effect that the ESA makes the board of governors one of its sub-committees.

3234. We are told that boards of governors will have control and new responsibilities, and Mr Butler mentioned the reconstitution of board of governors, but how do boards of governors feel about being sub-committees of a very centralised, bureaucratic organisation that holds all the control and power?

3235. Mr Cargo: We have tried to highlight the fudge at the heart of the Bill. When we were first engaged in discussions on the Bill, there was a possibility that each of the boards would speak to its own vested interests and say that it is important that it stayed in Belfast, Ballymena, Armagh or wherever.

3236. We chose not to do that, and we engaged fully with the Department and the then Minister. We asked them to build something better than we had, which had the potential to become fragmented. There has been a fudge in the education system between, apparently, giving boards of governors more power — leading to fragmentation of the system — or centralising the service around the Minister and the Department, which would lead to greater coherence.

3237. We were looking for clarity in the Bill about the direction in which we were heading, but we believe that the Bill has ducked the core issue. 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.

3238. If the ESA is to be the single authority, it would be the employer, and boards of governors would become its subcommittees; however, if that is not the direction in which the Committee or the Minister want to go, the Bill must make it clear whether alternative arrangements are available. At present, the Bill is neither one nor the other, and it replicates the difficult situation in which education and library boards have to fund legal cases — when they are settled — on behalf of the maintained sector. However, we have no role in trying to moderate or to play an intervening role in ensuring that best practice is followed. That is no criticism of the CCMS; it is a reality of the present fudged system.

3239. For the first time in a generation, we have a Northern Ireland Bill for Northern Ireland’s system rather than a pick-and-mix Bill from England that we would have to adapt. We hoped that the Bill would have clarified those issues and provided clear policy directions.

3240. The Chairperson: Woolworth’s has closed down, so we thought we had done away with the days of pick-and-mix; perhaps that is not the case.

3241. From what Mr Cargo said, even with the system that we have had for 36 years, there has been no real clarity about employers and employing authorities. It seems that we are heading into the abyss. The Northern Ireland Commission for Catholic Education and the GBA say that they want to be employers. Mr Cargo talked about the ESA being the single employing authority and expressed the concerns of education and library boards about how it would operate under the draft legislation.

3242. The Committee should take legal advice on the employers’ status vis-à-vis the ESA and boards of governors, because the more we delve into this and ask questions, the more confused I become. I just do not know sometimes where it is all going, and there seems to be no clarity. The issues are shrouded in mist.

3243. The education and library boards have had to administer all that for the past 36 years, and all we would be doing is transferring that responsibility to Gavin Boyd and the ESA. If, however, that arrangement were to be challenged, we would have a problem. Then we would see who would pick up the legal fees and the fall-out as a result. Is that a fair comment?

3244. Mr Topping: We are saying two things. First, if we are to have a regional education authority, it makes sense to have a regional employing authority or a regional employer. That is logical. If we do that, however, we must have clarity about the relationship between that authority and the boards of governors on employment terms.

3245. The Chairperson: I will now open the discussion to members. There is so much that we have to cover, and I want to give as much time to this important issue as possible.

3246. Mr Elliott: Thank you very much, gentlemen. The Chairperson is right that there is so much to go through. David raised the issue surrounding the employment authority, and that is not the first time that that point has been raised with the Committee. Indeed, as has been said, it seems to be getting even more confusing.

3247. The Chairperson’s expression of thanks for all the work that the boards have done over the years sounded almost like a swansong. I do not want it to sound as though this is the last time that we will hear from the boards or lobby them.

3248. The Chairperson: No; it will not be the last time that we write to them. [Laughter.]

3249. Mr Elliott: There is clearly a lot of work to be done before the ESA comes in, if, indeed, it ever does; I put down that marker, given the way things are going and what the Committee has heard. How are the boards going at the moment? I understand, from talking to staff, that boards have some concerns about their future. The boards thought that they were planning to move on fairly soon, but that has not happened.

3250. Gordon, you said that you find it difficult to interpret what is in the minds of the authors of the Bill. The authors of the Bill sit at the end of this table every week, and we cannot interpret what is in their minds either. It would be much easier if we could, but we cannot. Those people are sitting behind you, and we will hear from them later.

3251. Let me be blunt; we keep being told that it is not the Bill’s intention to do this or it is the Bill’s intention to do that. However, legal people tell us that we can deal only with what we see in front of us — if something is in the Bill, it is in the Bill; if it is not, it is not. The difficulty is that we cannot go on impressions or what we believe the situation should be.

3252. I do not know whether you can help me on this, but one point that has not been touched on is the huge financial savings that we are told will be generated by the move from five boards to the ESA. I am concerned that some autonomy will be lost. No disrespect to David or Gordon, but it is often rural communities — and the Southern Board and, particularly, the Western Board — that lose out when things are moved to one central body. Do you think that real savings will be made, and, if so, where do you see them being made; in administration, perhaps?

3253. Has there been any discussion of how the transfer of staff from the boards to the ESA will evolve?

3254. Mr Topping: Mr Elliott has asked three questions. Each situation is different, so would you like us to give a brief round-robin update of the state of play in each of the boards?

3255. The Chairperson: Yes, but I would like something to be clarified before we move on. Gordon, am I right in saying that the existing boards could not be reconstituted if the ESA is not introduced as of 1 January 2010? The life of the boards has already been extended by six months, and departmental officials have told the Committee that the intention is that the ESA will come into effect on 1 January 2010 but that it may be 1 April 2010. There may be legal issues around that.

3256. Mr Topping: We have asked that question, but we have not been given a specific answer. I know that my chairman asked that question of the Minister at the last meeting of the chairs of the boards.

3257. The Chairman: We could perhaps ask the Department that question.

3258. Mr Topping: You might want to do that. However, you are right that the life of the boards has been extended by six months until the end of December.

3259. Would you like us to start that quick round-robin update?

3260. The Chairperson: Yes, that would be very helpful.

3261. Mr Mulholland: We are working in a very challenging environment, but I would not describe it as a crisis; our service delivery is nowhere near crisis level. The main difficulty that the Western Board is experiencing relates to the vacancy-control policy and the fact that it has been operating since late 2006. We are bringing in arrangements to replace staff who are moving out of the service with new temporary staff or staff who are acting up. The staff have responded extremely well, and we continue to deliver our services at the highest level possible.

3262. One of the concerns for staff in the west is the Belfast-centric nature of jobs that are being advertised in the ESAIT. Up until yesterday, all the ESAIT jobs were based in Belfast. The ESAIT has tried to arrange for staff to work remotely for one day a week or so, but that still requires post holders from the west to spend an hour and a half travelling to and from Belfast in order to get to work. That leaves them feeling disadvantaged and that they are unable to apply for jobs in ESAIT, the organisation that is starting to form the new ESA, which will, therefore, leave them disadvantaged in the future. However, Western Board staff are certainly rising to the challenge, and they are continuing to deliver services.

3263. Mr Sloan: Chairperson, you commended us for the work that we have done. I am sure that my colleagues will want to join me in commending our staff for the outstanding work that they have done in extremely challenging and difficult circumstances.

3264. However, the South Eastern Board would present a slightly different picture, because we are close not only to the ESAIT’s headquarters, but also to those of NILA. NILA has its own administrative staff, and, from today, is a free-standing authority.

3265. The South Eastern Board is still rising to the challenge, but I must tell the Committee that there is a human cost. Fewer people are doing more work, and I see what that costs. Staff are doing that work well and they step up to the mark day after day, but I fear that, in years to come, we will all be held to account for the human cost.

3266. Vacancy control is a major factor. We can, of course, replace staff, but we cannot replace their skills. When staff go, we bring in agency or temporary staff who require two, three or four months of training, particularly in areas such as finance and human resources. That presents a challenge, and that is when other staff step up to the mark. However, our board has lost something — more than 40% of our staff are now on temporary contracts of one form or another. Some are agency staff, while others are acting up to higher posts — sometimes they act up, and then move up again and again.

3267. That is also an issue because if people are acting up to two or three levels above their current grade, I understand that, under The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), when they move to the ESA they will revert to their substantive grade. That touches on another question that Mr Elliott asked. Some of those staff have been doing jobs two grades up for the past two or three years, and they have clearly developed expertise. They are moving out of the education sector because they have worked at that higher level and are attracted to substantive posts in some other authority.

3268. There are challenges, but, like Barry said, we are not in crisis. However, I am concerned about the well-being of staff.

3269. Mr Topping: Gregory will describe the situation in the Southern Board.

3270. Mr G Butler: Not unsurprisingly, our situation is quite similar to the situation in the west. A vacancy-control policy is in place and has had an impact, but because many of the jobs are based in Belfast or the greater Belfast area, we have not experienced the same loss of staff as the South Eastern Board or the Belfast Board. Therefore, the impact of vacancy control is a particular issue.

3271. Our board is also in the fortunate position of being in an area that has a rising population, and it will continue to rise considerably over the next few years. That means that our budget is very good, which affords us some flexibility that other boards may not have because the populations that they serve are declining.

3272. For senior staff in the board such as myself, travelling is not an issue, but it is an issue for administrative staff whose families live in the area and who would have difficulty meeting the cost of any move. Therefore, travel and the future location of jobs are particular concerns for staff in our board. As it develops, ESA must ensure that those people who have given very good service for the past 20 or 30 years are not disadvantaged by the relocation of jobs away from their area.

3273. There is a positive aspect in that our board is operating very well at present. We have a number of acting-up posts, but the overall position is very good. However, there is a major concern about the long-term position, and, from a morale point of view, that is sometimes a very difficult issue.

3274. I thank the Chairperson for his comments about Helen McClenaghan. I will pass them on to her when I see her next week. We bid her farewell yesterday. She did a lot in the board, but she has left a very solid ship, and Tony Murphy will take that forward and we will continue to progress.

3275. Mr Cargo: Belfast is, I suppose, used to providing services in challenging circumstances. We did it for 30 years during a period of quite difficult conflict in the city. In more recent years, we have had our challenges, and we have continued to meet them. So, the services continue to run. There is no service diminution.

3276. I echo my colleagues’ comments about vacancy control, and I will highlight two issues. Very often those caught in the vacancy-control arrangements are young staff who are, perhaps, starting out on careers and attempting, in even the current difficult circumstances, to get rented property or to get on the mortgage ladder. However, because they are temporary ? albeit temporary in permanent positions, because we do not see those posts going anywhere, even under the ESA ? they are unable to access some of those services, and that is a particular difficulty for young people in the current situation.

3277. The second issue is certainly a concern for us in Belfast. We have just transferred 1,000 staff among the five boards to NILA. We know the amount of work that that has required, which is in addition to everyone’s duties. We have 50,000 staff to transfer to the ESA in a very short time. With the volume of work associated with that, I think that it will be extremely challenging to continue to run the existing high-quality services and provide for the transfer of assets, staff and everything else to a new organisation in a very short period of time.

3278. Mr Topping: From our point of view, there are two issues. The first is that uncertainty creates morale issues, and, unfortunately, for three years now there has been uncertainty. So, our message would be: it is important to get it right, but it is important to create certainty in the system. Secondly, like the other boards, 30% of our staff are in temporary positions. That is not sustainable in the longer term.

3279. If I may pick up on the other two questions. First, an outline business case, which the Committee has probably seen, demonstrates savings of, I believe, £20 million in the third year. We have no reason to dispute those figures. It is obvious that, when organisations are brought together, the number of people managing that service will be automatically reduced. For example, if there are five of us and only one is needed in the longer term, there are obvious savings.

3280. However, I would guess that the main savings will be made after the creation of the ESA, because, at that stage, services will be reorganised, and, again, that will bring management savings. That creates all kinds of challenging issues that need to be addressed and managed. However, we would certainly concur that there will be financial savings because of the way in which the system moves.

3281. With regard to staff transfer, if the ESA is formed and created in exactly the same way as the Library Authority, I would have to say that, up to this point, that was done very smoothly, and staff were very satisfied about the way in which they were consulted and dealt with. However, the ESA throws up issues that the Library Authority perhaps does not.

3282. Gregory mentioned the major issue, which is location. One must remember that 70% of our staff are women, so there is a gender issue in all of this. They are working where they are working because their families are close by. I think that centralising services, as distinct from regionalising them, will cause some problems, and will, I would guess, require significant discussion and negotiation with staff.

3283. Those are the types of issues that Mr Elliott’s questions throw up.

3284. Mr Cargo: I would like to reinforce the issue that we highlighted in the initial presentation, which concerns equality. Because of section 75, we are in a different situation as regards how staff are transferred than we perhaps would have been in the past. We are concerned that, because certain processes were used in the past for certain types of staff — for example, civil servants who were seconded into a new organisation — people will say that that should continue because that is the way it has always been done. If we are moving to create a new organisation, every member of staff needs to be placed on the same footing.

3285. There is a precedent within the education and library boards. In 1997, we transferred staff to further education, where there was a number of posts in our central headquarters. We could have operated a secondment arrangement because the board was not going away. We trawled those jobs in advance so that people were defined as transferring on a particular date to the new organisation. We would emphasise that it is important that no group of staff anywhere feels either advantaged or disadvantaged by the arrangements. We fear that, at the moment, that approach is not being taken. Therefore, the sound basis of equality for staff transfer will be diminished.

3286. Mr Topping: The recruitment, retention and voluntary severance (RRVS) paper, which is currently out for consultation, is pertinent to the discussion. I am sure that you are aware of it. Staff are very concerned about that, mainly because of the reasons that David has outlined and also because the criteria that are being used in that paper to allow staff to apply for jobs in the second tier, and probably the third tier, are such that they exclude staff from applying, rather than include them. We have made the case that any recruitment procedure should be inclusive, rather than exclusive.

3287. The Chairperson: We will ask the departmental officials to comment on that when they appear before the Committee later.

3288. Mr Elliott: Savings from middle management are estimated at 25%. Is that reasonable and practical in real terms, especially considering the inflation costs of wages? That will probably mean a reduction in staff of around a third.

3289. Mr Topping: I do not think that we can answer that, because it depends on how the organisation takes forward its structure.

3290. Mr Cargo: As Stanton pointed out at the beginning, although the current funding arrangement includes around 60% of funding that goes directly to schools, many of the other services that we provide, such as the psychology service, educational welfare, transport service and school meals, are provided directly to schools — those are all provided directly to children.

3291. The budget of each board’s headquarters is £5 million, so £25 million will be saved from the headquarters alone. In the first instance, any transition will include those savings. As Gordon said, although we have no reason to dispute the business case because it has been set out by the ESA and by the Department, as we see it at the moment, and given that not much redesign of services is proposed in advance of the establishment of the ESA, most of the burden will fall on the headquarters’ services. In total, that is a figure of £25 million.

3292. The Chairperson: What has been the interaction and interplay between the ESA, in its current form as an interim arrangement, and you as working chief executives who are responsible for your boards? Are you happy that the ESA, in its current form, has taken a hands-on approach and that you have a working knowledge and understanding of what is happening?

3293. The transition from the library boards to a single service seemed to go reasonably well, and I suspect that you had a close working relationship with those involved in that transition. Is that being replicated with the transition to the ESA, or do you feel as though, as Tom said, there is a swansong and that the ESA, in its current form, may say that the boards will not be in existence from a certain date and that, therefore, any advice that you might give is of little relevance?

3294. Mr Topping: Different Departments do things in different ways, and the Department of Culture, Arts and Leisure has certainly worked in a different way from the Department of Education. The five of us who are present today all sit on a transition board with the Department and the ESAIT, and we have contributed to those discussions. As well as that, all the staff who have been involved in working groups and various kinds of planning groups have said that they appreciated the communication that has gone on.

3295. However, the expertise that we have has perhaps not been fully utilised. We have seconded staff to the ESAIT; for example, as you know, my chief finance officer has been seconded, and other boards have also contributed in that way. When it comes to the main business of the ESA, which is the educational function, I think that there will be a demand on our staff to provide expertise and advice — I hope that we can meet that demand.

3296. Mr O’Dowd: I have read the Bill on several occasions, and I do not see it stated anywhere in it that the headquarters of the ESA will be in Belfast. That is one area of concern that can perhaps be clarified today. It does not state in the Bill where the headquarters will be, and, given recent reports about decentralisation from Belfast, I might conclude that it will not be in Belfast.

3297. I understand that there is a need for careful liaison between staff representatives, the Department and the ESA to ensure that there is consultation with staff on transfer, etc. As we have seen in other major developments — [Interruption.]

3298. I am sorry, Chairman, I can not hear a word that I am saying.

3299. The Chairperson: Could we have silence, please?

3300. Mr O’Dowd: We have seen with the transfer of staff in the Health Service that that can be managed, but it must be managed carefully.

3301. David, I will not quote you directly, but you said that there was a possibility that boards of governors would become subcommittees of the ESA. Would that be a bad thing or a good thing?

3302. Mr Cargo: I hope that John was not precluding Belfast from the discussions on the implementation of the recommendations of the Bain Report on the relocation of public sector jobs, or precluding a fair equality assessment.

3303. Mr O’Dowd: There speaks a Belfast man.

3304. Mr Cargo: I got the impression that anywhere but Belfast seemed to be the conclusion. My staff would be gravely concerned if that were the case, as would the board members.

3305. Mr Topping: On the other hand, at least four of us here support you on that. [Laughter.]

3306. Mr Cargo: Unfortunately, that has been part of the problem over the past number of years, in relation to funding and all sorts of things. What I was trying to point out was that there is a logic to the current single authority having employing functions. It is logical that there should be an employer.

3307. Before 1989, boards of governors were originally management committees of the board. The 1989 Order changed that function, because it established local management of schools. In our view, when establishing that, the Order did not clarify the relationship between boards of governors, the employers and the employing authorities. We had hoped that the Bill would clarify that.

3308. It is not for me to comment on whether it is a good thing or a bad thing. In our opinion, at the moment, the Bill continues the fudge that was evident in what was not a particularly good piece of legislation — the 1989 Order. We saw the Bill as an opportunity to clarify that, and to get a clear policy direction on how the service would go forward. We see logic in having a single employing authority, and that has obvious consequences for governors. We accept that not everyone favours that direction, but the Bill needs to provide clarity so that it does not perpetuate what, in our opinion, is a very inefficient fudge in the current legislation.

3309. Mr O’Dowd: I want to tease the matter out. Are you referring specifically to the employment role rather than the day-to-day running of the schools? Is that the focus of your concern?

3310. Mr Cargo: Yes; one part of the Bill seems to infer that boards of governors would operate under the direction of the ESA, whereas other parts seem to infer that boards of governors would have maximum supported autonomy, which was one of the original concepts. We feel that the Bill, in its current format, does not clarify that matter sufficiently but, in fact, perpetuates a fudge that was created by the 1989 Order and that was not helpful in the situation. That needs to be clarified.

3311. It is a political decision as to whether to select autonomy and, therefore, potentially greater fragmentation, or to select cohesion and, therefore, potentially greater centralisation. The Bill must clarify that position before it becomes law. If it does not, you will end up in the situation in which we found ourselves whereby the position is not clear. Moreover, the issue is further compounded by the fact that the 1989 Order says that we can go into schools only by invitation. It is testimony to the skills of our officers that we have never been refused entry to a school. However, the Bill must clarify those issues and outline clearly the direction that the political system wants education to take.

3312. The Chairperson: The Committee is at a stage where it is focusing on particular clauses. Clause 8 says that the ESA cannot lawfully refuse to put into effect any proper decision of a board of governors on employment matters. Do you think that a model employment scheme and guidance, an independent appeals system or some regulation and control built into the Assembly and the institutions here would be sufficient to address the issues of concern? The Committee has asked that question of the CCMS, the Catholic bishops and the GBA. At this stage, we still do not know who would represent a school legally in the High Court in the event of a dispute.

3313. Mr Cargo: I have no legal competence. As Gordon said, part of the problem is that the Bill must be read in conjunction with other legislation. Other legislation provides the Department with powers to intervene. For example, article 158 of the 1989 Order currently allows it to intervene. That is why we mentioned a lost opportunity. We had an opportunity to create an education Bill that combined all the system’s powers, responsibilities and entitlements. I do not have an opinion on whether that would sort out the situation.

3314. The Chairperson: How different is article 158 to article 101 of the Education and Libraries (Northern Ireland) Order 1986?

3315. Mr Topping: It is much more wide-ranging.

3316. The Chairperson: That is new to the Committee. Part of the problem is that there are 11 other pieces of subordinate legislation. It is like an onion; one continually peels, and people’s eyes water every time it is brought into the room. Article 158 is another of the Department’s current powers.

3317. Mr Topping: I think that article 158 is the amendment to article 101. The Department could, perhaps, clarify that matter.

3318. The Chairperson: Are you saying that article 158 and article 101 might be the same?

3319. Mr Cargo: Article 158 contains greater powers than article 101.

3320. Mr Topping: The answer to many of the questions being asked is that it depends on what type of education system one wants. It is a choice between a service that is totally delegated with autonomy in schools or one that is centrally controlled. That is a decision that the Committee and the Minister must make.

3321. The Chairperson: As practitioners who came through some 30 years of difficulties and challenges, what type of service do you think is best for education? Please remove us politicians from the equation, as people are fed up with our meddling and interference. I realise that opinions may differ, but it would be valuable to hear if you feel that one is preferable to or has advantages over another.

3322. Mr Cargo: I have 36 years’ experience in the education service, 25 years of which have been served in education and library boards. I may be straying into the area of vested interests, but one of the strengths of the board system — which I have seen in Belfast and in other areas over the years, and during very difficult and challenging times — is that is all interests are representing in one room. Therefore, if an issue comes to the floor of the board, vested interests cannot rule supreme, and there is a moderating influence on all the various sectors.

3323. We felt that one of the reasons for moving to a single authority was that all the vested interests would be represented under it and nowhere else. However, the Bill appears to give vested interests — and I use that in the best sense of the word — separate bodies to represent them. Therefore the cohesion that we have valued in the system appears to be in danger of fragmenting. My fear, as I approach the end of my career in education, is that we will end up with a more fragmented system with less opportunity to drive standards up.

3324. Mr Topping: I agree with that, but I would go a little further. Some people have called me a control freak, which is, of course, completely wrong —

3325. The Chairperson: Gordon I could never call you that —

3326. Mr Toping: I support delegation to schools because decision making should be given to those who must pay the consequences. The present system is a mix-and-match: some responsibility is delegated and some is not. Therein lies the difficulty, because some of those who make decisions do not have to pay for the consequences of those decisions.

3327. We had hoped, in line with the concept of maximum supported autonomy — or accountable autonomy as it now is — that functions would be delegated to schools allowing them to make decisions and be accountable and responsible for them. The role of the ESA in monitoring and co-ordinating that will be very important and it must ensure that those schools are held accountable for whatever they achieve. I do not know whether anyone else would agree or disagree.

3328. Mr Sloan: To put it in a nutshell, of the £250 million budget that the South Eastern Education and Library Board receives, £160 million is delegated to schools under local management of schools. We are held accountable for the whole budget, yet we have no control over £160 million of it. I agree with Gordon: if you are going to delegate, the money and the accountability must also be delegated.

3329. The other issue relates to what boards actually do, although I do not know whether my colleagues will agree with me on that. I am a firm believer that form should follow function. The purpose of boards is to raise educational standards; if we get that right, the structure can be designed around it.

3330. It is still a cause of great personal regret that there are no educationalists on the implementation team to drive educational policy. That policy should be driving the structures that are to be put in place and what is, or is not, delegated.

3331. Mr Mulholland: I agree. There are concerns about the potential for fragmentation in the service. With regard to accountable autonomy, the ESA’s role in monitoring what is going on must be matched by a power to intervene when it sees something inappropriate that impacts on standards.

3332. Mr G Butler: Considering the situation pre-1989, there was an issue concerning the need to build the capacity of boards of governors. Although there may be a large capacity in certain areas — and the strong will survive and the weak will go to the wall — in some rural areas there are problems with developing supported autonomy and getting the right people to implement it. There is a difference between fragmentation and centrality, and that is not an easy circle to square.

3333. Over the past 30 years, support from the boards has been indispensable in making the system work; the degree of hand-holding that goes on to stop people going over the precipice cannot be underestimated. Support services have helped. A balance must be struck between providing support and capacity building, which is not a cheap option. In order to develop the skills of governors and of boards of governors, one must invest in people at grass roots. At the same time, one must develop a central vision for education that everyone can share. That is not a cheap or an easy balance to strike.

3334. The Chairperson: Other members will probably raise this matter, but I wish to put it on the table before inviting questions from them. As chief executives of the boards, you have had the primary responsibility for the controlled sector. It is a huge issue, so I want to spend some time on it. Speaking as a member of the DUP, not as the Chairperson of the Committee, the controlled sector is important to us, and the proposals for it present a huge problem that must be satisfactorily resolved.

3335. Mrs M Bradley: I welcome the witnesses, and I associate myself with the Chairperson’s remarks about the work of the boards. For many years, I served on the Western Education and Library Board, so I know that it has always done excellent work and stood by schools, all of which, maintained and controlled, will miss its services.

3336. I too have grave concerns, which I have raised in the Committee, about the situation of governors. I am deeply concerned about getting current governors to return. Schools cannot operate without their boards of governors.

3337. I am concerned too that responsibility for youth services will remain with the Department of Education. They should not become a separate matter; they should remain attached. Gordon, are you confident that the ESA, as it is proposed, can deliver the enhanced services?

3338. Mr Topping: That is a difficult question, because we do not know exactly what the ESA will look like; the process is evolving. Although we support the establishment of a regional education authority, we know the flaws in the system; we have worked that flawed system for 36 years. Whatever the ESA may look like, we hope that it is better than what we have now.

3339. We have highlighted some of our concerns about aspects of the Bill, and we hope that they can be amended. However, we do not know whether they can be changed, because all kinds of interests are at play. Nevertheless, once all those matters have been resolved and consensus has been reached, we hope that the structure and organisation of the ESA will be better than what we have now.

3340. Mr Lunn: I share Mary’s concerns about the ability of schools to attract governors in future, not because of the rules of employment but because of the more onerous duties that they will have to undertake and the training and, perhaps, qualifications that they will need. Put simply, boards of governors may be sued without being able to rely on the ESA to pick up the bill.

3341. I hesitate to cross swords with 150 years’ experience.

3342. Mr Topping: That is only what it looks like.

3343. Mr Lunn: I pitched it low.

3344. Mr Elliott: Which of the witnesses did you mean? [Laughter.]

3345. Mr Lunn: The heading of clause 3, “ESA to employ all staff of grant-aided schools", is the only reference that I can see to the ESA being the single employing authority. I know that you have done your best to explain it to me, but try again. What is the difference between an employing authority and an employer? Given that the ESA will undertake both those roles, how could it not be liable for the bill for a successful action that a teacher took against a school? How could the bill be delegated to the board of governors?

3346. Mr Topping: There are two questions there. One relates to the recruitment and expertise of governors, and Mr Sloan will deal with that. The other question is about employing authority versus employer, and Mr Cargo will deal with that. I look forward to hearing the answers. [Laughter.]

3347. Mr Sloan: We have 80 years’ experience. I want to place on record the commitment of unpaid governors. I have met and worked with many governors, and their commitment and support to staff, principals and pupils is immeasurable. I am sure that you all agree.

3348. Many governors are aware that the ESA is being introduced and of potential changes. We are beginning the process of recruiting again, and we are writing to bodies; however, it is difficult to be precise about what the response will be. I have been to 10 to 15 schools in the past weeks, and governors raised concerns about where they will stand in relation to a single authority and what support will be given to them. Governors want to know whether they will need someone with an accountancy or legal background on their board, for example. A great deal will be lost if boards of governors become less caring and more mechanistic.

3349. Clarification on the recruitment and expertise of boards of governors goes back to the employing authority and the employer role and what they will pick up. At present, education and library boards indemnify boards of governors. I love the phrase “cavalierly disregard", although it is not used in legislation now. Provided that boards of governors did not “cavalierly disregard" the rules, the education and library boards would support them. That needs clarification.

3350. Mr Cargo: Since 1989, we have been asking for clarification on the differences between employer and employing authority, but it is difficult to get legal clarification. There is, perhaps, a slight misunderstanding. The problem with liability goes with who holds the contracts of employment. With regard to managing risk and liabilities in the current system, one always tries to minimise the possibility of having to pay out large sums of money for the sins of the boards of governors or individual members of a board.

3351. In certain sectors, education and library boards are liable for paying out the money, but we cannot intervene to ensure the highest standards of practice.

3352. Mr Lunn: I got that earlier.

3353. Mr Cargo: We were hoping that the Bill would remove the confusion and that, as single authority, the ESA would be the single employer. Therefore the nuances and confusion of the present legislation would be clarified and boards of governors would be in a new relationship with the single body. It would be as it was pre-1989, and the boards of governors would, in fact, become sub-committees of the ESA. The authority would not only have the liability — and that would be clear — but it would have responsibility to ensure that the highest standards of best practice were employed in all boards of governors.

3354. In certain circumstances that may appear draconian; however, it is a logical follow-on from a single authority. If that is not the political will, then you are moving onto the issue, as Stanton said, of the importance of boards of governors.

3355. It is important that we seriously question the composition of boards of governors before the Bill is enacted. Important though boards of governors are, we are putting almost £1 billion of public money into the hands of volunteers. Those volunteers have many strengths, but if we are to give them greater responsibilities, there are issues around the composition of boards. Where autonomy is allied with accountability, that needs to be clearly thought through before a Bill is enacted under which it will be OK to heap more on volunteers. Although those volunteers invest innumerable hours in the system, there may not be — or, as Gregory says, in certain rural areas there may never be — the quality of governors required to do what the system wants them to do.

3356. Mr Lunn: Can I take it from that that you do not have a problem with the liability question? Does the Bill make it clear who would accept liability?

3357. Mr Cargo: It appears to be clear by default. In such a situation, I assume that people would co-join the board of governors and the ESA. Therefore, in certain situations as a last resort, the ESA, as the public body, would pay. We should be more proactive and give the employing body responsibility and accountability for ensuring the highest standards of practice. That would minimise liability in certain situations, which cannot be done at the moment.

3358. Mrs M Bradley: Will there be a weakness in the system if we wait until all the changes come in and then try to bring in new governors? Should we not have new governors applying now to be trained and brought up to the required standard? I have a feeling that many of the governors already in place in schools have served for several years and do not want to serve again. What happens if a school cannot get enough people at that late stage?

3359. Mr Topping: That is exactly what we are trying to do: we are trying to widen the expertise and we are alerting potential governors to the fact that the role is very wide and will become wider. For example, when we write to nominating bodies, which we have to do under present legislation, we alert them to the sort of expertise that might be valuable on a governing body. That does not necessarily mean that we will get everybody we would like on all governing bodies. That is part of the issue that you raised and part of the issue that we have to face. It comes back, I think, to the point that David made: how do we ensure that those people are well trained and up to speed with what is going on? That is a massive task because there are thousands of governors.

3360. The Chairperson: The Northern Board in particular is concerned that the schemes of management are not fit for purpose. That is why it would be helpful if we could see what was proposed as an off-the-shelf scheme of management for the ESA; at present, we do not know if that even exists. That is something that perhaps we should ask the ESA.

3361. Mr Topping: That is the timing issue that Gregory mentioned.

3362. Mr Mulholland: One school might use an off-the-shelf scheme of management and another devise its own. The same governor could serve on the boards of two schools that operated two different schemes of management.

3363. Mr Lunn: I ask everyone this question, but I have been waiting for you guys to come along because I am interested in your view. Members are sniggering because they know what I am going to say. You have the experience of operating boards that are composed in a particular way. Is it desirable for the ESA to be composed of a governing body dominated by local councillors?

3364. The Chairperson: When is your next board of governors meeting, Gordon?

3365. Mr Topping: I do not know why I sat in the middle. [Laughter.] We have councillors on our boards at the moment. As the Committee knows, 40% of our boards consist of elected representatives. I think that David said that we support the composition of our boards 100% because they contain all the stakeholders in different proportions.

3366. Over the time that I have been involved, party politics has come to the fore only very rarely; what does come to the fore is community politics, and interesting alliances have formed to tackle problems. I hope that that could be the model for the ESA. Stakeholders should be around the table so that they can influence things and work together in the spirit of partnership for the benefit of all the young people that they serve.

3367. Mr Lunn: The difference is between 40% and a majority of one.

3368. Mr Topping: I appreciate that, but I do not think that the principle changes.

3369. Mr Cargo: I concur with that view. The balances are less important than the fact that all the interests feel that they have a representative voice in the decision-making body. It may be fashionable to think of smaller boards, and those could work in certain circumstances; however, we said from the outset that the education and skills authority is a regional service locally delivered. The local dimension in education is crucial in driving up standards and sustaining communities across the region.

3370. It must be ensured that the people who serve centrally can also bring a sub-regional dimension into discussions. When I came to Belfast, I thought that there would be cohesion, but Belfast is made up of a series of urban villages. We have strength in relation to our decision making because different political parties are represented and we have people from different parts of the city. We also have stakeholders of the main Churches that represent the various parts of the city. Furthermore, there is a microcosm of the users of the service who come from right across the city. That strengthens the decision-making process.

3371. Mr Lunn: There will be a bigger number and a smaller area. At present, the ESA will represent the whole of Northern Ireland with a maximum of 12 members — seven of whom will be local councillors. Where is the scope for other interests in those other five people, who, presumably, include the chairman?

3372. Mr Cargo: Twelve is rather small for the range of responsibilities and the amount of money and assets with which the ESA will deal.

3373. Mr Lunn: You do not seem to have a problem with the fact that there is a majority of local councillors; you are a major disappointment to me. [Laughter.] I will have to go back to the bishops. [Laughter.]

3374. Miss McIlveen: My questions are on two areas. The first, primarily, is directed to Gordon. Being a control freak is no bad thing — it is a positive trait that I sometimes see in myself.

3375. Mr B McCrea: What a good job Hansard does. That will be used on countless occasions.

3376. Miss McIlveen: In reference to clause 13, you mention receiving Charter Mark status for a curriculum advisory and support service and for innovative models of delivery. It is right that you should be proud of that. The question is in and around best practice and the lack of a comparator — for want of a better word — for the ESA. How can best practice be delivered?

3377. Mr Topping: Charter Mark is a quality award that is based on customers and the service and delivery that they receive. We have tried to ensure that our service achieves maximum customer satisfaction, and we have systems and procedures that are externally assessed to demonstrate that.

3378. It is important that single organisations develop a culture of continuous improvement. To do that, one needs to benchmark one’s service against where one started from so that, each year, one improves on pupil outcomes, customer satisfaction or any other measure. It is also important to benchmark one’s service against others. For example, the education service is trying to benchmark itself against the best in the world through the programme for international student assessment (PISA) results. I do not see any reason why the ESA should not look at other countries and services to ensure that the service that it delivers is at least of the same quality as elsewhere. The same principles of customer orientation and continuous improvement apply whether there is a single body or five or more bodies in a region — it is important to demonstrate year-on-year improvement.

3379. Miss McIlveen: Are there standard performance indicators across all the boards?

3380. Mr Topping: There are some standard indicators in the resource allocation plans, the work that we are set by the Department and in its strategic plan that all the boards deliver. There are other indicators that each board uses to measure itself year on year, because each area is different.

3381. Mr Sloan: I agree with Gordon. One of our strengths is our sub-regional structure; one size does not fit all in Northern Ireland. Our sub-regional structure is made up of five boards, which means that each can see what the others do and can adopt best practice from them. There is a great deal of co-operation and cross-fertilisation. If the sub-regional structure is properly constituted by the ESA, that co-operation could be maintained; however, it will not work if there is only one board and, as someone said, if ideas are cherry-picked from England. Oscar Wilde said that Britain and America are two nations divided by a common language: the culture in England is entirely different from that here and we have entirely different needs. Something must be built in locally that allows the boards in different areas to learn from one another instead of having exactly the same thing everywhere.

3382. Miss McIlveen: In his submission, Gordon Topping said that, with regard to clause 13, the details were sufficiently vague as to be able to offer only limited comment. What would you like in clause 13 to strengthen it?

3383. Mr Topping: We were saying primarily that there will be a tension between what is delegated to schools, what is held centrally and what is held locally. We are concerned because we do not know how the delegation will be done. For example, every school needs literacy, so that will have a particular form. Will responsibility for that be delegated to schools, which can buy their own advice? Will it be part of a local dimension or will it all be centralised somewhere? How will responsibility be divided in areas where there is a special need or a minority subject? The tension is whether to delegate the money for those services to schools, in which case the ESA will have no control; hold the money centrally, in which case one can dictate exactly where the resource goes; or mix and match so that some of the resource is delegated and some of it held centrally.

3384. That is the crucial tension between central support, local support and school discretion. That is what we meant when we referred to that clause.

3385. Miss McIlveen: What will be the future of the controlled sector? I am mindful of the comments made in previous submissions from the Catholic bishops. They spoke about a single employing authority and the erosion of ethos. I want you to develop the concept of ethos in the controlled sector. Also, the Southern Board referred to the ownership body. Will you comment on that, too?

3386. Mr Sloan: Gordon mentioned that the ESA seems to represent a move from five authorities to one. Our concern is that the parity of support for sectors is perhaps not as it ought to be. I speak from the South Eastern Board’s perspective, and, as a single board, we have been extremely careful to ensure that we never supported any particular sector more than another. All the services that we provide, including Curriculum Advisory and Support Service (CASS), special education, welfare and maintenance, are for every sector, other than perhaps the voluntary grammar and the grant-maintained integrated sectors, which are the responsibility of the Department. We have never promoted any particular schools.

3387. The important issue of support bodies for the controlled sector must be addressed. How exactly that is done is still up for discussion. At one stage, the controlled sector was described as not having an ethos, but I do not subscribe to that view, nor, I believe, would my colleagues. In any case, no other sector is uniform; each has variations within it.

3388. Discussion continues about how the school estate should be managed. As Gordon said, the management of an education service in Northern Ireland requires rationalisation. Some of the villages in the Southern Board area have four primary schools, where only one is needed. We had hoped that, through the establishment of a single authority, all sectors would be brought in as equal partners to devise an equal solution that satisfied everyone. Somehow, that idea has been lost, with the controlled sector in one corner and other sectors in different corners. That disturbs us slightly because we expected that sense of separation to dissipate, which would have added tremendous strength to the education system.

3389. Mr Topping: We never wanted to be in the current situation in which there is a plethora of sectoral support bodies. At the outset of the discussion, we supported a single integrated authority, in which all the rights and the ethos of all interests would be protected. Sometimes, such protection may have to be enshrined in legislation, as happened with the boards. However, we have ended up in a position whereby whatever one group has, another group must have too. We did not sign up to that at the beginning of the exercise.

3390. There is no such protection included in the Education Bill, although there is potential to include it in a second Bill. Unfortunately, Pandora’s box has been opened, and it will be difficult to put the lid back on. As a result, there are various types of sectoral support for all kinds of bodies. Without clear legislation, that detracts from the ESA’s ability to manage.

3391. Mr Cargo: There is a danger that the Bill under discussion, and even a second Bill, will end up addressing the wrong problem. If the problem is the need to improve the educational opportunities of children, the Bill should clearly reflect the ways in which that will be achieved; the structures would follow from that central purpose.

3392. I make no apology for saying that I am an integrationist in the best sense of the world. Education structures should be integrated; they should recognise diversity but celebrate inclusion. What I see now in the debate is an unedifying scramble by some sectors to ensure, quite properly, that they are not left out in a sectoral body carve-up of administration. That was never the intention of the boards in subsuming their wishes for the greater good — the development of a better system. If the outworking is that we spend most of our time discussing the setting up of sectoral support bodies just so as everyone feels loved, we have lost a major opportunity to enhance the opportunities for children.

3393. Mr G Butler: That reflects the Southern Board’s response. We feel that it is not simply a matter of replicating everything that exists in the other sectors. If the sole purpose of the Bill is to provide a unified service, a big issue is what powers it is given. David mentioned respecting diversity and, at the same time, looking at methods of delivery that run across sectors. In particular, Stanton mentioned the need to look at the number of schools and locations and to maintain sustainable schools.

3394. The Department’s policy paper 20 did not even fully replicate what went on in other sectors. The controlled sector had major problems. The paper was really saying that we would be given the powers in principle, but that the ESA would still hold the ownership and control. To use a good old expression from north Antrim, it was neither fish nor flesh, nor good red herring.

3395. Mr Mulholland: Adding to what my colleagues already said, the creation of those new bodies eats into any potential savings that there would be in the future.

3396. Miss McIlveen: I will ask one final question about a point that I know my colleague wishes to develop further. Are you concerned about the fact that, when writing about this period, historians may summarise that the boards were found wanting in their protection of the controlled sector and of the sectoral bodies that came out of that?

3397. Mr Topping: No, I do not think so. Obviously, I do not want to be defensive about the boards, because we have agreed to subsume our interests for the greater good. However, we have tried to say that all children are equal and need to be treated equally; that they need to have the maximum opportunities, and that we want to provide a service that is as efficient and as integrated as possible.

3398. Therefore, we are talking about an all-inclusive organisation that recognises the differences that exist, but that, at the same time, ensures that everyone is treated fairly. There is nothing wrong with that position. In fact, that is the high moral ground position, and we have always held it. Unfortunately, it does not look as though things are moving in that direction at present.

3399. Mr McCausland: Stanton Sloan made a point about the subregional structure and used the phrase “if properly constituted". How can that be constituted properly in order to do what needs to be done to recognise the differences across the country?

3400. Mr Sloan: That really is a matter for the ESA to determine.

3401. Mr McCausland: I think that it needs help. [Laughter.]

3402. Mr Sloan: One of the strengths of the current situation is the number of services that are provided locally. Certainly from the point of view of parents and schools — including the boards of governors, staff and pupils — there is a whole range of services that is provided locally.

3403. As regards the phrase “if properly constituted", there needs to be a clear determination as to what will be available at a subregional level, whatever number of subregional groups there may be. For example, when people spoke initially about finance, they spoke about a centralisation of the finance function. The South Eastern Board has now employed several people from the Department as LMS advisers. They work in our finance department, but they spend their time with schools, helping them directly with their budgets and with developing five-year plans. A clear process of thought must be applied to finding out what schools want — they must be asked what they need locally. Schools and parents, as the end users, are in the best position to tell you what they want and what should be located at that subregional level.

3404. We certainly have views on the matter: I could give you a list of services, and I started to do so earlier when I talked about educational welfare and psychology. The whole area of special needs must be local. The human resources function — depending on the resolution of the problem of employing authority and employer function — is another area where boards of governors are supported. Those issues need to be sorted out.

3405. Mr Cargo: Stanton quite rightly focused on services. However, there are two key principles involved. The first is that whatever happens locally must be enshrined in the Bill. Intent cannot be relied on. Here is an opportunity to recast the system, and we need to be sure that whatever happens locally is enshrined in the legislation. It must be clear and explicit. The second is that the relationship must have a democratic accountability. It must also have a stakeholder accountability to be able to provide for schools, and it certainly has to have user accountability. Any local model needs to have those three elements built into it. It has to be integrated.

3406. I want to mention one of the opportunities lost in this situation, which Gordon referred to at the start. We are dealing with children. One cannot divorce education from health, community capacity or the context in which children live in certain areas. We need to think seriously about including in the Bill specific clauses that provide for integrated local provision. Nelson knows, as I do from working in the inner city, that although the key determinant in moving people out of deprivation is education, there are also clear links to economic regeneration, community capacity building and health inequalities. We must write into the legislation a requirement for the education structures to collaborate in that way. We need to place a requirement on the body to define local need, otherwise an opportunity will be lost and the importance of a key dimension in education will be diluted. Education is a local service.

3407. Mr G Butler: One of my hopes for a local Assembly, as one brought up in the education system throughout the period of direct rule, is that a style of joined-up government should emerge. The roles of community planning and education support should both be seen as part of how young people progress in Northern Ireland. We must tie that into not only the education debate, but the debate about where education fits into the wider picture of Northern Ireland plc, and how the Assembly sees Northern Ireland and its young people progressing and growing.

3408. Mr McCausland: Stanton spoke about the functions that would be provided, and David spoke about the shape of the subregional structure. At an earlier stage, the question was asked about how that would operate. It is all very vague at present. Someone said it is a bit like a DPP, whereby it monitors what the police are doing. That did not go down terribly well: the reaction was that all a DPP does is tick boxes and everyone ignores what it does anyway.

3409. How do you see that local, subregional structure having a role in influencing, shaping and making decisions? What powers would it have? Would it just be a consultative group that meets but which everyone ignores, or would it have teeth? How would it work?

3410. Mr Cargo: One of the themes that we have tried to get across this morning is that we believe in a regional service that is delivered locally. Education is an important requirement for young people and adults in Northern Ireland, and, undoubtedly, there needs to be a regional dimension to it so that there are coherent policies and strategies across the region that ensure accountability to the Assembly, the Minister and the citizens of Northern Ireland.

3411. However, in its delivery, education is a local service that is tailored to meet the needs of individual communities. It is not the same in Ballinamallard as it is in Belfast or Ballycastle. Although we must ensure that we have a top-down structure that ensures coherence, we must also have in place a bottom-up process with local structures, both to capture all the views of the stakeholders and to ensure that the ESA is bound, not just to listen, but to take account, in a structured way, of area-based plans. That brings us back to area planning for provision and also for delivery of services. If you are going to deliver a service in Turf Lodge or the Shankill, the service, by its very nature, will be very different to that which would be delivered in rural Fermanagh or west Tyrone.

3412. In addressing that local dimension, you must ensure that that there would not just be a monthly meeting to tick boxes; you must build meaningful area plans, which the ESA must take account of in legislation, and those area plans must take account of the regional strategy within which it operates.

3413. Mr McCausland: I will move to a different area. Michelle spoke about ethos, and the phrase “Pandora’s box" was used earlier. I am not sure how you would describe it, but once you start to deconstruct the current system, all sorts of issues come out of the woodwork. I have learned things in this process of which I was never before aware, even though I have sat on an education and library board for many years. I doubt that anyone else who sat on an education and library board had a greater knowledge than I on those matters.

3414. The point was well made that one of the factors must be equality for all children. The difficulty is that, by the nature of the system in Northern Ireland, children are broken up into sectors. If you do not have equality across all the sectors, you do not have equality for all children: that is our difficulty.

3415. One of the points that the Catholic bishops made very forcefully when they appeared before the Committee recently was in relation to the role of governors. Last week, we asked the Department some questions about the appointment of governors to controlled schools and to CCMS schools, and we look forward to the answers.

3416. The boards also appoint governors to both of those sectors. The key point for the Catholic bishops was that governors who are appointed must be supportive of the ethos of the sector. How do boards ensure that the governors that they appoint are supportive of the ethos of the maintained sector? Do they also look at whether governors appointed in the controlled sector support its ethos? I do not know if boards do that in the same way. I have some sense of how that works in practice — of how names are put forward and the result is reached — but I have no sense of how it works with the Catholic maintained schools. How do you ensure that those people support the ethos?

3417. Mr Topping: We may do it in different ways, but I guess that each board has some kind of member input into that process. We have management committees, which deal with each of the subdivisions. In our case, those subdivisions cover nine council areas, and members from each area make decisions as to who represents the board. Other boards have committees that are constituted to do that.

3418. Although it is probably done in different ways, in practical terms, the boards ask the Catholic sector, for example, to nominate people who they think could act as board representatives and still sign up to the Catholic ethos. Local knowledge comes into play in the controlled sector, because many of the board members will have knowledge of the areas in which they serve and represent, and they will feed in names. As a result of that, a variety of names is put forward, and we then make a decision.

3419. Some of us have trawled — not necessarily advertised — for board members in local communities. For example, we placed flyers in libraries to say that we need good people to sit on the boards. We spelt out some of the criteria that we use, and we asked people if they would be interested in putting their names forward.

3420. Therefore, I guess that we would probably do it in different ways. That is a general summary. I am not sure if anyone wants to add to it.

3421. Mr Cargo: I believe that there is a misnomer in the current system. The schools for which we have direct responsibility are called controlled schools. However, when it comes to the development of a school’s ethos and how a community perceives it, we are probably the one sector that has no control. Given the history of the past 30 years, boards have tended to leave the operation of individual controlled schools to the good sense of the local community. Obviously, there is a different scenario in the faith-based system, which, I assume, is about trying to get consistency on the core values of a particular faith throughout all schools. Therefore, we have a problem with the title of “controlled" because everyone thinks that we control boards of governors.

3422. As regards ethos, Nelson, we are proud that we have responded to local communities’ needs. In taking that on, as Gordon says, in the development of boards of governors, we have very much left that to the good sense of board members who often know intimately the local communities that they serve. Therefore, governors have tended to emerge from that discussion.

3423. If we move into a different situation in which we start to have sectoral bodies, a debate emerges that is the logical outcome of questions such as, “What is the controlled sector?"; “What is its ethos?"; and, “How do you ensure that everyone in that sector complies with that ethos?". Once you enter that debate, it will neither be short nor easy. You will end up with structures that will, perhaps, add additional layers of complexity to a structure that you are trying to simplify.

3424. Mr McCausland: The logical conclusion, therefore, is that either everybody has a sectoral body, or nobody has it.

3425. Mr Cargo: That could be a conclusion.

3426. Mr Topping: When we were involved in the initiation of that debate with the Department, we envisaged that sectors would have their ethos and rights protected inside a regional body. However, as it stands at present, the regional body that is being created will have some difficulty, we argue, with how it manages the system and a whole pile of sectoral bodies outside it; more sectoral bodies, in fact, than we have ever seen.

3427. Mr Sloan: As regards appointing governors, we operate a similar system to that of the North Eastern Education and Library Board. We try to ensure that we appoint governors who support the ethos of the school. We all visit many schools. You can go to two maintained schools, and, despite their being in the same sector and having the same Catholic ethos, each school has a different overall ethos. We discuss schools’ needs with them frequently and try to balance skills to meet those needs.

3428. Nelson, you made a comment about treating all children equally. We all subscribe to that view absolutely and totally. It is fundamental to draw a distinction between treating all children equally and treating all children the same. To treat all children equally does not mean to treat them all the same, because account must be taken of individual differences. The same applies to schools when appointing governors. In treating all schools equally, you do not necessarily treat them all the same.

3429. Mr B McCrea: There is always a danger, when you reach this stage in the proceedings, that anything that is worth saying has been said several times.

3430. Mr McCausland: That will not stop you. [Laughter.]

3431. Mr B McCrea: I thought that you had finished, Nelson, although if you want to come back to the discussion, be my guest. [Laughter.]

3432. Some useful questions were asked, on which I want to press you. I apologise, therefore, if I go back over matters that I did not get a chance to discuss earlier. There are certain particularly germane matters.

3433. Just so that you understand where I am coming from; my party is in favour of maximum devolved autonomy to schools, with appropriate oversight arrangements to ensure that no inappropriate activity occurs. We believe that the ESA, as it is currently envisaged, will become a centralised bureaucratic monster that will not allow that to happen. That is why we have significant concerns.

3434. I have a couple of questions that I want to pick up on. You gentlemen are all in a unique position to help us, given your experience of 180 years, or whatever length of time Trevor said it was. I am not sure whether that was 180 years’ experience each.

3435. Mr Topping: That is 30 years more than the last time.

3436. Mr B McCrea: Well, it has been a long meeting.

3437. Furthermore, a number of you — though not all of you — said that you are reaching the end of your specific interest in the process. Therefore, you could afford us your opinions. I am slightly disappointed — and I mean that gently — that you have not grabbed the bull by the horns and told us exactly what you think. There were a couple of times earlier when you said that you were not being political, but, of course, as the debate goes on, it becomes more expansive. However, this is not a political decision. Various members have merely asked for your opinion; they have asked you, as experienced educationalists, what you really think.

3438. I will narrow it down to two or three points, which, throughout our discussions, emerged as the central issues. Mary asked a devastatingly simple question, which we fudged — do you, as a group or as individuals, have confidence in the ESA, as it currently stands in the proposals? I have a few other questions, but, given that you talked about crucial differences and so on, do you have confidence that the ESA, as currently outlined in the Bill, will deliver a better educational system than the one that we have now?

3439. Mr Topping: I will preface my answer by saying that we refute what has been said. We answered the questions, and we tried to be as clear as possible in our answers. We said quite explicitly what we believe in. We said that we believe in a regional education authority, and that we want it to be all-inclusive. We have said that it should have a children’s service dimension, and that it should have the powers to be able to manage the system. That is the framework within which we answered all the questions.

3440. Basil repeated the question that was asked previously, which related to whether we have confidence in the ESA, but he added the phrase “as it currently stands". We were asked whether we had confidence in the ESA. Of course, we have our concerns about the ESA as it currently stands in the Bill, and we expressed those concerns throughout this morning’s discussion. Therefore, as it currently stands, we would like to see changes, and we have illustrated some of the changes that we would like to see. However, we answered the question within the framework that I outlined. We believe in a regional authority that has a local dimension. We want it to be all-inclusive and to have a children’s services dimension, and it should have the ability to manage the system. We still hold to those principles.

3441. Mr B McCrea: Gordon, I did not mean to imply that you were not answering the question. I am merely saying that I think there was a missed opportunity, but that is my personal view. You can answer in whatever way you think is appropriate.

3442. You identified the phrase “the crucial tension", and the crucial tension involved certain areas, such as clause 8 and the employability issues. We would find it useful to know about that. We received a letter from the GBA, which states that a prolonged cycle of rebuttals is possible, not least because of the Department’s predilection to argue that black is white when it comes to the employment issue.

3443. A major issue has been raised by the GBA, the Catholic bishops and others, and you referred to it as well — is it the employer or the employing authority who has control of the employment issue?

3444. That is probably the largest of the big three nubs that are central to what is happening. I agree that the question is one of clarity. The decision to be made is whether a centralised authority is what is wanted. However, given your experience, the question was in what way would you draw up a regional body? Can that be done on the basis of maximised devolved autonomy with some sort of oversight — along the lines of the Policing Board — or must all the powers rest with a central authority, with the associated knock-on effects?

3445. Mr Topping: I thought that we had answered that question perfectly clearly, but obviously not. It has been a long time since I was in the classroom; therefore, my powers of explaining things might have diminished over the years.

3446. Mr B McCrea: I am sure that the fault was mine, Gordon. I just believe that this was the key issue that we struggled with. For the sake of clarity, and in light of all of the responses, I would have liked direction, because I feel strongly — and others have said it — that whoever controls the employment contract controls everything else.

3447. Mr Topping: I agree 100%. The issue is not just employment; it is what is delegated to schools. If the employer role is delegated to schools, there are consequences — I think that that is what David was saying. Responsibility for the cost of the curriculum and its support services has consequences. If things such as the psychology service and the education and welfare service are delegated, there is a consequence.

3448. We said that, in general terms, we support delegation to schools and placing responsibility for decision-making with those best able to make decisions — local people. That was the principle on which we operated. In the length of time that we have with the Committee, it would be impossible to go into what we would delegate to schools in addition to what they have, because that has knock-on consequences for the ability of the ESA to manage the system holistically. In principle, we support local management.

3449. Mr B McCrea: OK. At another stage, it would be useful to find out whether there was any other guidance.

3450. I expected, but did not hear, mention of the benefits of having comparator regions, although that might have come up in the general discussion — the ability to compare and contrast, albeit, that the boards have different environments. There is a danger that that capability will be lost in a centralised regional body. I think that there is strength in having comparators; is that the case?

3451. Mr Topping: In summary, we said that we recognise that issue and those problems, but they can be overcome in two ways.

3452. One way was to use other comparators — either international or national — or, as mentioned by Stanton, by using the local dimension that is likely to be created in the ESA as a means to encourage improvement.

3453. Mr B McCrea: Without labouring the point, the problem is that international comparators are not, strictly speaking, useful, because they have different conditions and they also tend to deal in averages.

3454. If one looks at the sub-regional issues that could be developed, it is difficult to pick a number that is any better than five — too many becomes too localised. I think that there is merit in the job that is currently carried out, and we should not lose that.

3455. My final point on that issue is a challenge that is meant positively. I understand the difficulties the boards face with the Committee in front of them and the Department behind them. That is an invidious position.

3456. Trevor Lunn asked about councillors and their involvement in the decision-making body. I am aware of difficulties with boards not making decisions about closing schools and schools running up deficits and so on because it is impossible to get a decision. When we were originally looking at setting up the ESA, I thought that part of the benefit was to take a long, hard look at that issue and try to say what the decision might be.

3457. The issue is not about just closing schools, because there are schools that I want to argue for keeping open; I just think that there are difficulties if we are not clear about what it is that we are trying to do. What does the ESA do? What do school governors do? What do the area-based planning issues do? They are all slightly different. I am not sure that having nine councillors on a regional body will give us the outcome that we require.

3458. I understand that we all have to work with each other, and, therefore, one has to be a little bit cautious, but there is an opportunity to sit and say:

“No, there were difficulties, and how do we resolve that particular issue?"

3459. Mr Topping: We think that we recognise the point that you are making. However, in my experience, and others can speak for themselves, we have had no more difficulties from elected representatives than we have had from others. As I said, party politics rarely come to the fore, but community politics do, and weird alliances are created, particularly on school closures, when it is not necessarily politicians or elected representatives who take the lead, but other local community representatives.

3460. That is all part of the business area, so to speak, in which we work: getting support, dealing with issues and trying to get consensus around a board table with 35 members.

3461. Mr B McCrea: I agree, and this is absolutely my last statement because I understand the position. Is it right for that discussion to take place in the ESA or in some other area-based planning context?

3462. Mr Cargo: Decision-making processes are a bit like appointments: you are not exclusive. Education is a community based service; therefore, it is important to reflect at all levels in the education service the totality of those who are engaged in it, and politicians have a vital role. Like Gordon, I have always found local councillors helpful in such a situation. They have good local intelligence that they can bring to the table and give an added dimension to the discussion. If they were not there, the discussion would not be as fruitful.

3463. One need only look at the Health Service, which, for a time, had no local councillors or representatives on any of its structures. I think that, at certain times, decisions made on health were poorer for the lack of local representation. There should be local representation, but in the ESA the local dimension as represented by those who are democratically accountable should be at the heart of the organisation. That is consistent with the structures that are being put in place.

3464. However, it is also proper that they are there because they bring an added intelligence and impetus to discussions on what is best for certain areas, because education is about sustaining communities. If we get to a stage when we are simply putting in place what is a business structure, education will be much poorer, and the opportunities for children will be much fewer.

3465. Mr B McCrea: The boards and you gentlemen have made a huge contribution, and have a further contribution to make. Given that this is not the end but the start of the process, I encourage you to carry on engaging and helping us on this issue, because these processes sometimes assume that we know what it is that we want to do, and, therefore, we will check it out. Actually, we are in a much more iterative process, whereby one takes on ideas and decides that perhaps we will do it this way.

3466. I do think that you are central to it, and I implore you to try and find a way of feeding more into our debate.

3467. Mr Topping: We will provide whatever help in this process that the Committee wants.

3468. Mr B McCrea: I finished too quickly.

3469. The Chairperson: We have considered various issues, but there is one on which I would like your opinion. You expressed a clear view on the inspectorate, but I would like you to expand on the role of the inspector and his or her ability to carry out their functions independently. I think that it was Mr Mulholland who dealt with that part. He seemed to imply that there would be a conflict of interest between the inspectorate’s role with regard to the curriculum and the policy and its overseeing role. What is the concern there? It is something that we have considered and discussed, but not in much detail.

3470. Mr Mulholland: The inspectorate values its independence, and it perceives itself to be independent. Clause 37 establishes the powers of the inspectors. The inspectorate is still part of the Department of Education and is overseen by it, and it will be party to the policies that come from the Department. Therefore there will be a perceived conflict of interest when inspectors are carrying out their inspectoral role: monitoring, inspecting, reviewing, and reporting on Department of Education policy in schools. There was an opportunity in the Bill to establish the independence of the inspectorate, much as there is in England. That is an opportunity lost.

3471. Mr McCausland: The inspectorate is situated in the Department. However, is it separate from the Department?

3472. Mr Mulholland: It is an integral part of the Department of Education.

3473. Mr Topping: We understand that the chief inspector is part of the senior management team of the Department and its principle educational advisor.

3474. The Chairperson: We will come back to that.

3475. Mr O’Dowd: Is it not the case that a conflict of interest would arise if he or she was the inspector of the Department rather than of schools on behalf of the Department?

3476. Mr Mulholland: The inspector inspects the policies that come from the Department and their implementation in schools.

3477. Mr O’Dowd: A conflict of interest would arise if there was an inspector of the Department. For instance, if this Committee’s role is to inspect the Department of Education, and the members were from one party — which I wish was the case — [Laughter.]

3478. Mr Topping: We are making the point that was made across the water, and it relates to why there are independent inspectorates outside the Department. The basic thrust of Mr Mulholland’s argument is that there is an inspectorate that is party to devising a policy on an issue. That policy will be implemented in schools through the boards or the CCMS, for instance, and an inspector will inspect its implications and workings. If an inspector says that the policy is a disaster, he or she is criticising themselves, because he or she was party to devising the policy advice that went to the Minister.

3479. Mr Cargo: It would strengthen the system if there was a clear separation. The Belfast Education and Library Board made a further point around the clarity in respect of separation of functions, and we thought that it was an opportunity lost. The role of the inspectorate should be strengthened to make it a more accountable and independent body that will provide quality information, without fear or favour to anyone.

3480. Mr G Butler: I will refrain from discussion on this topic because my wife is an inspector. I declare that interest for the record.

3481. Mr Lunn: It sounds so obvious and simple, but has it caused a problem in the past? Can you provide an instance where an inspector’s ability to act independently was compromised by his membership of the Department.

3482. Mr Topping: I do not know; we cannot comment on that as we are not aware of any.

3483. Mr Lunn: How long has that arrangement been in place? Since the mists of time?

3484. Mr Topping: Yes.

3485. Mr Lunn: And it has not caused a problem: Mr Topping: No.

3486. The Chairperson: Gordon, Stanton, Barry, David, and Gregory, thank you all very much for your contributions to the discussion. A paper has been prepared by the Department in response to the issues that have been raised, which the Committee will make available to you. You are all welcome to stay — if you wish.

3487. Members, I am conscious that time is marching on.

3488. Mr McCausland: Time is moving on, and we have the response from the Department. We will not be able to go into that in any great depth. Would it be in order, once the response goes to the boards, for us to ask each of the five boards to come back to us with their view of the response, as they had a list of specific points?

3489. The Chairperson: Yes. That is what we have been trying to encourage up until now.

22 April 2009

Witnesses:

Mr Chris Stewart

Department of Education

3490. The Chairperson of the Committee for Education (Mr Storey): We turn to the response from the Department. I see that Chris is on his own; his colleagues have forsaken him.

3491. Mr Chris Stewart (Department of Education): It takes a brave man.

3492. The Chairperson: Chris, I reiterate our disappointment that we received the Department’s paper only yesterday afternoon. Some members may have seen it only when they arrived in their offices this morning. We convey, again, in the strongest possible terms, that we are not happy with the timing.

3493. Mr Stewart: I appreciate that. It is not good enough for the Committee to receive the papers late on the afternoon prior to the meeting. On this occasion — and it is not an excuse that I can offer for previous occasions — the delay was caused in getting the paper cleared over the holiday period. That added to our difficulties. Your point is a fair one, and we will endeavour to do better than we have done in the past in getting papers to the Committee.

3494. Mr B McCrea: Chris, you always make apologies to the Committee, but does anyone beyond you actually listen or care about this?

3495. Mr Stewart: Yes; my apologies are on behalf of the Department. We recognise that our performance has not been good enough on the matter, and that we need to improve it.

3496. I am conscious of pressures on the Committee’s time and the fullness of its agenda. If it meets with the approval of the Chairperson, I will make a short presentation to cover both sets of issues that my TRC colleagues raised. I will begin with some specific matters relating to the Bill, and move onto comments on policy paper 20, about which most of the previous session was focused.

3497. I have four particular points regarding the Bill, the first of which concerns the ESA membership. I stress that this is about membership of the ESA, not the similar issue of membership of the ownership body, which is a point that I will come to shortly. We note the TRC’s strongly held view that it ought to have guaranteed membership of the ESA. However, as I explained in the submission, that is not feasible for three reasons.

3498. First, the policy is that employment arrangements for the ESA membership will reflect the merit principle, and no organisation will be given automatic membership rights. Secondly, the TRC suggestion is based on a perception that the ESA will succeed education and library boards as the owner and managing authority of controlled schools. As members are aware, the intention is that the second Education Bill will remove both those functions from the ESA; therefore, it is difficult to see a rationale for giving the TRC ongoing membership rights for the ESA on the basis of two functions that are temporary and short term.

3499. Thirdly — and this is the main issue that has been discussed a number of times — the provisions that would give the TRC membership rights are likely to be outside the legislative competence of the Assembly, as defined by section 6 of the Northern Ireland Act 1998.

3500. The second issue about the Bill is that of committees and local structure. TRC colleagues touched on the matter at the end of their presentation. Like other stakeholders and members of this Committee, they would like to see more information and more detail about what the committee and local structures of the ESA will be. We owe the Committee a paper on that, and that is being prepared.

3501. The Minister wants to take the Committee’s views on the detail of what the committee and local structure of the ESA will be. She does not see the need to specify those matters on the face of the Bill, but will be very interested in the Committee’s views as to what the detailed arrangements would be.

3502. We fully agree with what the TRC has said on the need for training, advice and support for governors. That is we propose to make it a statutory duty in the Bill that the ESA should provide, or should secure the provision of, such training, advice and support. That is clearly vital for the role of governors.

3503. Finally, we agree entirely with what our TRC colleagues said about the issue of the religious education curriculum in the Bill. It is extremely important that schools receive the advice and support that they need on every subject on the curriculum, including religious education. We will expect the ESA to address that matter seriously.

3504. We also welcome the positive comments from the TRC on the inspection process. We understand its reservations about how that process is operated in practice, but we welcome those comments on the nature of education, which has been rightly described as a very important means of contributing towards raising standards. Again, we want to give serious consideration to the concerns that have been raised about how inspection operates on the ground. I will certainly pass those comments to inspectorate colleagues.

3505. I will now address the issues that were raised about policy paper 20. The key issue that was raised by TRC colleagues is the ownership of controlled schools, and related matters. The TRC has argued strongly that it ought to have guaranteed membership of the ownership body. It has based its arguments on the historical agreements, its views on equality, and on the fact that the population served by controlled schools is predominantly Protestant.

3506. We understand all the arguments, which the TRC has put to us cogently and consistently throughout the process. We appreciate the very obvious strength of feeling and sincerity with which those arguments have been made. However, those arguments does not change the fundamental legal position, which is that although TRC membership of the ownership body is possible, and would indeed be welcomed, it cannot be guaranteed in legislation. That is because the Assembly simply cannot legislate in the way that the TRC has suggested. It would amount to discrimination.

3507. The Department is acutely aware of the legal position, the constraints that it places upon us, and the very real concerns that arise as a result of that on the part of stakeholders and Committee members. That is why our efforts have focused on underpinning the role of the TRC, not on the ownership body, but on the representative body, where, because it will not be a legislative body, there will be fewer constraints and a much greater potential for us to ensure that the TRC has a significant role.

3508. It is in that context that we responded to the TRC’s request for guaranteed membership of the ownership body. It is not just that that is not feasible; it is not important and it is not necessary. Ownership is not the real prize; a role on the representative body is the real prize. To a number of sectors, ownership of physical assets is regarded as very important. However, it will not convey any advantage or disadvantage to any school or sector. By contrast, the roles and functions that the TRC considers important — and described this morning as being important — and those that it wishes to exercise and be involved in, will be assigned to the representative body. Therefore, the provision of a voice for the sector; the defining and the fostering of the ethos of the sector; the contributing to the development of education policy and; perhaps most significantly of all, taking part in area planning, are roles that we see falling to the representative body and not to the ownership body.

3509. Having considered the responses to the consultation on policy paper 20, the Minister feels more strongly than ever that, where possible, sectoral functions need to be very closely linked to sectoral ethos. As a consequence, we feel that the role of the representative body should be given priority, and that the role of the ownership body should be narrow and technical — more narrow than we suggested in policy paper 20 — and limited to the stewardship of publicly-owned assets and only that. The important role — what the TRC described to me as the power and the influence — ought to be with the representative body, on which the TRC will be present.

3510. In today’s submission, I acknowledge that one particular function — the role of the submitting authority — presents us with a challenge in relation to the controlled sector. Creativity is called for if that role is to fit within the logic that I have just described. The reason for the establishment of the submitting authority role is to ensure that sectoral ethos is reflected in governance and employment arrangements. That is something that all sectors have told us is very important to them. For most sectors, there is a relatively straightforward technical solution. The submitting authority role can be assigned to the owners or trustees of the schools, because they happen to be the custodians of the sectoral ethos. However, for the controlled sector, things are not that straightforward, and that arrangement may not work or prove to be satisfactory. That is because the representative body, not the ownership body, will develop and foster the ethos.

3511. We have outlined two options that might help overcome that. The first is to place the submitting authority role directly with the boards of governors, most of which will, of course, include TRC governors. The second is to place a requirement on the ownership body — if it has a submitting authority role — to consult and involve the representative body. In either case, the aim is for the representative body to be placed in a position to provide leadership and direction over the submitting authority role. The intention behind all the arrangements, and behind both options, is to place the controlled sector in the same position as other sectors, with governance and employment arrangements that reflect the ethos of the sector as developed by a genuinely representative body.

3512. The constraints of the current law mean that the route to be followed in order to achieve that is clearly not the route that the TRC, and perhaps many Committee members, would wish to follow. Nevertheless, it is our contention that the end result will be the same, and will give the controlled sector something that it does not have today — a clear ethos that is recognised, celebrated and reflected in administrative arrangements.

3513. I will pause at that point, because I am sure that members want to ask one or two questions.

3514. The Chairperson: I am somewhat perturbed by the comment that the ownership arrangements do not give the maintained sector some degree of preference over and above any other sector. The representatives of the TRC have a contrary view.

3515. On the issue of ownership and representation, in the briefing paper, you state that:

“it is not feasible to continue with or replicate the current ownership arrangements."

3516. On the one hand, you are saying that is not really a big issue. Yet, on the other hand, you are saying that the arrangements cannot be replicated. Therefore, we have a mess that clearly needs to be resolved in order for other sectors not to feel like they have been left out in the cold.

3517. In your submission, you talk about the general functions and duties of the ESA and the fact that the Minister does not want to be prescriptive by putting a lot of structures on the face of the Bill. You also stated that a load of those organisations will be in existence within the footprint of the existing organisations. In addition, you said that that will change significantly in the following years. Therefore, there will be further change as the ESA evolves.

3518. We are being told that the reason we are starting from here is because it has to be right. You also state that it is important that the legislation is not unduly prescriptive and that it provides the flexibility for the ESA to transform services in a way that is sensitive and responsive to local needs. However, the Department, in bringing this process to where it is to date, has not been sensitive or responsive to the needs that have been expressed. Therefore, how can people have any confidence in the ESA, if it is not sensitive and responsive to local needs? A prime example of that unresponsiveness is that, six months into the process, the controlled sector has not had one issue addressed.

3519. No sectoral body has been set up, no subgroup of the six to eight people has been established, and no business case for the controlled sector has been made. Pen has not been put to paper to prepare a business case. Yet, the other sectors — the maintained sector, the Irish-medium sector, and the integrated sector — all have business cases. What about the controlled sector? It has not even got a look in.

3520. When is the Department going to take seriously this issue and start to put something of substance in place? We do not want to hear phrases such as “we appreciate", “we understand", “we have a concern", “we know", and then to be told that we cannot have something put in legislation.

3521. We do not accept that you cannot put something in legislation. Other things have been put in legislation, because people have said that, politically, it must be done. Politically, this will be done; it will be in legislation. Our concern is that there seems to be more and more problems. There is no equality.

3522. Mr Stewart: You made a number of significant points. I will deal with your last point about legislation first. Of course it is not for me, as an official, to say to any politician what is politically possible; rather, my role is, merely, to explain the legislative framework within which we currently operate. If politicians decide to change that framework, of course, that is what will happen; however, until that happens, the legislation is what it is. That is defined by section 6 of the Northern Ireland Act 1998, which is an extremely blunt instrument. Quite simply, it says that the Assembly cannot legislate in any way that would be discriminatory. That is that reality of the situation that we face, and that is why we cannot give the TRC guaranteed membership rights on any public authority.

3523. Previously, Mr McCausland asked what would be required to change that situation. There would have to be an amendment to section 6 of the Northern Ireland Act 1998. That is an excepted and cross-cutting matter, so it would require a decision by the Executive and the consent of the Secretary of State to do so. If that were to happen, section 6 could be changed.

3524. The Chairperson: Or, there could be an agreement to maintain a cohort of education and library boards, and therefore, the ownership issue would automatically be dealt with. That would not affect section 6 of the Northern Ireland Act 1998.

3525. Mr Stewart: That is right. Section 6 would have no bearing on such an arrangement, because it would not involve new legislation. That solution would be technically feasible.

3526. I shall return to some of the other points that were raised. With respect to the lack of progress on a number of issues in the controlled sector to which you rightly pointed, I will not fall into the trap of offering you platitudinous answers. We recognise that the Department needs to put a bit more resource into that area than it has been able to do heretofore, and it will do so.

3527. Alongside that, I ask to Committee to recognise the difficulty and complexity of taking forward such an exercise in a sector in which there is no tradition of operating in that way. It is a foreign concept to many in the controlled sector. In my discussions and conversations with folk in the sector to date, there has been an initial wariness and concern. However, that has usually been followed quickly by growing enthusiasm when they recognise the opportunity for the sector to achieve parity of esteem and to operate — perhaps more so than it was able to do in the past — in a way that is much closer to the way in which other sectors operate. However, for a sector of that size, complexity and diversity, it will take time.

3528. I was struck by what colleagues from the Council for Catholic Maintained Schools (CCMS) said to the Committee — on a number of occasions, they have said the same thing to me — about the difficulties that the maintained sector faced in the early days when the CCMS was established as the sectoral body. It took a number of years before there was widespread acceptance of its role, until it had sufficiently matured and developed to the point at which it enjoyed the confidence of the maintained sector. It took a great deal of effort to get there.

3529. Lest members fear, I am not offering that as an excuse for us taking years to do anything in the controlled sector. That would be unacceptable. We must get arrangements in place and up and running as quickly as possible, alongside those in the other sectors. However, it may take time before those arrangements mature and develop sufficiently enough to operate at the same capacity as those in other sectors.

3530. I turn now to the matter of perceived advantages that stem from ownership. I entirely accept that that is something about which many sectors and stakeholders feel strongly. However, we contend that the arrangements that we put forward in the Education Bill do not allow for advantages stemming from ownership. Ownership is not associated with being an employer or with having a statutory authority. Ownership does not give any sector or school a position in area planning that any other sector or school would have. There are simply no practical, on-the-ground advantages associated with ownership. I recognise that the perception is to the contrary, but the reality is as I described it.

3531. With respect to local structures of the ESA, we recognise the concerns and the desire for more detail. However, it remains our view that an attempt to specify those structures in the Bill would be counterproductive. A number of members have emphasised to us — many times — that what works in Belfast may not work in Fermanagh or Derry and that we need locally sensitive solutions to reflect the needs and realities of the communities and schools in those areas. Therefore, any attempt to specify that and all the variations that would be required on the face of a Bill would make it an extremely lengthy, difficult and, ultimately, counterproductive exercise. It would also take away the flexibility that is going to be required over the next few years. The ESA will begin with the footprint of the existing organisations, but no one believes that that is the footprint that the organisation should continue to have — changes will be required.

3532. At present, the full detail of all those changes is not available to anyone. It must be planned, carefully thought through and consulted upon. That will take a period of years. We are simply not in a position to specify that on the face of primary legislation. If we were to attempt to do so, we would do education a disservice.

3533. That was a long, rambling set of answers. Therefore, I will stop at that point. There may be points to which you want to return.

3534. The Chairperson: The question was long and rambling. I want to pick up on one point, because it contradicts what is stated in the paper. When I asked you about the possibility of a cohort from the education and library boards remaining, you said that that is feasible. However, that is not what it says in your paper. Paragraph 9 states that:

“The Department fully appreciates these concerns. However, it is not feasible to continue with or replicate the current ownership arrangements under the RPA."

3535. Which is it?

3536. Mr Stewart: It is technically possible to leave legislation in place as you described. However, it is not an option that the Minister would favour. That is what I meant by the reference in the paper to its not being feasible.

3537. The Chairperson: Therefore, “it is not feasible" means that the Minister does not agree.

3538. Mr Stewart: Yes. However, if your question is whether it is technically possible to leave a proportion of the existing organisations in place, then, yes, it would be possible.

3539. The Chairperson: Michelle will now ask a question, followed by Basil. Sometimes, I get criticised for the order that I take, although I do try. I have a piece of paper in front of me with a list of members who have indicated that they want speak.

3540. Miss McIlveen: Do not worry, Basil; I will be quick.

3541. Your paper, under the title “Functions and general duty of the ESA", stated that:

“The Department recognises that the majority of children who attend controlled schools have a Protestant community background. It is recognised that the ethos of most controlled schools, and the controlled sector generally, has a significant Christian Protestant dimension. Equally, the Department agrees with the TRC that the controlled sector ethos must be based on inclusivity, the recognition of diversity, and the promotion of equality."

3542. That last sentence concerns me, because it gives the Department the opportunity, perhaps, to dilute the Protestant/Christian ethos in an attempt to achieve diversity, equality, and so on. Given that that is expected of the controlled sector, I want to know whether the Department will give guidance to the Catholic sector that it must also achieve those aims.

3543. Mr Stewart: Of course we would. Requirements of law and policy would apply equally to any grant-aided school. Let me reassure you that there will be no attempt by the Department or the ESA to artificially engineer the ethos of individually controlled schools or the controlled sector. The paper recognises that the ethos of the controlled sector reflects the choices that parents have made for generations to send their children to particular schools or schools that have a particular ethos.

3544. Therefore, as we said previously, neither ethos, nor its definition, are in the Department’s gift. Ethos is chosen by schools, sectors or communities, and the Department recognises that. We suggest that the controlled sector — much more so than has been the case in the past — needs to feel empowered and to have its ethos recognised and celebrated in a way that has not, perhaps, been the case in the past. It may have felt that it was required to behave in a way that was almost in denial of its ethos; as though it were a secular sector without a strong Protestant/Christian tradition. We are saying that that is not the case. Its ethos exists and ought to be recognised and celebrated.

3545. Miss McIlveen: I am concerned that that response allows the opportunity to skew a school’s ethos in order to meet the demands of a minority in that school, whereas that is not necessarily the case in the Catholic sector.

3546. Mr Stewart: We hope that any grant-aided school would attempt, both in its ethos and daily operation, to meet the needs of all children in the school from the background or ethos to which they subscribe.

3547. Miss McIlveen: My point is made, thanks.

3548. Mr B McCrea: Perhaps, I will make it again. There seems to be an issue about how equality legislation is brought forward. Certainly, you will have heard, when we talked to other colleagues, that they believe that equality legislation or aims and ethos are, in some way, being used against them. What applies to one sector does not necessarily apply to another. It seems that, once again, we have got ourselves in mess.

3549. On the issue of equality, the question is about whether we are going to have a series of representative structures, each of which is internally consistent in the whole, or whether there will be some overarching approach to equality. It appears to me that there is a mismatch ? we use the overarching role sometimes, and the sectoral role at other times. We need clarity on that.

3550. I understand the argument, Chris, because you made it to me months ago, about not getting concerned about the ownership because all the powers lie elsewhere. However, I am really surprised that you have been unable to convince colleagues in the TRC or others that that is the case. There is a fundamental concern and perception about the issue of ownership. I suspect that part of the problem, if you heard the submission from the representatives of the TRC, is that when schools were originally transferred, there were certain expectations. However, over time, and for all sorts of good reasons ? for example, changes of funding arrangements or whatever; we all know the history ? we have ended up in a situation whereby what was intended is now almost the opposite of what has been achieved.

3551. I do not know how we address those concerns without putting it down in very detailed legislation. I understand that there would then be the difficultly that that legislation would have to be amended if it did not work out. However, there is a genuine concern, and it comes down to what you said in your paper that:

“This will change significantly in the following years as the organisation transforms its functions and services."

3552. It is fundamental to our overall concern ? and I have expressed this to you before ? that there is an idea that we will simply get to a point in time when that is acceptable, and then it can be left open to regulation, ministerial direction, and so on for the next stage of development. That is unacceptable. If that were the case, people will have decisions imposed on them that are, frankly, not what they want. In a democratic society, that is a failing.

3553. I know that it will require a lot of drafting, and I know that it is difficult, but what we want to achieve must be put down in black and white. We need help from you on that issue.

3554. Mr Stewart: I would not worry about the drafting — officials love drafting in detail; that is our daily bread. It is not for me to determine the appropriate approach to legislation; that is up to the legislators ? yourselves and the Assembly. If the Assembly decides that more details and more prescription in legislation are required, that is what will follow. We, as officials, will respond to what Ministers, the Executive and the Assembly tell us we must do.

3555. The issue of equality legislation is, perhaps, narrower and more acutely focused than is sometimes perceived. As was mentioned earlier, a great deal of equality legislation does not apply in the field of education. The issue here is purely section 6 of the Northern Ireland Act 1998 and the Assembly’s legislative competence.

3556. The TRC argued clearly and cogently about the role that it wishes to play in education, the historical reasons for it and what it is trying to achieve. They suggested what, to them, is the most straightforward route to achieve that, which is a continuation of the current arrangements, whereby they have membership of the relevant statutory authorities. The difficulty that we face ? and it is a purely technical difficultly ? is that it is simply not possible to do that in Assembly legislation. Therefore, we have a template to find alternative solutions to achieve the same outcome.

3557. I fully accept that those proposed solutions are complex, inelegant and much less straightforward than what the TRC is seeking. Nevertheless, they are a genuine attempt to achieve the same outcome by a different route, because the route that the TRC would prefer is simply not open to me.

3558. Mr B McCrea: I understand your constraints. However, we are in a political environment, and if, heaven forbid, you should find yourself on ‘The Stephen Nolan Show’ having to try to explain to the people out there that this is what the Catholic Church gets, and this is what the Protestant Churches gets, and the Protestant Churches say that they are unhappy, and we are trying to move on with a shared future and equality and all the rest, it is just not sellable.

3559. We have to go on and do that. I understand your argument, and I appreciate your clarification. However, if the Executive make a decision with the support of the Secretary of State — and I am sure that he will not withhold his support — and we get that fixed, we will not have a technical problem. Everyone should be much happier.

3560. I note the Chairperson’s remarks about an alternative method. He was quite eloquent, and I note where he is going in relation to that. That is a solution, and a solution must be found. It would not do this place a disservice if the Executive agreed to amend the Northern Ireland Act 1998 to get the situation changed. Then we could move this process on.

3561. Mr Stewart: I shall await the outcome of any political engagements and hope that the invitation to the ‘Nolan Show’ does not appear in the meantime. [Laughter.]

3562. Mr B McCrea: I have his number.

3563. Mr D Bradley: You seem to be giving comfort to the TRC through the representative body, and, as it were, steering it in that direction. I know that it is not your role as an official to set the steer for anyone. In any case, that was the flavour of what you were saying. For example, you said that they could have more input into area planning, more sectoral functions and more influence over ethos. Nevertheless, such a representative body would have no statutory basis. Therefore the TRC, although it may have the opportunity to discuss such matters, has no guarantee that its advice or its proposals would be taken on board by the ESA or the Department.

3564. Mr Stewart: That is correct; the same would be true of any sectoral body in any sector. One of the things that the Committee impressed upon us very strongly was its feeling that none of the sectoral bodies should be statutory or have any statutory functions.

3565. Mr D Bradley: That is true, but you admitted in your paper that the arrangements for other sectors cannot be replicated in the controlled sector. To some extent, therefore, we are trying to redress the balance. One of your suggestions seemed to be that the representative body would go some way to doing that; however, if it has no power, there is no guarantee that it will redress the balance.

3566. Mr Stewart: It cannot offer the guarantee that legislation would offer; that is correct, but that is the same for any sectoral body in any sector. Our TRC colleagues were asked what they needed or would like to see in the legislation about the links between an ownership body and a representative body — something beyond consultation, because there is no confidence that consultation would be sufficiently robust. I cannot offer a solution to that today, but it strikes me as an interesting question and one that I would want to pursue with the lawyers. Can we go beyond consultation in legislation but stop short of creating a statutory body with statutory functions? I do not know the answer and I do not whether we would find anything productive in it, but it is worth exploring.

3567. Mr D Bradley: One of your possible solutions was to place a statutory obligation on the ownership body to consult. Is there more room for development there?

3568. Mr Stewart: I would want to explore that to see whether there is. It would be reasonably straightforward to have a statutory duty to consult, but, as our TRC colleagues said, they did not place much confidence or faith in mere consultations. We would want to see whether we could strengthen that a little bit. I do not know whether we can, but it is definitely worth looking at.

3569. Mr D Bradley: If section 6 of the Northern Ireland Act 1998 were to be amended, would it be possible to do so in such a way as it applied to this particular situation only?

3570. Mr Stewart: I would have to consult the lawyers on that, but I see no reason why not.

3571. Mr D Bradley: The Chairperson mentioned another solution, which was to leave a cohort of education and library boards in place. If that were to be the solution, what shape would it take?

3572. Mr Stewart: In order to avoid the difficulty of section 6 of the Northern Ireland Act 1998, it would have to be based on leaving the existing legislative provisions intact, or as many of them as necessary, to leave the boards in existence, but with only the functions of owning the physical assets of the controlled sector. All the remaining functions would transfer to the ESA.

3573. As I said, the Minister is not convinced that that is an appropriate approach as it runs contrary to the thrust of the policy and what the Department is trying to achieve through the ESA. Of course, on a more practical level, it does mean leaving five organisations in place, albeit with much reduced responsibilities. However, even organisations with reduced responsibilities require chief executives and directors of finance and all the administrative paraphernalia that goes along with that. In the short term, it would make it extremely difficult to achieve the administrative savings and reprioritisation of resources that the Department wants to achieve in the RPA.

3574. Mr D Bradley: Therefore it would be a messy solution.

3575. Mr Stewart: It would be messy, difficult and contrary to policy; however, it would avoid the difficultly of section 6.

3576. The Chairperson: Has the Minister given any consideration to that in light of section 75?

3577. Mr Stewart: I am sorry, but I am not quite with you on the link between that and section 75.

3578. The Chairperson: Has the Minister made a judgement or assessed the possibility of doing so against other equality legislation?

3579. Mr Stewart: Not specifically. Off the top of my head I do not see a particular conflict with section 75. Boards are public authorities; they are subject to section 75 and will continue to be so. The legislation that establishes boards and governs their membership would remain intact and would not be affected by section 75.

3580. Mr O’Dowd: If it is appropriate, I would like to ask the Chairperson a question. I am trying to ensure that I am not listening to a debate based on the principle of “they have it; therefore we want it". We must avoid the common mistake of not considering what it is they have and why we want it.

3581. The Chairperson said in his questioning of Chris Stewart that the Catholic Church has an advantage because it has an ownership body. What is that advantage or perceived advantage? What advantage does the Catholic Church receive from having an ownership body?

3582. The Chairperson: The advantage is that the trustees become one and the same thing with respect to representation. The trustees are the body that represents Catholic schools, as we saw in St Comgall’s and other schools. It is they who make the decisions, and that gives them power and authority.

3583. In their submission to the Committee the Catholic bishops said that ownership was secondary to ethos. The bishops were very concerned about the single employing authority, as they believe that it will affect ethos. By and large, it is the trustees who take the decisions in the day-to-day running of schools.

3584. Mr O’Dowd: I am not sure that I agree with that analysis; however, I want to think it through.

3585. The day-to-day operational procedures of any school are carried out by its board of governors. Therefore, as the transferors — quite rightly from their point of view — want to protect the Christian Protestant ethos of their schools, the key place for them to be is on the boards of governors, where that right has been protected. The Department is also trying to ensure the transferors’ representation on the representative body, thus ensuring that the Protestant Christian ethos flows from that body into those schools.

3586. The Committee may be getting itself into a tangle over the ownership body, and that may not be the right argument from anyone’s point of view. It is ethos that should be protected in schools, whether in the Catholic or Protestant sectors or in the Governing Bodies Association (GBA). Boards of governors protect ethos, and we must ensure that it is protected on a statutory basis through the representative body.

3587. I am sorry, Chris, I have no questions for you — [Laughter.]

3588. Although the Committee criticises the Department for not working on the representative bodies for the controlled sector, it is worth noting that we spend only two hours a week considering the Bill, which is the most fundamental change to the education system in the past 35 years. We are lagging behind, too.

3589. Mr Stewart: I try to do a couple of hours myself, John. I agree that we must ensure that we understand the importance of ownership. Colleagues from the Catholic education sector regard ownership of physical assets as important; however, they regard ownership and influence over the enterprise that takes place in the physical assets as much more important. That is about ethos and the day-to-day operation and management of schools; it is also about ensuring that schools can operate collectively and coherently in the family of Catholic education.

3590. We have listened carefully to that argument, and we have listened to similar arguments from the TRC and others in the controlled sector. We feel that, as you rightly said, we should do that through the representative body and its role, particularly around ethos. It should not be a window-dressing role in any sense; it must be real and practical and must give all those in the controlled sector a clear sense that it adds value and makes a difference. The Department feels that that can be achieved, but not necessarily through ownership. I was intrigued to hear TRC colleagues describe the controlled sector as weak; however, that body has a hand on ownership arrangements. Therefore ownership has not provided a solution to difficulties and problems in the controlled sector.

3591. Mr McCausland: There is a big difference between having a hand on ownership and having it in your hands. The trustees have it in their hands and hold it; those in the controlled sector have a hand on it but do not have total influence. Ultimately, the transferors are a small element on the boards, and the direction that we intend to take could reduce that influence. John O’Dowd mentioned ownership. The trustees and the bishops made the point that several controlled schools have become integrated schools and ceased to be ordinary controlled schools: not a single maintained school has made such a move, and the Committee has been told that that will not happen. Therefore, the situations are different.

3592. Ownership has an effect in several ways. Some years ago, a proposal was submitted to the education and library boards to enter a joint declaration of protection with the trades unions, and the boards were asked to sign up to it for all the people that we employed. At the time, I made the point that that we were signing up to this for the people that we employ as ancillary staff in maintained schools, yet we have no control over the building because it is owned by the trustees. Ownership is much more significant than one might imagine.

3593. Chris will be glad to know that I have several questions for him. You said that section 6 of the Northern Ireland Act 1998 is purely a technical difficulty and that there are perhaps more complex, less clear-cut ways of achieving the same end. However, even though the alternatives may go some way towards the same end, they do not achieve it. A complex and complicated change that does not deliver the necessary end is pointless; a simple amendment to section 6 would be much better. As was mentioned earlier, the Equality Commission is meant to be reflective of the community of Northern Ireland. Is there anything to prevent the membership of the ESA being required to be reflective of the community of Northern Ireland?

3594. Mr Stewart: Not that I am aware of. I thought that you were referring to the Human Rights Commission rather than the Equality Commission. They might be similar.

3595. Mr McCausland: It applies to both, but certainly to the Equality Commission.

3596. Mr Stewart: That is, of course, Westminster rather than Assembly legislation. On the face of it — again with a caveat that I will consult the lawyers — such a requirement should not cause difficulties with section 6. However, it would not provide what the TRC wants.

3597. Mr McCausland: I agree, but it is an important principle. Is there anything to prevent a statutory body from being set up whose membership reflects the community that it serves?

3598. Mr Stewart: No; I do not think that there is.

3599. Mr McCausland: Therefore you can have a body that is the ownership of the controlled schools that reflects the community that attends controlled schools.

3600. Mr Stewart: I am sorry; I may have misunderstood the first part of your question. It would have to be representative of the community — the whole community in Northern Ireland.

3601. Mr McCausland: Must any body that we set up reflect the whole community in Northern Ireland, even though it is for a special interest?

3602. Mr Stewart: A requirement to be reflective of the entire community would not call into operation section 6. A requirement to reflect any particular section or sections —

3603. Mr McCausland: We are not saying a particular section. We are saying that the composition of the community of children who attend controlled schools should be reflected in the body that owns those schools.

3604. Mr Stewart: That suggestion would have to be considered by the lawyers. However, such an approach does not offer what the Transferor Representatives’ Council is looking for.

3605. Mr McCausland: I appreciate that, but it is important in itself. Would you look into that?

3606. Mr Stewart: Yes. However, rather than speculate unhelpfully, I will test it with the lawyers.

3607. Mr McCausland: I gather that the advertisement has been placed in the newspapers for a chairperson of the ESA. How can that be when we do not even know the composition of the board that he or she will chair? We do not know anything; we have no legislation. We do not even have agreement, yet we are advertising for a chairperson for a non-existent body, the composition of which is as yet undetermined — we debated that this morning. Why would that happen?

3608. Mr Stewart: It is necessary and important for the Department to take the preparatory steps to meet the deadline that the Executive has agreed for the establishment of the ESA,

3609. Mr McCausland: Which is?

3610. Mr Stewart: The first of January 2010. We have to operate within the framework of policy and legislation as agreed by the Executive. Things may change or be changed by the Assembly; if they do, we will respond, but at present officials are bound to accept the Executive’s decision.

3611. Mr McCausland: There has been a change; we have extended the period of consideration of the Committee Stage of the first Bill to the end of September, and, after that, we have to consider a second Bill. Is it not presumptuous to go ahead and ignore that?

3612. Mr Stewart: It may be a matter of opinion whether it is presumptuous. The normal convention in these matters is that one does not take a step such as appointing a chairperson or members of an organisation in advance of the Second Stage of a Bill. However, having reached the Second Stage successfully, it is the settled will of the Assembly that there will be an ESA and that there will be legislation. It is not presumptuous or inappropriate for us to prepare for implementation on the basis of the decision that the Assembly has taken.

3613. Mr McCausland: At what point will you start to advertise for members?

3614. Mr Stewart: That could follow fairly quickly.

3615. Mr McCausland: Even though there is still a great deal that we do not know about it?

3616. The point that I am trying to make is that this sends out totally the wrong signal. It gives a sense of a Department that wants to ram everything through by force, come what may. As John O’Dowd said earlier, this is one of the biggest issues to face the Committee, the Assembly and our society for a very long time, because education is so fundamental. That is reflected in the strength of feeling and the passion of all the sectors that attend the Committee.

3617. We used the word consensus and talked about trying to reach accommodation. Is rushing ahead pre-emptively the best way to go about it?

3618. Mr Stewart: We do not see it as rushing ahead or as being pre-emptive.

3619. Mr McCausland: Others might.

3620. Mr Stewart: I accept that. However, I am sure that you accept that there will be an organisation and it ought to have a chairperson; therefore, it seems a reasonable step for us to take. When it comes to appointing members, we will have to make a judgement. If there was an emerging consensus that the number of members ought not to be as specified in the Bill — if that is the way the political wind is blowing — that might affect the Department’s timing.

3621. However, that is not the case at present. The Bill says what it says about the number of members, and until — or unless — the Assembly and the Executive tell us otherwise, we will proceed on that basis.

3622. Mr Elliott: I wish to refer to your paper on ownership and representation. Paragraph 10 states:

“In the case of Catholic education, the ownership and representative functions will both reside with the Catholic trustees. This cannot be replicated exactly for the controlled sector. However, the Department wishes the TRC to continue to be a leading voice in the controlled sector, and for the TRC’s role, where possible, to reflect that of the trustees."

3623. The problem is that it cannot do so under the provisions of the Bill. What is the difference between the Catholic role, as outlined in paragraph 10 and the second option in paragraph 19, where it states that the roles of submitting authority and the ownership body are basically the same? What is the difference between those roles? Why can you not find a way around putting the TRC onto that?

3624. Mr Stewart: The way around it would be the oft-discussed potential for change to section 6 of the Northern Ireland Act 1998. In response to your question, I will pick up on a point that Nelson made. I described it as merely a technical obstacle. That is all that it can be in respect of taking forward legislation or creating a mechanism. What I meant by that — and it is borne out by the parts of the paper that you quoted — is that there is no policy objection to the TRC’s playing a significant role in the controlled sector — far from it. We value the role that they play, and we want to find a way for them to continue to play that role.

3625. Mr Elliott: Do you accept that you cannot do that under the current proposals?

3626. Mr Stewart: I accept that there is a technical obstruction to their doing so in the way that you and they wish. In describing it as merely a technical obstruction, I should make the important point that changing section 6 is merely a technical matter for me; however, it is a more significant political matter for Committee members and the Executive. I will leave that thought with you.

3627. In respect of the differences between the roles, it is our contention that there would be little difference in the practical operation. However, there would be some difference, because in one sector two sets of functions would reside in one place, and in another sector they would be split into two places. However, in respect of how they would operate, we can get close to the point where there is no practical or real difference between them. Crucially, we can ensure that the TRC plays a leading role in the functions that it tells us are the most important.

3628. Mr Elliott: How will they do that? They will not be on the body as of right.

3629. Mr Stewart: They can be on the representative body as of right, because it will not be enshrined in legislation. It does not attract the restrictions of section 6, so there is no reason why the TRC cannot be given guaranteed membership of the representative body.

3630. Mr Elliott: However, you cannot tie that up with the ownership body.

3631. Mr Stewart: No.

3632. Mr Elliott: According to paragraph 10, Catholics have the right to be given guaranteed membership.

3633. Mr Stewart: It is not that they have a right to that in legislation; it is that they are de facto the owners of Catholic schools. Therefore, it is not that we have ever passed legislation that has put them in a particular position; they simply own the schools.

3634. Mr Elliott: Why is the representative body not in legislation? If the representative body was in legislation, they could not perform that role.

3635. Mr Stewart: We would run into the same problem. The Committee encouraged the Minister to take a policy decision that none of the representative bodies should be statutory.

3636. Mr Elliott: We need to resolve the issue. If it is not resolved, I will not put up my hand to support it.

3637. Mr Lunn: Nelson made the point that the appointment of the chairperson could be made fairly soon, which, as you said, could be quickly followed by the advertisement for members of the ESA, even though we do not yet know, frankly, whether there will be an ESA or how many members it might have. You said that it will depend on how the political wind is blowing.

3638. We will not know how many board members are required until the Bill comes before the House; it is not a matter of political wind. You might pick up a vibe that some of us would like to see a bigger board with a different composition; others might be content with it as it is. I can see the rationale for appointing a chairperson quickly, but not for appointing anyone beyond that.

3639. Mr Stewart: It is an issue of risk management. You are right — I cannot predict what the Assembly might decide when the Bill receives its Consideration Stage. My reference to political wind meant that if there was a resolved Committee view to change the number of members, with which the Minister agreed, we would not ignore that; we would take it into account in our preparations to recruit members.

3640. However, that is not the case. At present, we have to proceed with the timetable, policy and legislation that the Executive and Assembly have set for us. That means that we need to get certain things under way now.

3641. Mr Lunn: Looking for a resolved Committee view followed by the agreement of the Minister is reaching for the stars.

3642. Mr Stewart: You have to admire my faith. [Laughter.]

3643. Mr Lunn: I want to go back to section 6 of the Northern Ireland Act 1998, because I have never come across it before. Paragraph 5 of your submission states that:

“Provisions giving the TRC membership rights are likely to be outside the legislative competence of the Assembly, as defined by section 6 of the N.I. Act 1998."

3644. Why does it not say “are outside"? Why does it say “likely"? Is there some doubt about it?

3645. Mr Stewart: There is no doubt in my mind. It is typical Civil Service reticence and caution in using language. They are not formally outside the legislative competence of the Assembly until we attempt to introduce them, and the Speaker says no. At that point, they would be formally outside the legislative competence of the Assembly. I have no doubt that it would not be possible to take forward such a provision.

3646. Mr Lunn: How does section 6 exclude our right to give the TRC membership rights but allow us to give local councillors automatic membership rights?

3647. Mr Stewart: Section 6 does not permit legislation that discriminates on grounds of religious or political opinion. Specifying or reserving seats for local councillors might be described as discriminating on the grounds of political status, as opposed to political opinion. That is not unlawful.

3648. Mr Lunn: The word “technical" has been used a great deal, and it is technical stuff.

3649. Mr Stewart: It is. Section 6 is an extremely blunt instrument; it imposes a significant constraint on what one can do in legislation.

3650. Mr Lunn: I am encouraged by the notion that it is purely technical and not a sinister doctrinal reason for excluding a certain body of people.

3651. Mr Stewart: There is no policy intention to exclude the TRC. However, as a caveat, let me say that in describing it as a technical problem, I do not want to underestimate the political significance of any change to section 6, which could be profound.

3652. Mr Lunn: The first few lines of your paper show that you would encourage the TRC to nominate individuals to the ESA.

3653. Mr Stewart: That is correct. Everyone wants to see the TRC play a leading role, not only on the representative body but on the ownership body. The contribution that the TRC has made and continues to make, and its historical association and strong affinity with the controlled sector, makes its representatives ideal members of the ownership body.

3654. Mr Lunn: There seems to be so much common ground that it would be amazing if we could not find a way round it. Tom and Basil have put down strong markers, and I completely agree with them. We have to sort it out. Legislators and lawyers will know more about section 6 than I do, but it does not seem to be insuperable. We cannot blame section 6.

3655. Mr Stewart: You say “blame"; I say recognise. There is a great deal of common ground in wanting to accommodate the role that the TRC wishes to play; however, we face difficulties in doing that. We were challenged to be creative. The Civil Service in general and the Department of Education in particular have not always enjoyed a reputation with the Committee for creativity, but we will do our best to come up with solutions to this difficulty.

3656. The Chairperson: In conclusion, Chris, I thought that the Minister was considering the composition of the board; is that the case?

3657. Mr Stewart: I have put members’ points to her, but, as yet, she has not indicated any change.

3658. The Chairperson: During our exchanges you referred to the need for legal opinion. May I take it that the Department will come back to the Committee as soon as possible on those issues?

3659. The Chairperson: Yes; it will.

3660. Miss McIlveen: For members’ information, the appointment of the chair of the ESA is confirmed from September 09. No academic qualification is required for the three-days-a-week, £33,000 a year plus travel and subsistence allowances post; therefore, it is pretty well paid.

3661. The Chairperson: There will be resignations from the Education Committee and applications for that position.

3662. Mr O’Dowd: The salary is £7,000 less than the Health Minister gave the head of his board.

3663. The Chairperson: Thank you very much, Chris.

22 April 2009

Witnesses:

Rev Ian Ellis
Rev Trevor Gribben
Rev Robert Herron
Rev Trevor Jamieson

Transferor Representatives’ Council

3664. The Chairperson of the Committee for Education (Mr Storey): This morning I welcome members of the Transferor Representatives’ Council (TRC) to the Committee: its chairman, Rev Robert Herron, Rev Trevor Gribben, Rev Trevor Jamieson, and Rev Ian Ellis. Gentlemen, I invite you to make your presentation, after which members will have the opportunity to ask questions. Thank you.

3665. Rev Robert Herron (Transferor Representatives’ Council): Thank you, Chairman, for the welcome and also for the opportunity to address the Committee. You have already received some of our papers, which include our response to the Education Bill and, relevant to that, our response to policy paper 20. We have also produced a summary sheet of other points that we want to make during the meeting.

3666. At the outset, I will say that although there are several issues on our summary sheet, our major focus will be on one of them, namely representation. If members have questions on other issues, however, we are happy to take them. Trevor Gribben may comment on religious education. Ian Ellis will discuss our main concern of representation.

3667. We do not want to be negative; we want to make a positive contribution. That said, we have serious concerns. We feel that we are starting off on the back foot. We had to argue our case strongly on transferors’ representation on schools’ boards of governors. We appreciate the listening ear that political parties have given us, and we acknowledge the response to our representations. Ian will address the problem of representation, which must be solved.

3668. Rev Ian Ellis (Transferor Representatives’ Council): Thank you, Chairman. I will address the first page of the sheet containing our summary points. I want to say a few words about our vision for education and why we believe that Churches ought to be involved in it. It sets the context of what is important to us as Churches.

3669. The transferor Churches are fully committed to public-sector education; that is demonstrated through our involvement as school governors. At present, schools’ boards of governors are being reconstituted for the next round of four years. The four of us are involved in ringing people who already serve on boards of governors and asking them whether they want to serve for another four years.

3670. In doing that, we have become aware of the scale of governors’ dedication and commitment. Almost everyone we ask says that they will serve again; only a few say that they have done their term and want to be replaced. Largely, we get a positive response. There are some 1,800 governors throughout the Province; that is a big commitment from the Church to provide volunteer governors to schools.

3671. That demonstrates where we as Churches are at grass-roots level in schools by providing that kind of input into education. However, when we transferred our schools, we did more than that and we were given more than that; we were given a role and a voice in the management of the schools’ estate across an area board as well, and I want to return to that point.

3672. We do not feel that we are in education to dominate or control schools; however, we feel that we have an influence to bring to bear and a contribution to make to what is important in education. We believe that, across Northern Ireland, most parents want their children taught in a context of Christian faith. That seems to be demonstrated in all the censuses and polls.

3673. Across Northern Ireland, 85% of the population declare themselves to be of a Christian denomination; in the controlled sector, some 78% of children are from the Protestant community. There is, therefore, a very strong connection with our own community in the schools that we represent. It is also important to acknowledge that controlled schools have a diversity of beliefs, but the statistics show that the majority belief is from the Protestant Churches, and the transferor Churches represent about two thirds of those ? 86% of the 78% are from our Churches. It is from there that we get our base.

3674. We are keen to emphasise that we are not in schools to dominate but to contribute a view of education that, we believe, parents share, and to do that with other partners in education and with those who have equal rights to participation. Christianity is still the dominant social determinant in Ireland; there are other faiths, and those of no faiths, and we are able and willing to work them. In our vision statement for controlled-sector schools we say that schools should foster tolerance of and respect for the beliefs of others and also respect the rights of those with no religious belief. It is a subtle influence in education, but it is real and is based on our Christian faith.

3675. I can give an example of that influence: ‘Newsround’ on children’s BBC had an interesting survey this week than showed that children from Northern Ireland say their prayers more than children from other parts of the UK ? 57% of children in Northern Ireland pray as opposed to 22% in the UK generally.

3676. The Chairperson: Perhaps that is because of the politicians that they have. [Laughter.]

3677. Rev Ian Ellis: They need to pray for as much help as possible. [Laughter.] That survey is a wee indicator of the kind of people that we Irish are; there is a latent spirituality that sets the tone, I believe, for our schools as well.

3678. However, to come to the substantive point: in the 1920s and 1930s, we handed over control of our schools to the state. It is important to note that we did not hand over ownership of the schools, because when those schools cease to be used as education establishments, there are reversionary rights under which they return to the Churches. To safeguard that, Churches were given a statutory place on area boards to have oversight of the planning and safeguarding of those properties. In later legislation, we were given places on the boards of all controlled schools, not just those that we had owned; therefore, it was recognised that transferors had an oversight role in the management and planning of the controlled-schools estate. We believe that the Education Bill removes that statutory right, which was about safeguarding the schools that Churches established and to safeguard an interest in planning for their future.

3679. Among the proposals in the legislation is one for a separate ownership body. It rejects the idea that the education and skills authority could be the ownership body of the controlled-schools estate because there is a feeling that the ESA would in some way contaminate or be influenced.

3680. However, whatever model is proposed, transferors should have a right to representation on the proposed body.

3681. One of the proposals is a separate ownership body. We had a helpful discussion with departmental officials, including Chris Stewart, who explained some of the proposals to us. Chris was also able to tell us that, because of the application of equality legislation, transferors would not have places by right on any ownership body. It would be up to Churches to apply and be subject to an appointments process. That seems to us to be a serious injustice and a denial of rights that were given to us.

3682. More than that, it is also about parity of esteem, because of how that works out in other sectors. For example, our Catholic colleagues will continue to have a place by right on an ownership body and will continue to have decision-making powers regarding planning of their schools estate; yet the Protestant Churches will no longer have a role by right in any decision making regarding the control of the schools estate or whatever it will be called in the future.

3683. There seems to be a huge injustice and a disparity in decision-making and the rights of the Protestant community; we wish to make that point strongly this morning. It is a conundrum. One can see in the policy papers a great struggle with finding a place for the controlled-schools estate and a representation for that sector; a body that will somehow speak for its ownership and its planning for the future. All the models outlined in the policy paper pose problems for us. The basic problem is that there will be no place by right for transferring Churches in an ownership body — a body that will have a say in the planning of the controlled-schools estate in the future.

3684. We are perfectly happy with the idea of a representative body, because we believe that the controlled estate needs a cohesive body to speak for it and to plan for it and to have an input into its ethos. Anyone on that body would need to have a place on an ownership body, because ultimately that will be the body that makes the decisions on new development plans or the disposal of previous estate.

3685. Whatever model is arrived at — and there must be some creativity with ideas; you MLAs came up with a solution to the problem of governors — it must be a solution that enables the two major traditions in Northern Ireland to feel that they have parity of esteem and parity in protection of ethos. A failure to do that would be a denial of parity of treatment to the two major communities in Northern Ireland.

3686. Those are the general points that we want to make at the moment. Trevor wants to make a further comment about support for religious education.

3687. Rev Trevor Gribben (Transferor Representatives’ Council): I affirm everything that Ian said. The phrase with which he ended is where I would like to begin: parity of protection of ethos. The transferring Churches want to see our ethos as protected as the ethos of any other sector or any other Church. The transferor Churches’ approach to religious education has always been different from that of other Churches; we have never been interested in the concept of religious formation as a part of education, but the concept of religious education has been valued by all our Churches and parents.

3688. Our submission refers to the new role of the ESA in the training and advisory support services for teachers. We wish to make the point strongly that we feel that, under current systems, support for religious education in the controlled sector has constantly diminished. As advisory officers either retire or move on from posts in education and library boards, their posts are often not filled. On occasions, a religious education advisory officer giving support to schools in the controlled sector has to multitask that with perhaps several other elements of his or her job description.

3689. It is important for religious education to have the protection of an advisory support service, for teachers to receive the necessary backup and for that compulsory part of the syllabus to be given the same support as any other subject. We note the proposal for that support to be transferred to the ESA under the new arrangements, and we want to put down a strong marker that a support service for religious education must be provided.

3690. Linked to that is the issue of inspection, to which we also refer in our submission. Religious education is taught by professionals, and we want them to be trained in the delivery of religious education and to be as professional as any other teacher; we also advocate that they be inspected professionally. The current system whereby boards of governors must request inspections of religious education before inspection is not satisfactory. At its meeting tomorrow night, a board may pass a resolution to inspect, but if a school’s inspection is not for two years’ time, the inspection of religious education may not take place. Often, religious education is not inspected in controlled schools, even when a board of governors has expressed its desire for that to happen.

3691. At point 6, we raise the issue of inspections by laypersons. We note that legislation provides an opportunity for specialists to work alongside the inspectorate on specialist subjects. Often, the laypeople are teachers, perhaps of religious education, who accompany an inspector whose speciality may not be in that subject. We want parity of treatment for religious education in controlled schools, both in the support and advisory service and inspection. That is a sub-point of the protection of ethos. The continuation of public worship, the Christian ethos of a school and the place of religious education are all part of that protected ethos.

3692. The Chairperson: Thank you for your presentation and for your detailed submission setting out many of the issues arising from paper 20. I want to pick up on the issues relating to the body that would be established to own the controlled sector. Given the Education and Libraries (Northern Ireland) Order 1986 and all that flows from it, if you had a choice, on which of the two would you prefer representation: the ESA board or a body established to own the controlled sector?

3693. Rev Ian Ellis: That would depend on the functions of an ownership body. Our response to policy paper 20 sets out a range of functions for the ownership body, some of which seem to duplicate those of a representational body. At the end of the day, we were not sure which body would have the final say on planning, disposal, area-based work, ethos or the nomination of governors. There seems to be a considerable overlap between those two bodies. Whatever the outcome, we ought to have a place by right. We were told that it is not possible for us to be represented on the main board, which will be made up of technocrats or local councillors.

3694. Rev Robert Herron: The functions of the ownership body are our main concern; ownership itself is not a major issue for us. It would depend on what functions owners would be given. We wonder about the logic of the situation: how can the ESA be a publicly appointed body and, at the same time, be accused of bias? That implies a problem with the process of public appointments.

3695. The Chairperson: Speaking personally, there is also an issue about how to deal with equality or inequality.

3696. On the one hand, one group argues that the education system is exempt from certain elements of equality legislation; that group has a case, given the fact that, for example, the Catholic certificate gives a preference to one sector of the educational world.

3697. On the other hand, we have been told that the establishment of a body that is to govern, or be responsible for, the ownership of the controlled estate must be subject to equality legislation. Do you see that as an attempt to perpetuate the inequality in the system?

3698. Is it a fair reflection of school provision in Northern Ireland at present to say that the various sectors are not being treated equally in legislation and in practice? Do you agree that an opportunity exists, if people are willing, to address inequality — which is the Minister’s view — to get it right and to create a level playing field for the first time in a long time in how education is delivered?

3699. Rev Robert Herron: Some of my colleagues may also want to speak on that matter.

3700. We do not underestimate the complexity and difficulty of bringing about change in the education system, as it has evolved over years and has included compromises and political agreements, and different solutions have been found for the different issues that have arisen. Changing or tinkering with one part of the system will have a knock-on effect on the rest of it.

3701. The Transferor Representatives’ Council is looking for some kind of parity with the Catholic Trustees. The context has changed because, today, all Northern Ireland schools’ capital and revenue are 100% funded. Therefore, I am not sure what ownership means in that context and why it is being used at all as a model for developing the future of the education system.

3702. I could speak at length on the matter. In my experience, vested interests and issues of ownership add to the difficulty of finding solutions for, and agreement on, area planning at local level.

3703. Some of my colleagues and I addressed the issue of teacher appointments at another Committee; the Churches are concerned about it.

3704. Rev Trevor Gribben: The concept that the transferring Churches cannot be represented in the controlled sector because of equality legislation when other Churches are represented in another sector is totally illogical. The school system in Northern Ireland is 100% publicly funded; therefore, equality legislation should be applied across that system as a whole.

3705. To speak bluntly, if one community is represented in one sector, it is equal for another community to be represented in another sector. That is equality. Under current legislation, the transferring Churches have a legislative right to be involved in the controlled sector; they also have an historic right, because of the transfer and ownership of schools in the twentieth century. Therefore, for those Churches to be told that they can no longer be included because of equality legislation is, basically, discrimination, given the fact that another Church can be involved in another sector.

3706. The equality legislation is being applied through the ownership model. Since every school receives 100% funding, the entire educational community should be considered together. People should look at the whole picture and ask whether it is fair. It is a gross injustice for one community’s Church to be represented in one sector and for other community’s Churches to be excluded from another sector because of equality legislation.

3707. The Chairperson: This is a very wide-ranging issue, and I want to move to questions from members.

3708. However, on that point, the Minister said that there were “structural" inequalities. The Committee wrote to the Minister last October asking her to set out those structural inequalities; it is mid-April and the Committee has still not received a reply. Transferor representation is an issue that the Committee must get to the bottom of, and we have the opportunity to deal with it. As the Committee endeavours to do that, The TRC’s comments and views will be very welcome.

3709. Rev Trevor Gribben: As Ian said, we are not the only voice in the controlled sector; we want to state that clearly. However, the statistics that we have given you, which are from the census and from the Department, show that the TRC Churches represent two thirds of pupils in the controlled sector.

3710. Therefore, excluding the TRC Churches from representation in that sector because it is difficult to find how the other third will be represented appears ludicrous to us.

3711. Mr Lunn: On the matter of equality, it appears that the council has been told that granting it automatic rights of membership to the ESA would breach equality legislation. The Department seems to put that slightly differently by stating in paragraph 3 of its review of public administration response that:

“Appointments will reflect the merit principle, and no organisation will be given automatic membership rights."

3712. I will be asking Chris Stewart the same question later, but please give me your thoughts on that.

3713. The first qualification for membership for the majority of local councillors — who may not represent an organisation but who do represent a significant grouping — is that they must be members of a body of local councillors. That seems to contrast with your council’s exclusion. Has the TRC anything to say about that?

3714. Rev Robert Herron: We are talking about a political decision.

3715. Mr Lunn: I am not asking about the merit of appointing councillors to the ESA; however, there appears to be a contradiction on the basis of equality.

3716. Rev Robert Herron: That may be the case.

3717. Rev Ian Ellis: We are not here to bash politicians; we do not want to do that.

3718. Rev Robert Herron: Politicians, some of whom are members of the Committee, are involved in the Western Education and Library Board (WELB), which I have chaired for a couple of years. I believe that politicians have made a positive contribution to the board. I do not want to take away from that good work — their knowledge has helped to find local solutions to difficulties. I have more of an issue with the ESA’s ability in that area than with its representational make up.

3719. Mr Lunn: My remarks have been taken up wrongly. I am not asking about the merit of councillors as contributors to the ESA — I am sure councillors with a contribution to make can be found somewhere — I am asking about equality.

3720. If organisations are not given automatic membership rights, how is the word “organisation" to be defined? The organisation or group in question could be the Northern Ireland Local Government Association (NILGA). However, a selected grouping of people will have automatic membership rights to the ESA. Yet, historically, I completely agree that the TRC is being denied its rightful place on that authority.

3721. Rev Ian Ellis: We agree with that analysis. We believe that to be unfair.

3722. Rev Trevor Gribben: I do not doubt that once a certain number of councillors has been appointed, an attempt will be made to create balances in that group and that it will not consist of councillors from just one section of the community or from a single party. It is not unreasonable to suggest that there should be representatives of the Churches — say two or three — and to have a balance in that group as a way of bringing several Churches into the ESA. There are many creative ways of doing that in Northern Ireland, provided that the will exists.

3723. Mr Lunn: I am beginning to wonder who the politicians are at the meeting, Chairman. Thank you, gentlemen.

3724. The Chairperson: We will ask Chris later about the issue concerning definitions. Councillors, for example, are to be appointed on merit and could, therefore, be all unionists or all nationalists. A publicly-owned body would be subject to section 75, and consideration would have to be given to a whole raft of views. Given your comment that you represent 85% of the Protestant community, there is a question about how that circle can be squared.

3725. Mr McCausland: I welcome the fact that the issue of equality has been placed high on the agenda. The point was made earlier that we have had an ad hoc arrangement whereby certain aspects have been added on over the years and changes have been made. The current system already has inequalities, and there is a danger that we will have a system that has even more inequalities. However, now that we have started to deconstruct the education architecture and put it together again, there is an opportunity to address those inequalities, and it is one that should not be missed.

3726. You said that the Roman Catholic Church is represented on the ownership body for the maintained sector. I would go further and say that the Roman Catholic Church is the de facto ownership body. The trustees are all bishops, and, as a Roman Catholic layman pointed out to me, laypeople cannot get onto that board. There is a clearly a disparity between the situation in one sector and other sectors.

3727. I am interested in your point about legislation, which is a matter that we have raised with Chris Stewart. I would focus more on the ownership and representative body for the controlled sector rather than on the ESA. As you rightly said, the children who attend those schools are overwhelmingly from Protestant churches. Did Chris Stewart give any indication about how to resolve the problem of equality legislation preventing the establishment of a statutory ownership body that reflects the community that the schools serve? Or, did he merely acknowledge that it is a difficulty?

3728. Rev Ian Ellis: Chris can verify his position but, in our initial conversation with him, I think that he was saying that the ownership body would have to be a non-departmental public body and that equality legislation would, therefore, restrict membership. I think that there was a suggestion that some of the ownership body’s powers may be devolved to a representational body. It would be easier for us to find our way on to a representational body because we are represented in the schools. Considering that option may be a way forward, and that is why I responded to Mervyn’s question about which of the two we wanted by saying that it depends on function. There may be a way forward in undertaking some creative thinking about what roles and functions the two bodies have.

3729. Mr McCausland: Did Chris come back on the point that shifting responsibilities from one body to the other would create inequality because the ownership bodies would have different powers?

3730. Rev Ian Ellis: We have not heard anything more since that initial conversation.

3731. Mr McCausland: Changing the ownership bodies would raise issues of inequality. There would be a high-level ownership body with a lot of powers in one sector and a lower-level ownership body with limited powers in another sector.

3732. Surely schools could effectively thumb their nose at a purely voluntary and representational body — to which powers had been shifted from a statutory ownership body — and tell it to go away because it has no influence. In trying to resolve one problem, we would be creating two new inequalities. The best way to address the matter may be to go back and ascertain what the legislative problem is, because the education system already has equality exemptions in regard to teaching appointments. Perhaps we should consider that.

3733. Rev Robert Herron: That is partly why, for us, it is an equality and a rights issue. It is about rights of representation.

3734. The Chairperson: In fairness to the TRC representatives, Nelson, they received the response from the Department only today. They will have an opportunity to respond to that as, obviously, there will be issues. However, it is interesting that in its responses to the issues of ownership and representation — and this is the point that Nelson made — the Department said that:

“each will be associated with separate and distinct functions. In the case of Catholic education, the ownership and representative functions will both reside with the Catholic trustees. This cannot be replicated exactly for the controlled sector."

3735. A clear issue continues to emanate — we do not have equality. That information has been passed to you, so you will have an opportunity to comment on that.

3736. Rev Trevor Gribben: In response to that, and to what Mr McCausland said, we feel that the controlled sector is already a weak sector. Whatever comes out of the change must strengthen the controlled sector, give it a strong voice, and make it cohesive. It is vitally important that the sector is able to have an advocacy role with the Department and with the ESA. Whatever the arrangements are, the controlled sector’s voice, and therefore the TRC’s voice within it, has to be as strong as that of any other sector. That is equality. As far as we are concerned, anything that weakens the cohesiveness of the controlled sector, and does not take the opportunity to build on it, is a retrograde step.

3737. Rev Ian Ellis: We have concerns about the proposal in policy paper 20 that schools could become their own owners. It is not that we are against autonomy, or against schools being given some powers to make their own decisions; however, we are afraid that the controlled sector could become fragmented, with large pieces of it floating off on their own. To re-emphasise what Trevor said: a strong cohesive force is needed to keep the sector together, and that is what a representational body should do. That is an outworking of one of those proposals.

3738. Mr Elliott: Thank you very much for your presentation and for the information that you provided. Reverend Gribben did, eventually, get to the point that I was going to make about discrimination. From what I have heard and what I have read, I feel that you have a sense of discrimination. When you say that the controlled sector is weak, do you mean that the Transferor Representatives’ Council’s position within the sector is weak, or, that the controlled sector is weak overall?

3739. Rev Trevor Gribben: Overall, we feel that the controlled sector, as a cohesive sector, is weak. Within the sector, the transferors’ voice — which is a significant, although not the only, voice within the sector — has no support. For example, we are probably one of the only bodies to come before you that has to carry out our role in our spare time. We have to drop other pieces of work and go off and hire solicitors to help us to carry out our role. However, other sectors that come before you have publicly-funded officials to draw up their papers. Already, the TRC’s voice within the controlled sector is weak. There is no one with publicly-funded support that could come before the Committee and speak for that sector.

3740. Mr Elliott: When we first heard about the Education Bill, we thought that it was going to be all-embracing. We believed that it would take in all bodies and that there would be an end to separate representation for the integrated sector, the Irish-medium sector and the Catholic maintained sector. We thought that everything would come under one remit. Now, it appears that we are moving away from that.

3741. Would you prefer all sectors to be brought under one body or would you prefer each body to retain its own identity and for the TRC to remain as a separate entity and, as Reverend Gribben said, strengthen its position?

3742. Rev Ian Ellis: There are two answers to that question, one of which is idealistic and the other pragmatic. Given that all schools are, effectively, funded by the public purse, ideally, it would be wonderful if everything was as one. Furthermore, if a funding rather than an ownership model could be adopted, there would be one ownership body, and all sectors would be represented.

3743. Pragmatism dictates that that would never work because the Catholic sector will always want to have a say as the trustees are the technical owners of their schools, and there is a resistance to tamper with that. Pragmatism also suggests that it has worked reasonably well for some sectors to have their own representative bodies. Therefore, the expedient answer is that it seems as though there will be different bodies in the future, and, if that is the case, we want to be part of the support body or the representational body for the controlled sector.

3744. Although we believe that the controlled sector is weak at the moment, it has been supported well in the past by the area boards, and we do not wish to undermine the good work that those boards have done in speaking for the controlled sector. Any boards that I have been associated with have always had a special interest in the controlled sector as a result of their being the technical owners of the schools. However, the area boards have also had to be neutral and provide education provision to all sectors of their work.

3745. To repeat, if we are going to different bodies — and it looks as though we will — there ought to be a strong representational body for the controlled sector. We want to be part of, and contribute to, that body.

3746. Rev Robert Herron: One of our concerns is that some of the proposals could entrench education in segregated systems forever and leave no room for the concept of a shared future. In the past, as churches, we have made compromises in not providing denominational education in our schools. That has been an agreement between us, but I do wonder where all this will take us.

3747. Mr D Bradley: What were the reasons for the churches transferring ownership of their schools to the state? Furthermore, what advantages did the churches get from those transfers?

3748. Mr Elliott: Do any of the witnesses remember those transfers? [Laughter.]

3749. Rev Trevor Gribben: Ian is the oldest and most senior member. [Laughter.]

3750. Rev Ian Ellis: The transfers were inextricably linked to the politics of that time. We effectively had a Protestant state for a Protestant people, and the churches felt that they were handing over their schools to a state that would be supportive of them.

3751. An economic element was also involved, because the churches realised that they could not continue to provide universal education from their own means. At that time, the theme of universal education was current across the British Isles, and it seemed to be a good idea to hand over our schools to invest in the future in Northern Ireland. Therefore, the churches provided the state with ready-made schools and placed those schools in the care of the state for the future. That was done on the understanding that the churches would have an oversight role and would thus safeguard the future education of children. It was a mixture of those considerations and a belief in the common good, because we knew that those schools needed to be improved and their facilities expanded. Only a state system funded by Government could achieve that.

3752. Our Catholic colleagues took a different view, as you know. They held that they could control the ethos of their schools only by retaining ownership of them. The irony of it all — and I say this without malice — is that the Catholic sector has ended up being 100% funded by the state. It retains ownership of its own schools and has a determining element in the control of its ethos and religious education. As a by-product of that, it also has its children taught in Christian formation, which is paid for by the state.

3753. With hindsight, our Catholic colleagues have come out of it very well. We are in the business of partnership and, as church people with an interest in education, we see it as part of the ongoing mission of the church to be involved in education. We want to be involved in education, but in partnership with others. We live in a more diverse world now, and our views are shared by many; there are those who disagree with us, but we want to work in partnership with them. That is a potted history of what happened and why.

3754. Mr D Bradley: Thank you for that. The reason I asked that question was to establish the fact that we are working in an historical context. Things change, and people react to that in different ways. Reverend Herron said that plasters have been stuck on here and there to try to repair and improve things, and we are left with this situation. At present, you feel that your voice is not heard to the extent that you want it to be. In the past, county education committees were supportive towards your schools, and in recent times, that has been true of the education and library boards. That support has meant that, as transferors, your voice was behind those organisations, rather than to the fore, and perhaps became lost.

3755. In an evidence session with the Committee, representatives of the Catholic sector made the point several times that they were not asking for anything that they did not expect other sectors to be given. I do not get the impression that the Catholic sector is trying to dominate any other sector. It has stated in its papers and pronouncements that it is supportive of all sectors being treated equally. Unfortunately, historical circumstances may mean — for example with respect to the equality laws that you referred to earlier — that certain difficulties have arisen and we must try to overcome them.

3756. We are talking about some form of ownership body on the one hand, and on the other, a sectoral-support body. What sort of linkage do you see as necessary between those two bodies?

3757. Rev Trevor Gribben: Fundamentally, we see that as a potential problem. However, if that is going to be the system, the linkage must be something that goes beyond mere consultation of the sectoral-support body. On a particular proposal, the voice of the body may be only one of a potential 15,000 consultees, and it must carry weight. There must be a strong link. As Robert said earlier, it is down to functions. In one possible model, if an ownership body were simply the holding trustee, which operated merely on the instruction of another body, and all the key functions were with the sectoral body, that would be close to giving parity between sectors.

3758. I take the Chairperson’s point that there is a difference if the ownership and representative functions reside with one body. However, in a pragmatic way, if the sectoral-support body had most of the functions of, and the right to be involved with, the ownership body, and not to just be consulted as 20 other groups might be consulted, strengthening that relationship would be important.

3759. To answer your earlier point, we also want to affirm the right of protection of ethos for all sectors. We want to affirm that parity of protection of ethos counts for the Protestant and the Catholic sectors in education. However, the current proposals deny us that parity of the right to protect our ethos.

3760. Mr D Bradley: When you talked about the link between the sectoral-support body and the ownership body, you said that you would feel more content if the sectoral-support body had the majority of functions. Have you raised that point in your conversations with departmental officials? If so, what sort of response have you had?

3761. Rev Robert Herron: We were quite surprised by the content of policy paper 20. We were aware of a suggestion that an ownership body and a sectoral-support body should be created as distinct organisations. However, we were surprised to discover that the paper set out the functions that an ownership body would have on issues such as area planning and the nomination of governors. We were even more surprised when we discovered that an ownership body was being created that we did not have membership rights to.

3762. Rev Trevor Jamieson (Transferor Representatives’ Council): I will simply echo what Mr McCausland said. One of our grave concerns with the consultative role of the representative body would be that, eventually, a body with absolutely no power would be bypassed and become irrelevant; therefore, membership of such a body would be irrelevant.

3763. Mr B McCrea: Sort of like the Assembly, then.

3764. Rev Trevor Gribben: You may well say that; we could not possibly comment. [Laughter.]

3765. The Chairperson: Dominic Bradley said that there are difficulties that we have to overcome. We had difficulties, for example, about policing, and certain parties insisted that legislation had to be changed to overcome those. Some of us were not happy about the legislative method that was used, but it was used to overcome a difficulty.

3766. We cannot simply bypass the challenge that is posed by the Education Bill. The difficult issues must be addressed and resolutions to them must be included in the legislation. If they are not, the Bill will not pass. That is the reality. Inequality is not simply perceived; it is real. As we start to scrutinise the Bill, we can see it clearly. Regardless of what happened in the past — hindsight is a perfect science — we now have the opportunity to ensure that we get it right. That the Committee’s role. If we all say that we are making a new society, those are the issues that we must address.

3767. Rev Robert Herron: In some ways, the simplistic way of considering this is to say that it is a Protestant/Catholic issue. However, our special schools — which are controlled schools — serve the whole community. It is important that there is Catholic representation in the development of those schools. In some controlled schools in the west, approximately 90% of the children come from the Catholic community. I imagine that those schools are providing those children with a Catholic education.

3768. Mr D Bradley: Am I right that your main bone of contention is the fact that you will not have a place on that body by right? If it were possible to overcome that problem, how far forward would that bring you?

3769. Rev Trevor Gribben: That would address the issue of parity among sectors and would be a step towards dealing with the core issue. I want to link the issue to the comments made by Mr Bradley and the Chairperson: when Churches transferred control of the ownership of schools, they reached an agreement with the state that was based on trust and legislation. Policy paper 20 fundamentally ruptures that agreement and attempts to erase its legislative basis. Through devolution, the Assembly now represents the state, and we urge it not to rupture that trust and legislative basis, which is fundamental to us and our community.

3770. Miss McIlveen: Thank you for your presentation. We heard a lot today about equality, and I have a certain amount of sympathy with your concerns. However, given that you advocate the idea that voluntary grammar schools should continue to employ staff, and so on, I do not understand your comments about the single employing authority. That authority would, surely, ensure equality across all sectors, including your own. Will you expand on your earlier comments about clause 3?

3771. Rev Trevor Gribben: As Ian said earlier, in an ideal situation, one employing body would secure equality and necessary protection. In clause 3, people in our churches and some others feel strongly that the voluntary grammar sector should retain that employment right. In a pragmatic world, if different bodies will have employing rights, we must ensure equality. In an ideal world, the TRC would not oppose the notion of one employing body. People in the Protestant community and in our churches want to protect the independence of voluntary grammar schools. We are merely reflecting points that have been made to us. However, the TRC would be comfortable with the concept of one employing body.

3772. Some of my colleagues are involved, as individuals, in voluntary grammar schools. The Methodist Church, the Church of Ireland, and the Presbyterian Church have strong links with some schools. Therefore, our community has differing views. However, the TRC would be happy with a single employing authority for the reasons that you stated.

3773. Miss McIlveen: I wanted that clarification because the issue was included in your submission and had been mentioned previously. Your submission mentions the duty of boards of governors to achieve high standards of educational attainment and how the concept of lay governors challenging professional teachers about their work could lead to a breakdown of trust, and so on. What clarification do you want on that matter? What support would be required?

3774. Rev Ian Ellis: Everyone supports the concept of raising standards in schools — it would be foolish to say otherwise. We all want our children to do well and to do better, and we want underperforming schools to improve in the future. We support the principle of school improvement. However, we have served as members of boards of governors for many years and have developed relationships of trust and understanding with professional teachers and principals. If Government suddenly gives governors a responsibility for raising standards and challenging the staff performance, those relationships may be breached. It will be difficult for governors to fulfil that responsibility.

3775. In our response we suggest that governors will need substantial support in that challenge role if we want them to be able to perform those duties. At the minute, we are trying to re-enlist governors for the next round, and we are telephoning people and asking them to stand. If I were to tell them that we want them to take on a new role next time around that will require them to challenge the principal on his or her performance and the results and the level of pupils’ achievements, they might decide not to stand because it would bring them into a terrain on which they would be uncomfortable.

3776. We acknowledge that school improvement is a good objective, but we need to be careful about how it is implemented and the expectations that are placed upon governors. We are flagging up a concern about volunteers being expected to deliver a professional service.

3777. Miss McIlveen: I wanted to ask whether you told the individuals whom you phoned that governors’ roles might change. However, it seems that you did not.

3778. Rev Ian Ellis: No, we kept quiet about that. [Laughter.]

3779. Rev Robert Herron: We introduced that issue, because it was raised as a concern by folk at our general assembly. It is a role of governors to ensure that schools are well run and improve. However, sensitivity and professionalism are required, and a great deal of training is required to support and address those issues. Those are the main reasons that we included it in our response.

3780. Rev Trevor Gribben: The professional support that is necessary to enable governors to take on that role is vital. It is important that lay people, in the educational sense, have educational support if they are to take on such a challenging role. It must be handled sensitively.

3781. Miss McIlveen: It is critical that capacity building be built in.

3782. Rev Trevor Gribben: That is correct.

3783. Mr D Bradley: Boards of governors, individually or even collectively, would not be dealing with teachers on the chalk face; that would go through a principal and a senior management team. Under present circumstances, one could argue that there is a duty on boards of governors to ensure that standards in the school on whose board they sit are as high as possible.

3784. Rev Robert Herron: That is right. If there are issues involving a principal —

3785. Rev Trevor Jamieson: May I respond to that? I have sat on a few boards. The proposals cause a fundamental change in the dynamic of relationships. Those of us who are in the real world will recognise that the change in the functions of the boards of governors, with the principal’s guidance, will bring about a complete change in the dynamic of the relationship between the two. There is potential for conflict between boards of governors and principals. The issue of support echoes the second point, which relates to the need for a local presence throughout the system. Although we acknowledge the ESA and the concept that it will provide a comprehensive education system for the whole Province, there will be a need for a dynamic, vital, local presence that provides the support that the boards have provided in the past.

3786. Mr O’Dowd: I am not sure that the dynamic for boards of governors is changing so much. It may be more emphasised in the ESA, but the role of board of governors is to improve standards in schools and to hold the principal and the senior management team to account on those matters. I agree that there needs to be training and support for boards of governors, but if we are to raise standards in the controlled sector, the boards of governors are key. There is no doubt about that.

3787. I want to return to the issue that has dominated the meeting. You say that the TRC has a right to be on the ownership body, and you base that on legislation. To what legislation are you referring?

3788. Rev Trevor Gribben: The continuing rights of the TRC Churches to be involved in the wider oversight of education in the controlled sector outside boards of governors. That oversight exists now in our right to be represented on education and library boards, which own and control the controlled-schools sector.

3789. Those rights have evolved through education authorities to the education and library boards. We also have a right on the transfer of the control of ownership ? and Ian’s earlier point on that was subtle, and took me a long time to understand. We transferred control, but we did not give ownership away, because there is a reversionary right that ownership comes back to the Churches if the state no longer needs a school. Our right to guard the ethos of controlled schools was protected by being involved in the ownership body. That right has come directly down to the education and library boards, and the proposals in the Education Bill rupture that right.

3790. Rev Ian Ellis: The 1986 Order sets out that membership of the area boards is composed of different parties: local councillors, trustees and the transferors; the proportion of transferors on the boards is determined by the population of controlled schools. If the population of controlled schools moves up and down, the transferors’ proportion of seats on the area boards moves up and down slightly. There is, therefore, a direct link between controlled schools and the presence of transferors on an area board.

3791. Mr O’Dowd: I just wanted to clarify that for my own research. Politics in this society is often driven by the mantra that if one side has it, the other side has to have it. However, the Catholic Church owns its schools, and unless the Catholic Church gives up that ownership or the state nationalises its schools, that is how matters will remain. Therefore the ownership body of the Catholic-schools sector rests on that legal basis ? and it is a legal basis rather than a concession or an advantage given to one side. The Catholic Church owns its schools, and it, naturally, will be the ownership body.

3792. That is why I am trying to tease out the point about ownership of the controlled sector and the transferors’ right to ownership in it. I was not aware ? and it is an interesting point ? that if the state no longer requires a school, it reverts to the transferor Churches. Does a school automatically revert to the Church or is there a procedure to go through?

3793. Rev Trevor Gribben: There are fewer transferred schools in the system because new schools have been built and old schools have been knocked down. However, one school with which I was involved, and of which the member will know, was Cladymore primary school outside Markethill. When it ceased to be a primary school, a new school was built in Markethill and the small rural schools merged with it. In that case, Cladymore primary school reverted to the ownership of Cladymore Presbyterian church, which was the transferring body. That was a legal precedent, and one of the reasons why the Churches were given rights to be on the ownership bodies: to protect their rights of reversion but also to have oversight of those schools.

3794. We have never argued that we should comprise 100% of the ownership body: we recognise that the trustees own the schools, and that they, therefore, are the ownership body in legislation. Equally strongly in legislation, we are, by legal right, part of the ownership body of controlled schools, and we feel that that should be continued in the new legislation. That was a right given to us by the state as part of an agreement when our schools were transferred, and that right should continue.

3795. Mr O’Dowd: My last point goes back to what the Rev Trevor Gribben said about religious education: I did not pick up his whole point about the inspection of religious education. You said that if a board of governors passes a resolution, it might not be fully carried out. Could you go over that point again?

3796. Rev Trevor Gribben: Yes; it links to how the present system deals with religious education, and we fear that the new system might be even worse. Religious education is a compulsory subject, yet it does not receive the same resources as other subjects.

3797. Since the education and library boards’ advisory support service is shrinking, we want to ensure that there will be strong support in the ESA. Unlike other subjects, religious education is not inspected automatically when inspectors go to a school.

3798. A board of governors has to request an inspection; under the present system it has to request it just before the official inspection; a board of governors cannot pass a resolution that it wants religious education to be inspected now and at all points in future. When I was the chairperson of a board of governors, I was utterly surprised that inspectors did not inspect religious education, even though we had passed a resolution to that effect two years previously. That is a flaw in the system, but it is symptomatic of the fact that religious education is not resourced and supported as other subjects are.

3799. Rev Ian Ellis: Trevor is quite right about the process. In recent years, however, the Department has seen the need to enhance the support that religious education requires. When the new revised core syllabus was implemented, a piece of work was commenced with the Council for the Curriculum, Examinations and Assessment (CCEA), for example, to devise some new materials and to support religious education. We acknowledge that. It is not that there is no support; work is being carried out.

3800. However, looking to the future and the way that curriculum support is advancing, we must make sure that religious education does not become the Cinderella subject; it should receive parity of esteem with other subjects in the curriculum.

3801. Mr O’Dowd: I am surprised, and not just from a religious point of view. Religious education involves a great deal of reading and research, which could be used to improve literacy; therefore I am surprised that there is no inspection to assess how it is delivered.

3802. Rev Ian Ellis: One of the things that we discovered while working with CCEA is that there are strong links between religious education and other parts of the revised curriculum. Very obvious links can be made in relation to a child’s understanding of the world, relationships, reconciliation and living with others in diverse societies. That links strongly with religious education. Religious education has a strong place in the school curriculum, and we think that the Department is also convinced of that. We want more and more support.

3803. Mr D Bradley: Religious education is often one of the core subjects. I do not know whether there still are core subjects, but some schools used to designate English, maths and religious education as the three core subjects for GCSE choices.

3804. Rev Ian Ellis: It is one of the most popular GCSEs.

3805. Mr McCausland: One of the requirements under legislation for the Equality Commission, for example, is the need for its membership to be reflective of the Northern Ireland community. Should the ESA’s membership be reflective of the community of Northern Ireland since it is serving the entire community of Northern Ireland?

3806. Rev Trevor Gribben: Yes.

3807. Mr McCausland: My point is that some matters are in legislation and some are not. If something is not in legislation, it is forgotten about.

3808. My second point is about boards of governors. Not long ago, I attended a prize-giving in a Catholic maintained school. It was noticeable that the ethos was different from a similar event in the controlled sector in that the church, the parish, the school, the business community and the political community were all there very much as one; they were all supportive of one another. All those sectors endorsed education by being there and demonstrating that it was important and should be valued. I know that it is more complex, but what is your assessment of the comparison between that and practice in the controlled sector?

3809. Rev Robert Herron: It varies from school to school. I recently attended the opening of Lisneal College. The Minister also attended, and she chatted to me about the Church presence. It was very much a religious ceremony, but local politicians and folk from the community also attended.

3810. Rev Trevor Gribben: As we said earlier, capacity needs to be built into the controlled sector to protect and strengthen ethos, which is stronger in the primary sector than in the secondary sector.

3811. Mr McCausland: Is it stronger in rural areas than in the greater Belfast area, for example?

3812. Rev Trevor Gribben: It may be. I agree with Robert that it often depends on the school and its direction and ethos. It is not as universal; it is not as “catholic" with a small “c".

3813. Mr McCausland: Who was CCEA working with on developing those new materials, and are they finished?

3814. Rev Ian Ellis: A working group was established from a wide range of providers: advisers on religious education from the maintained and controlled sectors; representatives from Stranmillis University College and St Mary’s University College; members of the Northern Ireland Interfaith Forum to reflect the input from other religions, and representatives of Queen’s University Belfast and the University of Ulster. That wide-ranging group produced several new materials; one is a compendium of resources for world religions for Key Stage 3; and another resource, based on reconciliation, is designed to help pupils to understand that they live amongst a wide variety of children and how to break down barriers. The working group has provided some useful materials.

3815. Mr B McCrea: We have talked much about ownership, rights, legislation, and so forth. However, it strikes me as a case of the emperor having no clothes. It is fundamentally unfair for the Roman Catholic Church to have certain rights that the Protestant Churches do not. I do not care whether there is an historical or legal basis for that; it simply is not right. It is a moral question, and I want to put on record that any fudge that does not address that imbalance is fundamentally unacceptable to society.

3816. Having put that on record, and for the benefit of those from the Department who may be listening, if that imbalance is not redressed, our entire society is finished. It is morally questionable that we are even discussing it; we must find a solution. That is part of the argument that you good folk have presented to the Committee, and it is one of the reasons that the Ulster Unionist Party remains opposed to the entire ESA.

3817. Page 3 of your submission on policy paper 20 states:

“The government seeks to use equality arguments to betray its agreement and the principles underpinning its contract with the Churches and the Protestant Community."

3818. I am interested to hear what equality arguments have been put to you that support that statement.

3819. Rev Trevor Gribben: We consider it a fundamentally flawed way of applying principles of equality. It beggars belief that the Department often does not deem it necessary to carry out a full equality impact assessment on some of the papers, given the huge inequality that they create, to which you and other members referred. The system applies equality legislation sector by sector: it examined the maintained sector and decided not to apply equality legislation because the trustees owned the schools; it considered the controlled sector in isolation and bluntly said that there should not be so many Protestants on the ESA board because that would be unfair.

3820. However, if equality legislation were applied to all publicly owned schools, the Catholic Church and the Protestant Churches would both be represented in the oversight of education, which would be fair. The basic inequality of equality legislation is the consideration of its application in several narrow parts. Logically, if one considered an entire society in separate small bits, everything could be said to be unfair. Equality legislation must be applied to the entire education community, not sector by sector.

3821. Mr B McCrea: It would be useful to have a paper or correspondence on that subject, since equality legislation is supposed to be the bedrock of everything that we do. If the legislation is being applied in a way that is not conducive to its principles, that is the biggest gun in your armoury. However, you have not highlighted it sufficiently.

3822. Rev Robert Herron: That is exactly our point: ownership rather than funding is being used as the model, and that immediately disadvantages us.

3823. Mr B McCrea: I understand the funding point, because I have heard it made by other members. It will be in the Hansard report that some people said that voluntary grammar schools are 100% funded and will play by the same rules as everybody else. If that applies to voluntary grammars, it applies to the controlled sector too.

3824. We must find a better model — some solution must be found. However, there is a separate issue on which the TRC may want to reflect and that the Committee may want to take up, which is whether equality legislation that affects us all is being applied properly. I have the TRC’s comments and will talk to the witnesses afterwards, but it would be useful for them to write to the Committee on that subject.

3825. Having stated my absolute objection to that inequality, I will move on. The TRC is concerned about the absence of detail in the local ESA service arrangements. Will you expand on that? What principles or characteristics would the TRC like to see included?

3826. Rev Ian Ellis: I will quickly respond to that, but, as representatives on area education boards, Trevor Gribben and Robert Herron will provide a fuller answer.

3827. From being on a school board of governors, I know how much the principal depends upon the local area board. If, for example, a school’s boiler breaks down, they know whom to ring in the area board. That person not only knows the principal, but knows the school, the boiler and which boiler technician to contact to fix it. The board has detailed local knowledge and understanding.

3828. If there is a question about school finances in planning for the future, the governors can ring somebody in a local board who knows the school’s profile, its staffing commitment and something about the demographic direction in which the area is headed. That local knowledge means a great deal to school principals.

3829. As governors and people who work with schools, our concern is that that local touch could be jeopardised by a centralised authority, and I have tried to reflect that concern in our comments.

3830. Rev Trevor Jamieson: I echo that, and take the analogy further into support services, teaching, and the work that the classroom assistants’ services have done in area boards, particularly the Youth Service.

3831. A fair percentage of Youth Service work is done through voluntary organisations, many of which are church organisations. As Churches, our contact with local youth leaders and youth officers is invaluable. It would be disastrous for the Youth Service if that local contact were to be hived off to some other body, taken away from education altogether or completely centralised.

3832. Mr B McCrea: I do not wish to labour the point about change and the need for support — and I hear that the TRC does not have the professional support extended to others — but it strikes me that the TRC is in a good position to outline areas of support or the methodology that people may want to see adopted. If the TRC can find the time, it would be useful for the Committee to receive those suggestions.

3833. It is great to say, in principle, that a course of action will be taken, but, as Ian said, that involves logistics. I do not know whether that is something that the witnesses can do or whether they must feed their knowledge to somebody with the required logistical experience. However, it would be useful to find out.

3834. May I finish on the point almost at which we started? On the subject of putting councillors on the ESA boards, the TRC’s submission to the Committee states:

“The TRC recognizes that politicians believe that this provision safeguards democratic accountability."

3835. However, it also states that:

“councillors can be caught between… balancing the desires of constituents".

3836. How would you address that issue? Would including people from the TRC change the balance? How does the TRC propose to deal with the issues that it raises?

3837. Rev Robert Herron: The added difficulty that councillors have is that some of these issues arise at sensitive times when elections loom. That can lead to delay.

3838. Mr B McCrea: You can say things that we cannot, so spit it out.

3839. Rev Robert Herron: It is important that local councils in Northern Ireland develop their roles and responsibilities. Councillors do; there is no question about that and we all agree on it. However, I am not totally convinced that a role in the ESA is a way of doing that.

3840. Rev Trevor Gribben: That said, we recognise that there is a democratic deficit, caused by years of direct rule. There should be democratic accountability at every level in education; it depends, however, on how that is achieved and what the balance is. We need to find a good way forward. The balance on the education and library boards, where locally elected representatives sit alongside others representing other sectors and interests, works creatively at times, but often gets things done that would be hard for one group working on its own to achieve.

3841. Mr B McCrea: There are two ways of looking at the democratic aspect. Some suggest that at the next tier up at the ESA main board we should have MLAs, not councillors, represented; others say that that is unnecessary because the ESA can be held accountable through this Committee, the Minister and the Assembly. Have you any views on whether either of those arrangements would work?

3842. Rev Trevor Gribben: We have enough trouble sorting the Churches out without getting into a war between councillors and MLAs.

3843. Mr B McCrea: It is so much easier to fix other people’s problems than one’s own.

3844. Rev Trevor Gribben: Each of us may have private views, but the Transferor Representatives’ Council has no official view on that matter.

[Laughter.]

3845. The Chairperson: Now, there is a political answer.

3846. We want to turn to the departmental officials, and the witnesses are welcome to stay for that. Rev Robert Herron referred to the fact that the argument is about ownership as opposed to funding. Five hundred schools were transferred in the 1940s, some of which the Churches still own; but the Department cannot identify how many.

3847. Rev Robert Herron: One needs to identify deeds and transfers and perhaps, as we have recently been led to believe, some of the schools may have been operating under some kind of licensing agreement. It is complex.

3848. The Chairperson: When a school in my constituency was closed I was told that ownership was not a big issue; the school was simply closed and the detail was left to be sorted out. The North Eastern Education and Library Board was going to close the school, and the question of who owned it was left to lawyers. That is the problem. I want clarity on that point. I noticed that you raised that issue in your paper, and we will ask the departmental officials about it when they attend.

3849. Rev Trevor Gribben: We will be interested in the answer.

3850. The Chairperson: You may stay to hear it.

3851. Gentlemen, thank you for your evidence, your attendance and your papers. You will have an opportunity to come back to us about the response to the paper that the Department has given us today in response to your paper.

29 April 2009

Members present for all or part of the proceedings:
Mr Dominic Bradley (Deputy Chairperson)
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Edwin Poots

Witnesses:

Mr Eddie McArdle Mr Barnaby Ball Mrs Sally McKee		General Teaching Council Northern Ireland
Ms Alison Millar Ms Heather McKinstry Ms Helena McSherry		Northern Ireland Public Service Alliance
Mr Chris Stewart Mr John McGrath		Department of Education

3852. The Deputy Chairperson of the Committee for Education (Mr D Bradley): Good morning; you are very welcome. We are joined by representatives of the General Teaching Council for Northern Ireland, who will give evidence. Sally McKee will lead the delegation. Sally, I will give you an opportunity to introduce your colleagues and to make your presentation.

3853. Mrs Sally McKee (General Teaching Council for Northern Ireland): Thank you, Chairman. I am accompanied by Eddie McArdle, our registrar, and Barney Ball, our planning and corporate services manager. I will start our presentation, and they will make further comments.

3854. The General Teaching Council for Northern Ireland appreciates the opportunity to discuss issues in the Education Bill that affect the teaching profession and, in particular, the council’s work. Before I go into detail, it is important that I explain the council’s role, as it is already established in legislation, as well as its place in the education system.

3855. First, the GTC’s document entitled ‘Teaching: the Reflective Profession’, which we distributed at previous meetings with the Committee, has been endorsed by the Minister of Education and the Education and Training Inspectorate. It sets out, for the first time, the standards that are expected of teachers, both in competence and behaviour, so that all education partners have an agreed language with which to discuss education issues.

3856. Secondly, the GTC decides what qualifications are approved for any teacher who wants to enter the profession in Northern Ireland. Thirdly, as an obvious reflection of approval, the GTC now accredits initial teacher education courses. Fourthly, the GTC has a statutory responsibility under the Education (Northern Ireland) Order 1998 to offer advice to the Department of Education and employing authorities — from which the education and skills authority (ESA) will soon take over — on the following matters: training, career development and performance management of teachers; standards of teaching; and standards of conduct for teachers.

3857. Fifthly, the Bill’s most important provision, from our point of view, is that the GTC will have the role of independent regulator.

3858. In addition, the GTC is the only body capable of tracking teachers’ employment and the movement of teachers from other jurisdictions to Northern Ireland. The annual digest of statistics that is produced by the GTC, which, I am sure, the Committee finds useful, highlights issues of great significance with regard to manpower planning and the provision of professional development; two issues that are of particular concern to the council.

3859. Many people welcomed the decision to establish a regional authority as a way of making savings in order that front-line services could be augmented. Therefore, it is essential that the ESA, when it is established, does not duplicate the work of other bodies, such as the GTC. In any event, the council would not countenance any diminution of its role.

3860. In essence, the GTC plays a significant role, along with other bodies, such as the Education and Training Inspectorate, in safeguarding standards in education. A key part of our role is to provide society at large with a degree of reassurance about the quality of education that pupils and students can expect in schools and colleges. The Bill will enhance that. Having set our concerns in context, I will hand over to the registrar, Eddie McArdle.

3861. Mr Eddie McArdle (General Teaching Council for Northern Ireland): Chairman, you will have noticed that our submission is brief. It is brief for a simple reason: many issues in the Bill are, we believe, outwith our professional responsibility. That does not mean that we do not have an interest in them; however, we are not prepared to comment on issues that do not fall within our remit. Therefore we focused our submission on our particular concerns.

3862. The first issue to come up was clause 11. Unless the Department has had a Damascene conversion and is about to take salaries out of the local management of schools (LMS) formula, my understanding is that the entire clause is to be reworked. It was interesting to read, however.

3863. I want to discuss our role as gatekeeper, because, in some senses, we are also the Committee’s servants in a tangible way. Part of our responsibility is to ensure that you have some reassurance about the competence, conduct and commitment of teachers as professionals. Therefore, we also consider ourselves to be your servants. The Committee represents the democratic voice.

3864. We believe that teachers are happy to embrace that professionalism and for us to manage it. Our concern is that whatever emerges from clause 13, which deals with the provision of training, will not reflect the reality of what is required to ensure that the profession can rise to the challenges and changes that will come along.

3865. A significant body of research shows that schools begin to improve where they have communities of practice, shared values and understanding, and a shared commitment to a common goal. That cannot be imposed from without; it must grow organically from within. It can be brought about by offering schools the resources that are necessary to undertake such development themselves. In other words, there should not be a Curriculum Advisory and Support Service (CASS) mark II, which is the top-down approach that exists at present.

3866. A mixed-economy approach, which has worked particularly well in Wales, is needed. In Wales, significant sums of money — sometimes, as much as £5 million — are available for which schools and individuals can bid. That is operated by the General Teaching Council for Wales. We do not suggest for a moment that we would necessarily want to take on such a role, although my mother always used to say, “Never turn down work."

3867. A different approach is necessary. We do not expect clause 13 to address that; however, a mixed-economy approach should be taken in its outworkings. Interestingly, we conducted a survey of teachers — the only one of its kind to be conducted in the past 20 years — which found that more than 65% of them approve of the notion of individual bursaries and a mixed-economy approach. Every year, we run a system whereby we offer £40,000. It is fascinating to see the number of people who are prepared to spend their own money on top of those bursaries.

3868. As clause 13 comes into effect, we should consider an outworking along the lines of a mixed-economy approach.

3869. We are concerned about clause 26, which relates to the ESA’s responsibilities on issues such as the curriculum. Although notions of industry, commerce, the professions and inspection are all interesting, there has been a major gap in the publications that have emerged in Northern Ireland over the past couple of years. One gap is the absence of an overarching understanding of what the nature and purpose of education should be. The irony is that every political party, Church and trades union signed up to the GTC’s charter for education; all parties in the room signed up to the principles in that document.

3870. We need to examine the broader purposes in which education should engage, including utilitarian and economic considerations, which are vital; furthermore, we must consider issues of socialisation, building society and the development of social capital. For example, it is important to consider deprived areas in Northern Ireland, the sense of despair that often exists in them, and the work that must be done to repair people’s self-image and self-concept. Some people may consider that fanciful philosophical froth, but one must remember that education does not merely serve society; it helps to create it. We must be mindful of that important point.

3871. As far back as 2001, Alain Michel, the inspector general of education in France, speculated on the destructive impact of globalisation, and we are beginning to see similar effects here. It is vital that this body reflect on such issues. Civil servants will continue to manage the system, but it is important that such a group take on board where it is going. I will ask Mr Ball to discuss clause 29, which is in his bailiwick.

3872. Mr Barnaby Ball (General Teaching Council for Northern Ireland): As the registrar said, I will briefly discuss the provisions in clause 29. The council welcomes the inclusion of clause 29 and schedule 6. Members are aware that the Bill will amend the 1998 Order, which contained deficiencies that prevented effective regulation. The Bill will address those issues and will allow the council to assume its regulatory responsibilities and, importantly, allow us to deliver our functions without the danger of acting ultra vires. It is important that we act within our powers.

3873. We welcome the fact that our code of values and professional practice, which has been well received by the profession, is now placed on a statutory basis. That is important, because we can refer to the code for use with our regulatory and disciplinary processes, and the commitments and values that are espoused in the code can influence decisions. As members are aware, the code outlines the underpinning values of teachers’ practice and their commitments to learners, colleagues, and the profession itself.

3874. Schedule 6 outlines the jurisdictions and scope of our regulatory function. As members are aware, our function relates to registered teachers. We receive and consider allegations against registered teachers who may be guilty of unacceptable professional conduct, serious professional incompetence or who have been convicted of a relevant offence.

3875. That will be in keeping with other regulators in the rest of the UK and Ireland, and will take us into line with what they have. We will be able to receive allegations from employers, so an important interface will have to be established with the ESA. Those referrals will be for issues of competence or conduct where an employer would have dismissed a teacher. We will also be able to receive allegations from the general public about teacher conduct. The Bill sets out our powers in that matter, which is very welcome.

3876. It also outlines how we will investigate allegations in a two-stage process in which we set up an investigating committee to establish whether there is a case to answer. If there is a case to answer, we will establish a hearing committee, which will be a public hearing at which the teacher will appear to answer the charge brought by the council. That clarifies our powers on the matter.

3877. Once the Bill has been passed, there will be a need to make regulations. The council will eagerly await the making of regulations, because that will give effect to the provisions in the Bill. We are keen — as I am sure you are — that the Bill be made in a timely fashion. We hope that we will be able to regulate from 1 January 2010.

3878. The Deputy Chairperson: You said that you wished to raise issues pertaining to the making of associated regulations and the processes of referral. Can you clarify what those issues are, and are you suggesting that an amendment is needed to clause 29?

3879. Mr Ball: We mentioned it because it is my understanding that the deficiencies in the 1998 Order came to light when regulations came to be made. On further advice taken by the Department, it was discovered that it did not have the power to make meaningful regulations, so no powers were in place for us to hold proper tribunals, and a range of disciplinary orders was not available to the council.

3880. We have scrutinised schedule 6, and over the past few months we raised issues with the Department about possible omissions; however, those have all been resolved. Therefore, we are confident that all the required powers are available and that they can be reflected in regulations.

3881. I want the Committee to note that it is essential for us that the regulations are not only made to be effective but that they are made in a timely way. I understand that there is some uncertainty about when the Bill will be passed. There will be a short period after the Bill has been passed before the regulations can be made, but I am seeking reassurance the Committee that those draft regulations are ready to go as soon as the Bill becomes law so that we can regulate from 1 January 2010. Bearing in mind that it was a considerable disappointment to the council that we were not able to regulate before now, we are keen for that to happen as soon as possible.

3882. Mr McArdle: When we raised the issue, we were awaiting clarification from the Department’s solicitors. We have received that, and are now content in a way that we were not previously. We wish to use this forum to signal that.

3883. The Deputy Chairperson: You suggest the inclusion of a reference in clause 13(2) that the ESA should seek advice from the GTC. That suggestion has been considered by the Department, which said that that merely duplicates an existing provision and is not necessary. What are your views on the Department’s response?

3884. Mr McArdle: It is not for us to second-guess the legislation. The main issue is the extent to which consultation is sought and is meaningful. We were seeking to ensure that, as the independent voice for the profession, GTCNI has a responsibility in that area and that that responsibility is understood. If the Department assures us that that is the case, that is fine. Like most people in Northern Ireland, we will wait to see what the ESA does before we make a final judgement on whether consultation has been meaningful. I know that there can be consultation followed by inaction, but we hope that that will not be the case.

3885. We are simply making the point that there is a statutory responsibility on an organisation to offer advice to the ESA; that is what we are seeking to do. I welcome the response; perhaps that is the best way of putting it.

3886. The Deputy Chairperson: In their submissions on the Education Bill, some of the education and library boards referred to the need for clear guidance on how GTC disciplinary powers are to be co-ordinated with those of the ESA and individual boards of governors. Has that been drawn to your attention? What are its implications?

3887. Mr Ball: You are right. There will be an important relationship to be built between ourselves and the ESA and with boards of governors. In discussions with boards and the Council for Catholic Maintained Schools (CCMS) we stressed the importance of being aware that the role of a professional body is not to replace or supplement employer processes with regard to conduct and competence; those are matters of contract between teachers and their employers.

3888. A professional body would operate in that sphere by providing a wider scrutiny of professional activity by the profession itself; that is the heart of self-regulation. Determinations would be made by employers, because that would be directly relevant, and we would look at the implication of the conduct or the incompetence on the wider profession and the professional issues that may arise. Our processes will sit above and outside employer processes, but employer processes are important sources of evidence for the GTC in making determinations. We make determinations in cases of unacceptable professional conduct or serious professional incompetence. The benchmark or hurdle that we envisage in the regulation is that we would consider only those matters regarding the dismissal of a teacher by an employer for one of those reasons.

3889. Mr McArdle: We have opened discussions with Gavin Boyd, and we will follow that issue up. We will be issuing guidance to governors and, more importantly, to the profession, because it needs to understand the processes — as do the public — if we are to have a transparent independent process. A plethora of materials will be issued. There needs to be reference to the regulations, as without them we have been unable to issue guidance. However, now that things are moving on apace, we will be able to issue appropriate guidance, and we will do so. That is vital.

3890. Mr Poots: Where does the GTC come in the discipline process? I assume that, initially, disciplinary cases will be heard by a board of governors and that that will remain the case. Are you saying that the GTC gets involved only when a teacher is dismissed?

3891. Mr Ball: Yes; that is how the profession relates to those employer processes.

3892. Mr Poots: Will the GTC get involved in an advisory capacity or in a decision-making capacity?

3893. Mr Ball: All registered teachers are governed by the codes that we have produced, which feed into practice and are available to employers.

3894. Interplay is equally important because, as a professional body, we cannot seek to replace the employers’ processes. Contractually, they are the arbiters of what constitutes acceptable conduct and acceptable levels of competence.

3895. However, members will recognise that there is a further professional consideration of whether such conduct or competence reflects on the reputation of the profession, and that must be a matter for the council. However, we would not seek to review or appeal an employer process, but to build on it and consider its wider professional implications.

3896. Mr McArdle: The two elements involved are the set of competences and the code, which will set out for governors what can legitimately be expected of a teacher. If a teacher falls short of what is set out in the code, a board of governors has a legitimate reason to take that into account. However, the council cannot become involved at that stage. If the employer had initiated the issue, our involvement would compromise the integrity of the first stage. When that stage is complete and if an employer has, or would have, disciplined a teacher — unless that teacher has resigned — that is reported directly to us and becomes a case for us to consider. We would then measure the board’s processes against ours, which are independent of, but informed by, the evidence, and we may call on staff from the school concerned to give evidence.

3897. Mr Poots: Who makes the final decision?

3898. Mr McArdle: The final decision on an individual’s employment at a school is taken by the board of governors. As the independent regulator, we take the final decision on whether that teacher can remain registered.

3899. Mr B McCrea: I am interested in the council as the independent voice of the profession. Have you sought teachers’ views on whether they approve of the ESA, given its potential effect on their contracts of employment?

3900. Mr McArdle: No; other than being the source of the employing contract, there will be no change to the broad terms and conditions of teachers. That is an issue for the trades unions. As a regulatory body, we must make it clear that we do not duplicate the work of our colleagues in the trades unions, which is exactly the appropriate line that we have taken.

3901. Mr B McCrea: I am not sure whether to resile from that. The thoughts of an independent professional body are of interest to the Committee. Although trades unions play a valuable role, the profession also has a role. Perhaps your approach is somewhat narrow. It is not for me to tell you what you should be doing. Barney is nodding slightly, so perhaps there is some difference in views. It would be useful to hear from you what people in the profession are thinking.

3902. Mrs McKee: The difference between us and the unions is that a union exists to serve its members, whereas we exist to serve all the interests of the profession. Our council includes 19 teachers, 14 of whom are elected by their colleagues, and representatives from all other education bodies, such as the boards, the Irish-medium sector, the CCMS, the integrated sector, and four individuals nominated by the Department. Ours is a broad church of opinion.

3903. The council must ensure that it represents not only the teacher in the classroom but the wider education body in Northern Ireland. For that reason, we cannot become involved in the political aspects of education. We determine what is fit for purpose in maintaining and enhancing standards in schools.

3904. Mr B McCrea: I am told by officials that the ESA Bill is the most fundamental review of education, and the most fundamental legislation, that the Assembly will ever bring forward. I would have thought that issues for the profession would have included the change in the employment contract and establishing who the employer is, and so on, because those issues have certainly concerned other bodies. I would have thought that those issues would have been worthy of some discussion.

3905. Mr McArdle: Interestingly, they have never surfaced in the discussions or deliberations of the council’s 33 members. I think that there is a broad commitment to the notion that there needs to be some sort of rationalisation and reduction in numbers because we are over-administered. That consensus has emerged, but the specificity that the member mentions has not featured.

3906. The Deputy Chairperson: Surely it should have featured, because the Department is now telling us that one of the major aims of the ESA is to raise standards, and one of your major aims is to raise and maintain standards. Thus, there is a very important interaction.

3907. Mr McArdle: Very much so, but the issues that are likely to lead to that are those to which we have already alluded: the sense of purpose about what education is about and the fact that there is no real measure of that; and how we will train, develop and re-professionalise or re-intellectualise the profession. Therefore, we have looked at the specific issues that we thought particularly related to how we, as a profession, would contribute to the raising of standards.

3908. I do not think that where one’s employment contract lies makes that much difference to how a teacher will perform in school, or how children will benefit from the pedagogy that they experience or the curriculum that they are taught. I do not think that that matters in one sense or the other. Around 1974, my contract of employment moved from one body to another, but that did not alter how I perceived my role or how I undertook my responsibilities.

3909. That is the essence of where we are coming from. The issues that we think are important are: the extent to which the autonomy of the profession is recognised in the classroom; the extent to which the curriculum is relevant and pertinent; the extent to which the curriculum is not utilitarian but will, in fact, allow people to grow and develop in their commitment to it; and the extent to which we empower teachers. Those are the issues to which we tend to commit ourselves, but I understand the perspective that is being brought to us.

3910. The Deputy Chairperson: The ESA will also have responsibility for the curriculum.

3911. Mrs McKee: Of course, we are all — the ESA, ourselves and all education bodies — concerned with maintaining and raising standards. The ESA — and all research — has accepted that standards can be maintained and raised only by the recognising the professionalism of teachers. As Eddie said, we hope that a mixed-economy approach will emerge from the new ESA professional-development issues. Such an approach would give teachers an opportunity not only to develop their school-development plan and curriculum initiatives, and so on, but to develop their personal interests, such as special needs education or an innovative way of teaching science. They would have a resourced opportunity to pursue their own professional development.

3912. We will be calling for a mixed-economy approach that would offer flexibility in resourcing and would allow teachers to have some responsibility for their own development. For too long, teachers have felt that a lot of what is happening in the schools has been done to them, as it were, and that they have not had the opportunity to take ownership of initiatives. As I said, it is only by recognising the professionalism of teachers, and by allowing them to develop continually that professionalism, that standards can be maintained and developed. That is what we mean when we talk about maintaining and raising standards.

3913. Mr McArdle: We have not been silent on the issue of the curriculum. We have raised our concerns about clause 26, we have made reference to other issues, and we have drawn up a charter for education, which we have made available to the Committee. You are right: we are conscious of the issues involved. We have raised them with the Department, and will continue to do so. Therefore, we have not been silent on the issue.

3914. The Deputy Chairperson: The ESA told us that its main mechanism for raising standards will be the Department’s Every School a Good School policy. One of the main criticisms of that policy is that it does not respect sufficiently the professionalism of teachers. Therefore, I would have thought that you would have wanted to get involved in that area to ensure that the professionalism of teachers is respected.

3915. Mr McArdle: We made a very robust response to the initial document. You are right. We have been privy to some subsequent consultations and are quite clear that the Department has moved quite considerably in that regard.

3916. We also had a robust discussion with the then civil servants who were responsible for drawing up the document. It was a difficult meeting, because we thought that there had been some dismissiveness. We made that case, and we think that it has been heard. We made the point that it is a nonsense to mention the Every School a Good School policy without recognising the fact that there is a now an agreed set of competences.

3917. The bottom line is that, for the first time, everyone in this room now has a clear understanding of what the profession is expected to produce as regards competence, commitment and conduct. We had a robust exchange with the Department. I am pleased to say that, as far as I am concerned, it responded positively. However, we will have to wait until the final document emerges before we can be completely sure of that. I can assure you that if it does not take our points on board, we will raise our voices again, and appropriately so.

3918. The Deputy Chairperson: Thank you for that. You confirmed the point that I made earlier about the need for the General Teaching Council for Northern Ireland to engage with the ESA on the issue of raising standards, particularly when that impacts on the respect for the professionalism of teachers. I am glad that you have had that engagement, and I am sure that it will enhance the policy.

3919. Mr B McCrea: I hesitate to criticise such an august body —

3920. Mr McArdle: But you are going to anyway.

3921. Mr B McCrea: I am. I think that you might do more. It is a mistake to lie back and wait and see what they do to you. Sally made the point that, for quite some time, teachers have been concerned about what others will do to them, rather than feeling that their professionalism has been recognised. That concern should be brought to the fore.

3922. I am interested in the profession’s view on what is the most fundamental change in education. For example, some people say that our school system is failing. Some people in this room will argue that we have a world-class education system, while other people will argue that we do not. Some people say that our teachers are great, and others say that if there is a failing, it must be the teachers. You are in a unique position because you are able to inform the debate. I am disappointed that you are not able to help us more.

3923. Mr McArdle: I am sorry to disappoint you.

3924. Mr B McCrea: I am frequently disappointed, Eddie, so do not worry about that. I do not mean that badly. I am just trying to encourage you.

3925. Mr McArdle: It is an experience that we share.

3926. We have effectively established the professional competences for teachers, which now inform initial teacher education. We have had initial discussions with Curriculum Advisory Support Services (CASS), and we will continue to make the point that the competences must underpin performance review and staff development (PRSD). They will also underpin elements of the support service.

3927. In many senses, the profession is making inroads and is making its voice heard clearly, and when we become a regulatory body, our voice will be even further amplified. The GTCNI also approves the qualifications to teach in Northern Ireland, so people cannot teach in Northern Ireland without passing through the portal of GTCNI. The body accredits courses. All of those duties are our responsibility.

3928. Mr B McCrea: Where is the education system in Northern Ireland failing, and what would you like to see done to fix it?

3929. Mr McArdle: The education system in Northern Ireland is not so much failing in the traditional sense that it is a failed entity; however, significant changes need to be made in respect of how we operate selection, which is an issue, and how we deal with the tail of underachievement. There needs to be an understanding that the entire education system does not operate as a system. That is an unfortunate by-product of the situation that we are in at the moment.

3930. Therefore, there must be a clear focus on whether the system post-11-plus is fit for purpose in relation to vocational education and children who have experienced social disadvantage, social capital disadvantage or emotional difficulties. Is it fit for purpose for our brightest children, because we are increasingly preparing people for professions for which there will be no employment?

3931. A whole series of issues has not been addressed but must be addressed if we are to establish what the education sector needs to do. Once we decide what it needs to do in relation to the knowledge economy, etc, it becomes a matter of structure following function. A range of issues is involved. In some senses, we are failing both the economy and society as a whole.

3932. Mr B McCrea: I will conclude by saying that you have set yourself a task of work, and it has all been recorded by Hansard. I would welcome a submission or a paper from GTCNI on those very issues. You should lead on the debate, and I would like to hear from you on those issues and others.

3933. The Deputy Chairperson: John, have you a question?

3934. Mr O’Dowd: My point has been adequately covered.

3935. The Deputy Chairperson: Thank you very much for attending today, for making your submission and for taking questions. We will expect that paper from you in due course.

3936. Mr McArdle: We are always happy to do our homework.

3937. Mrs McKee: We welcome the opportunity to come before the Committee. When the Bill comes into effect, we would like to come back and discuss the specifics of the regulations so that we all have an understanding of where we are going.

3938. The Deputy Chairperson: Officials will be responding to some of the points raised during the session, so you are welcome to stay.

3939. Mr McArdle: We have brought you some homework, which you will find intriguing. It is a charter for education, and it would be wonderful if all parties signed up to it and there was a document in this room on which you all agree.

3940. The Deputy Chairperson: The next item on the agenda is an evidence session with representatives from the Northern Ireland Public Service Alliance (NIPSA): Alison Millar, who is the assistant secretary; Heather McKinstry, who is the chairperson of NIPSA’s education panel, and Helena McSherry, who is the vice-chairperson of the education panel. You are all welcome. I invite you make your presentation.

3941. Ms Alison Millar (NIPSA): Thank you for seeking to take evidence from NIPSA on the Education Bill. You will appreciate that there are many challenges facing education today, but it would be remiss of me not to point out the very low morale among staff in the education sector, particularly in the area of administration, because of the many factors that have impacted on staff over the years.

3942. It is important that the Committee and the Assembly recognise and appreciate the dedication of the staff who work in the sector. Contrary to their portrayal in the media, which has been blatantly untrue, the staff are hard-working and do not waste resources. Over the past few years, they have worked against a backdrop of ever-increasing pressure and with much reduced resources, and the squeezing of those resources must stop.

3943. NIPSA is in a unique position to give its view on the Education Bill, as it is the only teaching union that represents staff from across the entire education sector. We represent all organisations affected by the review of public administration (RPA): the boards, the Youth Council, small and large bodies, the Council for Catholic Maintained Schools (CCMS), the Civil Service, and so forth. The views contained in our submission are, therefore, representative of members from all those areas.

3944. NIPSA is deeply concerned that the establishment of the ESA is being regarded purely as a cost-saving exercise. Given some of the developments, to which I will refer later, it is clear that the RPA is not aimed at improving the education service, diverting sources to the front line or ensuring that children receive the best education, which they deserve. According to the facts that we have, resources are being, and have been, cut. As members said earlier, special education and children’s services are also being reduced, and jobs are being cut. NIPSA is extremely concerned about the projected loss of 463 jobs, particularly against the backdrop of the failure of the Department of Education and the Minister to commit to no compulsory redundancies as part of the implementation of the RPA.

3945. However, when the job cuts were announced to the Assembly, there was not as much as a blink. Why was that announcement simply accepted? Over the past few months, every political party has sought to support teachers and criticised the private sector for cutting jobs during the current economic crisis, yet they tacitly accepted the announcement of the loss of 463 jobs in education. I ask the Committee and parties to reflect on that.

3946. NIPSA is opposed to the division of the legislation into two Bills. Given the extension to the timeline for the establishment of the ESA, there is no justification for such a division, and NIPSA is deeply suspicious of it. Is it because of the voluntary grammar sector? Will it be included? Will the integrated and maintained sectors be included? We have heard various representations to the Committee on the subject. Although we welcome detailed discussion of the issues, the longer the debate goes on, the more likely it is that the outcome could be simply a merger of the existing education and library boards with a few add-ons, and that would be unacceptable.

3947. One of NIPSA’s major concerns relates to employment schemes. We are extremely concerned about the provision of employment schemes in clauses 4, 5, 6 and 7. If it is deemed that an employment scheme is required, that need should be addressed through the collective negotiating machinery and subsequently disseminated to schools as a model scheme. At best, the legislation, as currently drafted, puts the cart before the horse. If a board of governors wants to deviate from the model scheme, it should have to agree any amendments, but with the ESA and through the collective negotiating machinery. That would ensure equality and commonality across and between schools, and it would guarantee the fair and equal treatment of all staff in relation to pay and terms and conditions of employment, which is not the case across all schools and employers at present. We would welcome the same issues being addressed in all schools.

3948. In clause 9, NIPSA fully endorses the transfer of staff employed by boards of governors from the voluntary grammar and grant-maintained integrated sectors to a single employing authority. However, we suggest that clause 11 be removed in its entirety, as we see no reason for individual schools to continue to pay salaries. If the ESA is intended purely to streamline services, surely no reasoned argument exists for the retention of clause 11, other than to satisfy a particular lobby group or sector. The Committee should reject and remove clause 11, solely because it creates unnecessary bureaucracy. Its removal would streamline the payment of salaries.

3949. NIPSA is concerned about how the school library service, which is a very small service with approximately 50 staff, will be able to develop the necessary skills to improve and provide a first-class service. Historically, there has been movement of staff between the school library service and the public library service under one employer. However, under the education and skills authority, there will be only about 50 staff. Will those staff have the right skills and competencies at all the appropriate levels required for that service?

3950. NIPSA believes that the appropriate level of service can be achieved, and successfully maintained, only through formal links and the sharing of expertise with the public library service through the Northern Ireland Library Authority. The matter should be legislated for, not left to happen by chance through some service-level agreement or other similar arrangement. We have had tentative discussions with the ESA on that issue, but we believe that it needs to be provided for in legislation, otherwise the service may, given the totality of the exercise, be left to wither on the vine. That service is very important.

3951. Some clauses refer to public-private partnerships (PPP) and private finance initiatives (PFI); it will come as no surprise to the Committee to hear that NIPSA is totally opposed to the building of schools and the education estate through PPPs. All the evidence that we have shows that that route does not deliver, in a timely fashion, the rebuilding of schools and the youth estate. I will not go through the litany of failed schools, but there have been situations in which children have left primary school thinking that a new secondary school was to be built in their area. Contracts that last 20 to 25 years tie the Department, the public purse and the ESA into paying for something over the long term. NIPSA urges the Committee to ensure that PPPs and PFIs are eliminated as a methodology for delivering and maintaining the schools estate. The traditional design-and-build model has proved to be much more cost-effective and responsive to need. We need new schools to be ready for children within a very short timescale, not in the five, 10 or 15 years that it has taken under a number of PFI contracts — indeed, sometimes contracts are not even carried forward.

3952. Another issue that we raised in our submission concerns the size of the ESA board. We believe that a board with seven to 11 members would be totally inadequate, particularly given the number of functions that the board would have to fulfil: audit, education, finance, etc.

3953. NIPSA is concerned about representation on the board, as well as about its size. The ESA will be an employer of 60,000 staff. We believe that the appropriate way to reflect that on the board, whatever its final size — although it needs to be larger than currently suggested — is for one third of the board to be made up of elected representatives; one third to be made up of community representatives and one third to be made up of employee representatives. On the board of the Labour Relations Agency, the trade unions and employee representatives have an automatic right to seats, which are appointed through the public-appointments process. I ask the Committee to reflect on that

3954. NIPSA seeks absolute assurance that the Transfer of Undertakings (Protection of Employment) Regulations, and all its vagaries, will apply to the transfer of staff to the new organisation, and that staff will be fully protected.

3955. Those are our main issues as regards the Bill. However, there are two other imminent staffing issues concerning the ESA that we want to flag up to the Committee, and they are included in the briefing. With the Committee’s indulgence, I will mention them now.

3956. The first relates to the methodology for the filling of director posts. NIPSA has grave concerns about the process by which staff have been identified throughout the small and larger employers, and about who is eligible to apply for what director post and what grade staff have to be at to apply, and so on. We submitted detailed comments on the recruitment, redeployment and voluntary severance (RRVS) strategy to the consultation, which closes next week. NIPSA, along with the other non-teaching unions, wants to ensure that there is a serious and meaningful engagement on that issue and that the public service guidelines, etc, are fully adhered to.

3957. The second issue relates to the vacancy control policy, which was introduced in October 2006, at a time when it was expected that there would be a short timeline for the establishment of the ESA. It was put in place purely to try to realise the expectation that the unions had about no compulsory redundancies. However, the deferment, on at least two occasions, of the establishment of the ESA has led to large numbers of staff acting up one, two or three grades, and staff who had been brought in on temporary contracts that were supposed to last for six to eight months being in post for over four years.

3958. We received some figures about three weeks ago and are seeking further detailed data from all the employers. However, the Committee should be aware that, in one education and library board, more than 70% of the staff are not in what some would determine to be their substantive posts. Unions can no longer sign up to that arrangement; we have formally withdrawn from it and will be pressing for posts to be advertised on a permanent basis because of the staff detriment involved in transferring to the new organisation. That issue has been raised directly with the Department, and I was extremely disappointed by the Department’s reaction, which was to say that people will have benefited from additional money for a few years and give a shrug of the shoulders. That response will not be accepted, and we will take all necessary action. We hope that we will have the Committee’s support for our efforts to ensure that staff are treated properly in the transfer to the new organisation.

3959. The Deputy Chairperson: Thank you very much. You said that it is not clear whether the savings that will accrue from the establishment of ESA will be directed to front line services. Have you any evidence to back up that claim?

3960. Ms Millar: We have looked at the comprehensive spending review figures for the three-year period, including staff costs, maintenance costs and all of the additional costs in the Budget. It is our view that the 3·3%, 5·9% and 4·4% increases will be gobbled up in a standstill process, rather than be diverted to the front line. The mantra is that the money will go from administration into schools. However, if we look at the situation with health, we see that there is no evidence that the savings have been diverted to hospitals and front line services.

3961. The Deputy Chairperson: You said that you have an issue with the methodology involved in filling director posts. Will you elaborate on that?

3962. Ms Millar: NIPSA has had discussion with the ESA implementation team about how the posts at director level should be filled, taking on board the Public Service Commission’s view about the need to protect staff. An issue arose because there was an identification of staff down to what would be third-tier equivalents across all the organisations. We believe that the outworkings of that, and how posts have been defined, will exclude some people from applying for posts that we believe would be at least equivalent to their posts, if not at a higher level. For example, some people in human resources posts in the smaller organisations would be eligible to apply for a director post. However, a human resources manager in an education and library board would be excluded from applying for a post at that level.

3963. We have been in discussion since Christmas with the ESA implementation team. We are disappointed that the views that we expressed were not taken on board before the public consultation was launched and have reiterated that in the public-consultation process.

3964. The Deputy Chairperson: You mentioned the procurement of new buildings through public-private partnerships (PPPs) and private finance initiatives (PFIs). I do not believe that the Bill specifies the use of those methodologies; has that been added?

3965. Ms Millar: The Northern Ireland Public Service Alliance (NIPSA) understands that the Bill allows for the use of PPPs. That is not specified; however, there is a reference to the fact that different procurement methods can be used for the schools estate, which does not exclude PPPs.

3966. The Deputy Chairperson: Recent events mean that the Department has had to return to direct contract procurement.

3967. Ms Millar: Yes, but the economic system will rise and flow and the private sector will again become interested in the public sector.

3968. Mr Poots: The Deputy Chairperson posed a question about the first paragraph of the submission to which the answer was that rises above inflation for each of the comprehensive spending review (CSR) years amounted to cuts.

3969. That is not the case. Particularly in light of the existing retail price index, the rises happening in each of the CSR years are significant. Efficiency savings that should be achieved as a result of the review of public administration will be redistributed in the Northern Ireland block grant, which is for the public sector.

3970. If the unions are against efficiency savings, they are against providing front-line services, because we are seeking to remove unnecessary administration and move the resources that are saved to front-line services. We want professionals who can assess children with special needs, and we want sufficient teacher-pupil ratios and more classroom assistants. Will the trades unions block that by adopting the attitude that they have demonstrated today?

3971. The Deputy Chairperson: That probably falls outside the remit of the Bill.

3972. Mr Poots: Paragraph 2 of NIPSA’s briefing paper specifically refers to jobs that may no longer be required and the consequences of their loss.

3973. The Deputy Chairperson: Alison, do you want to respond?

3974. Ms Millar: In relation to my response about the three CSR periods, it is not just about the retail price index.

3975. Employers’ pension scheme costs are due to rise by another 2% this year. The cost of maintenance in schools has fallen over the years as education and library boards have had to cut back drastically, leaving the schools estate in a pretty dire state. If the schools estate is to be dragged back up to where it should be, money must be spent in those areas.

3976. The provision of special education in schools was referred to earlier. It is clear to NIPSA that it is an indictment of our society and the current employers for people to wait three, four, five or eight years, as we heard on the radio this morning, to have a child statemented. It is a question of resources.

3977. I do not believe that any education and library board is saying that it will deliberately not statement children for that period — it is purely down to a lack of staff. Additional staff must be allocated to some areas to allow employers to deliver that service. The ESA will realise that once it has all those staff under its remit.

3978. Mr Poots: It is not exclusively a matter of resources; it is as much a question of the management of resources as resources per se.

3979. If Departments have a multiplicity of silos with middle managers and a tier of staff below them, competing with one another and giving one another unnecessary work, resources are not being properly managed. Consequently, front-line services are starved of resources that they need.

3980. I want to know whether the trades union is prepared to co-operate with others in ensuring that resources are best placed in front-line services.

3981. Ms Millar: I can speak only for NIPSA, not for other unions. We believe that the 463 jobs that were mentioned in the outline business case have been more than saved. The data that we received from most employers is that less staff now work in the sector than are required to be saved under the outline business case. During the period of vacancy control, a black hole emerged into which 500 or 600 jobs have disappeared.

3982. The Deputy Chairperson: Departmental officials told us that the savings from the establishment of the ESA will not necessarily go into front-line services. They said that such savings may help to protect front-line services but, because of deficiencies in budgets in the present economic climate, funding for additional front-line services would not be available, as had been originally intended.

3983. Mr Poots: Northern Ireland receives a block budget; it does not receive any more than that. Therefore, if additional resources are not made available, there is no point in harping on about the requirement for more resources. If more resources are made available for education, it will mean that fewer resources are available for health; more resources for health will mean fewer resources for another area. There is a budget to work to, and we must decide how to make that work in the interests of everyone, not only those who work in the public service.

3984. The Deputy Chairperson: That is true. However, my point is that the original predictions will not be fulfilled.

3985. Mr Lunn: How are the 463 job losses represented as a proportion of the existing jobs?

3986. Ms Millar: As you heard, there are about 60,000 staff, and, according to the Department’s outline business case, some 4,180 are at risk of redundancy. Four hundred and sixty-three is about 15% or 16%.

3987. Mr Lunn: I may disagree with the figure of 15%; it is about 12%. You said that many of those jobs have already been lost. Have they been lost through natural wastage or because education and library boards have been actively seeking to reduce the number of jobs?

3988. Ms Millar: We are seeking data on that from all the employers. It is only when we got the figures from four of the five education and library boards that we found that they did not tally. We are gathering that data, and when we have them I will forward them to the Committee.

3989. Mr Lunn: Your main reason for existence is to benefit your members. The process will merge five boards into one, and one of the main reasons for doing that is to achieve economy of scale. Is a reduction in jobs of 12% through natural wastage and voluntary redundancy achievable?

3990. Ms Millar: As we have always said, our bottom line is to get a commitment to no compulsory redundancies. That would give a great deal of comfort to those staff who are feeling vulnerable and who are not sure whether they will have a job and where their job will be when the ESA is established and rolled out. You said that our role is to benefit our members, but our main role is to protect the existing terms and conditions of the staff who will transfer to the new organisations.

3991. Mr Lunn: Have any of the 500 jobs that have gone been through compulsory redundancy?

3992. Ms Millar: No.

3993. Mr Lunn: Therefore jobs have already been lost without any pain.

3994. Ms Millar: I am not sure that you would say that if you worked in the education sector. There has been significant pain. As political representatives, you will criticise the education employers on many occasions and seek information from them about why certain things have not happened. That is primarily because of diminishing resources and the loss of expertise.

3995. Mr Lunn: However, so far, no employee has been forced to go.

3996. Ms Millar: No.

3997. Mr Lunn: Your submission proposes yet another calculation for the membership of the ESA: one third elected representatives, one third community representatives and one third employee representatives. How do you respond to the Minister’s view that to reserve a place for a trades union representative might give rise to a conflict of interest when union or management matters arise?

3998. Ms Millar: Our statement refers to the board of the Labour Relations Agency, which includes employee representatives. By and large, boards do not deal with staffing matters. An employee representative would not normally be involved in, for example, a disciplinary matter or any other staffing-related issue. They generally do not sit on staffing committees. There are many other ESA board matters to deal with apart from purely staffing issues. I do not believe that there would be conflicts of interest.

3999. Mr Lunn: I did not ask that question because I disagree with you. The Minister seems adamant that of the 12 places on the ESA, seven will be local councillors and a chairperson, which leaves room for four other representatives.

4000. Ms Millar: Having followed the Bill through this, its Committee Stage, I do not believe that the Minister has any support for that position. Most of the groups that have given evidence to the Committee have argued that the ESA should be much bigger. People would have to be employed on a full-time basis to service audit, staffing and other committees; I do not know how a board of seven or eight people could manage that.

4001. Mr Lunn: What do you mean by “community representatives"?

4002. Ms Millar: I mean representatives from business and the community sector. Apart from employee representatives, there would be elected members and business and community representatives.

4003. Mr O’Dowd: Thank you for your presentation. I want to question you in more detail about staff members “acting up". It was originally hoped that the ESA would have been in place this year, but its establishment has been put back until 2010; indeed, some people want it put back further. How is morale among staff? Your submission says that NIPSA has withdrawn from the vacancy control process; could you expand on that?

4004. Ms Millar: The ESA was originally due to begin in April 2008; that is when vacancy control was first introduced. The unions agreed to that process and were engaged in it. From where we sat, the aim of that process was to avoid compulsory redundancies so that people could act up — be temporarily promoted — for short periods. However, because of the financial constraints that were placed on the education and library boards over the two to four years before vacancy control, there are staff members who have been acting up — in other words, not in their permanent post — for up to eight years. That is unfair and unsustainable. Those people are in that position because of decisions to defer the establishment of the ESA and decisions by previous education and library boards not to make permanent appointments.

4005. A line has to be drawn in the sand, because the ESA implementation team, supported by the Department, said that the arrangement would continue until 31 August 2010. Our figures are based on January 2009; by the time that the ESA is established, some employers will have no staff in a substantive post. The Department seems to be saying that those staff members have enjoyed three, four or eight years of additional money for the work that they carried out and that they can go back one, two or even three grades lower. That was never what vacancy control was intended for; it was a short-term measure, but it has been allowed to go on for so long that it has become a nightmare.

4006. Over the past couple of weeks, we discussed the matter with our members in all employment areas. People have only just started to realise that the post that they have held for the past six years is perhaps not the grade that they will be guaranteed. Rightly or wrongly, people have got mortgages on what they thought was their salary at the time. Over the past six months, we raised concerns with the Department and the ESA implementation team, but we did not get anywhere. We see this process as trying to draw a line in the sand and getting people to talk to us in a meaningful way.

4007. Mr B McCrea: There is much with which I agree. It is fundamentally unfair that people who have been acting up are not made permanent in that grade. That is on the record: it is an issue that must be sorted out. Low morale and stress are issues that responsible employers must address. We are failing people in that area.

4008. There is also an issue on which I agree with you and Edwin, which will upset him greatly. I absolutely agree that there have been real cuts. There have been inflationary rises in fuel, in legitimate job evaluations or through agreed pay negotiations — but those factors have increased more than the increase in the budget. Given that that money has to come from somewhere, budgets for maintenance were slashed to make up the difference. The cuts may be hidden, but they exist. We should not avoid them; we should acknowledge that they are being made. Cuts are being made in the least noisy places, and the more vulnerable in our society suffer as a result.

4009. That said, the block grant is unlikely to increase. There is a question about where we will find moneys, and the only way of doing that is by investment and by better co-operation with staff, employees and the unions. We have to find some way of doing that because, quite simply, there is a budget problem. I realise that that was a statement rather than a question, but is that a reasonable position or am I heading off over the hills?

4010. Ms Millar: I agree with you about the budget: It is a bit like robbing Peter to pay Paul. In our response to the Education Bill and the financial memorandum that was attached to it, we clearly said that we believed that the £20 million would be found from savings in administration and would be redeployed to the front line in education — not into the wider Northern Ireland block. That was the basis on which we made our submission.

4011. Mr B McCrea: That is a fair point.

4012. The Deputy Chairperson: I ask you to draw your remarks to a close because we have two sessions after this, and another event after that. Please finish on the point that you are making.

4013. Mr B McCrea: I will talk afterwards. I have made my points, so I am OK.

4014. The Deputy Chairperson: Thank you for your attendance today and for your valuable contribution; no doubt we will hear from you again in future.

4015. Ms Millar: Thank you, Chairperson, and thanks to the Committee.

4016. The Deputy Chairperson: We now move on to the response to the General Teaching Council and NIPSA from departmental officials. Present today are John McGrath, the deputy secretary, and Chris Stewart, the head of the review of public administration. Neither of those gentlemen requires any introduction, but I introduced them nonetheless. You are very welcome.

4017. Mr McGrath: I will respond to the evidence given in the two previous witness sessions, and Chris will deal with the detail of the Bill. We welcome the GTC’s support for the Bill and the point was made that their comments were brief because there are not many substantive issues outstanding. With respect to the last point, I hope that the launch of ‘Every School a Good School’ tomorrow will alleviate some of their concerns on that score.

4018. As to the points that NIPSA has made, it is important to reiterate some of them and react to some of the discussion. The ESA has a role in raising standards; that is clear. The main vehicle for that will be the ‘Every School a Good School’ policy and the continuing work and emphasis on standards in school improvement. It will also have a role in squeezing resources so that the maximum is invested in the front line.

4019. I wish to echo the point that Edwin made: there is a budget settlement. The education service must manage within that settlement, whether there is an Education Bill or not. The job losses that have already taken place in the service have been taken into account in the cumulative 3% cut. One cannot make significant savings in a service that is predominantly people-dominated without job losses. However, we must ensure that the job losses are not in the front line and that they are managed as sensitively as possible. By rationalising seven organisations and centralising backup functions over time, the ESA will make the education service better equipped to deal with the efficiency savings that we already have and which have become sharper as a result of the public expenditure forecasts that have been evidenced since the Budget. Therefore, in my Minister’s view and in my partners’ view, the case for the ESA has been reinforced by the increased financial stringency.

4020. I note that 463 job losses are discussed in the outline business case. It is extremely unlikely that there will be any compulsory redundancies because there are almost more vacancies than that at the moment. It is a general principle of the review of public administration that compulsory redundancies should be avoided, and my Minister is keen to ensure that there are no compulsory redundancies if possible.

4021. We have had discussions with NIPSA and other colleagues about vacancy control, which has gone on longer than was desirable, largely due to uncertainty outwith the Department about the timing of the ESA. Many staff have been acting up one, two or three grades above their substantive grades for a considerable time; that is not unknown in the public or private sectors. Nonetheless, NIPSA asked for a guarantee that the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) should apply, and the legislation says that TUPE will apply. However, TUPE applies to a person’s substantive grade.

4022. If people have been acting up for some time without the proper competition to make that a substantive post, there should be no understanding that, somehow, in the transfer to the ESA, that position will be regularised without competition. That would be entirely inappropriate and inconsistent with TUPE. We have made that point to trades union colleagues, but we are happy to continue to discuss the issue with them. However, we have reflected that where people have been acting up for a considerable time they have been paid the salary appropriate to those posts.

4023. Mr Stewart: If it meets with your approval, Chairman, I will pick up on some of the points made by GTC colleagues and then move on to those made by NIPSA.

4024. We welcome the GTC’s positive comments about the Bill; we worked and liaised closely with the council in developing the Bill and we welcome its valuable contribution.

4025. Regarding the small number of specific points relating to clause 11 and the reference to the provisions on the payment of salaries, we note the council’s comments carefully. The Committee is already aware that the Minister recognises the need to amend that clause substantively and that she intends to bring forward an amendment. The purpose of that amendment will be to ensure that all boards of governors in all grant-aided schools will have control over their schools’ budgets for salaries.

4026. On clause 13, which deals with the provision of training and advisory and support services for schools, we note the suggested amendment by the council that the ESA should be required to seek advice from the General Teaching Council. However, the council points out correctly that there already is provision in legislation that gives the council the function of providing advice to employing authorities. Therefore, it is our view that, although we support entirely the suggestion that there should be advice from the GTC to the ESA, there is no need for an additional provision; that would merely duplicate the effect of the existing law. Therefore, we are not persuaded that the suggested amendment is necessary.

4027. On the other point relating to clause 13, we are entirely in agreement with the GTC. It is the Minister’s policy that there should be a mixed economy of provision of training and advisory and support services, including the ESA and other providers, and we are confident and satisfied that the Bill allows for such an approach.

4028. In relation to clauses 25 and 26, which deal with the curriculum, examinations and assessment functions, we note the suggestion from the GTC that the clause ought to include a reference to civic and social well-being. However, although the intention behind the suggestion is laudable and we strongly support it, it is our view that it is more appropriately addressed in another part of the Bill, namely clauses 2 and 23, which have a broader focus and are focused on the general duties of the Department and the ESA, and which are the very thing that Mr McArdle referred to — the fundamental purpose of education. Those clauses already contain references along the lines suggested on the fundamental purpose of education and, therefore, we feel that the suggestion made by the council has already been accommodated in the Bill.

4029. Finally, we welcome the support of the GTC for the important provisions in clause 29 and schedule 6. The Minister fully agrees that it is essential that the GTC have the full range of interventions — every tool in the box that it requires to discharge its role as effectively as possible.

4030. I will move on to the points raised by NIPSA and begin with the membership of the ESA. The Minister and the Department note the views expressed by NIPSA and by many other stakeholders and members of the Committee about the number and composition of the membership of the ESA. The Committee is familiar with the Minister’s view, which is that a membership of up to 12, including the chairperson, is sufficient for effective leadership and governance. The Minister also feels that the proposal for the majority of members to be district councillors is important in ensuring local democratic accountability. However, we are conscious that some stakeholders and Committee members have expressed views on that aspect of the legislation. If the Committee were minded to write to the Minister, she would welcome its views and give careful consideration to anything that it may recommend.

4031. NIPSA also suggested that a proportion of the ESA membership should be reserved for trades union representatives. The Minister stresses that the appointment arrangements for ESA membership will be based primarily on the merit principle. Of course, trades unions’ representatives, like anyone else, may apply for appointment; however, all members will be appointed on their competence and experience rather than in any formal representative capacity. As was mentioned earlier, the Minister feels that formally reserving a proportion of the membership for trades unions’ representatives could give rise to significant conflict of interest issues for those members in management or trades union matters, which, of course, would be significant and frequent, given the role of the ESA as the employer of some 55,000 to 60,000 staff.

4032. Moving on to employment schemes and the role of submitting authorities, the Minister does not agree with NIPSA that the requirement for schools to produce employment schemes is a bureaucratic burden.

4033. In fact, we see the schemes as being an essential element of the employment arrangements in the Bill. They will ensure that there is clarity and certainty on the respective roles and responsibilities of the ESA and the boards of governors, and the Committee has stressed the importance of that issue on a number of occasions. We feel that that is in the best interests of staff.

4034. The 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. However, the ESA will produce model schemes and must approve all schemes prepared by schools. If a school wishes to adopt a model scheme, it is free to do so, and that will, of course, minimise the administrative burden on the school.

4035. We agree wholeheartedly with the sentiments expressed by NIPSA colleagues on the importance of having close links with, and a close working relationship between, the school library service and the public library service, which is administered by the Library Authority. However, we are not entirely clear about exactly what additional legislative provision NIPSA is looking for, and we would welcome further discussion with NIPSA on the matter. I must point out that clause 18 already contains provisions to allow the ESA to co-operate and enter into formal agreements with the Library Authority.

4036. Clause 15 focuses on educational youth services and facilities. There appears to have been a misunderstanding about the focus of the clause. It is about early years services, which we refer to as educational services, and youth services — it is not about schools. The clause refers to acting together “with any other person" to allow for co-operation and partnership between the ESA, voluntary service providers, and, perhaps, district councils. The clause is not related to the schools estate or procurement policy in any way.

4037. On the issue of potential secondments from the ESA to the Department, the Minister agrees with NIPSA’s suggestion that such an arrangement is desirable, and we want to consider the need for an amendment to the Bill to ensure that that is made explicit.

4038. Finally, turning to schedule 5, which deals with the transfer arrangements for civil servants transferring to the ESA, NIPSA has sought assurances that the legislation will safeguard the employment rights of Civil Service staff. The Department is happy to offer that assurance, because it is entirely satisfied that schedule 5 does just that, thereby providing the assurance that NIPSA colleagues are looking for.

4039. The Deputy Chairperson: Thank you very much. The Committee wrote to the Department on 19 March with some 10 pages of concerns. When might the Committee get a response?

4040. Mr Stewart: As soon as possible; and I acknowledge that there are several pieces of correspondence to which we owe the Committee replies. It has taken longer than it should have to respond. We intend to send a very substantive reply, hopefully next week, which should wrap up all the outstanding correspondence. A number of issues has been raised during meetings, and we have picked up on those issues in some of the written and oral evidence that we provided to the Committee. However, as I said, we will wrap all that up in a single reply, which we hope will be a convenient way for members to see the Department’s position on those matters.

4041. The Deputy Chairperson: John, can you give us an indication of how much of the £20 million savings will be eaten up by efficiencies?

4042. Mr McGrath: Do you mean the savings in the outline business case?

4043. The Deputy Chairperson: Yes.

4044. Mr McGrath: Some of those savings will already have been counted into the current Budget period and redirected back to front line services. As has been said, efficiency savings are required of each Department, and they generate the additional funds that the Executive have allocated for priority areas. That has already happened with a number of developments that the Minister announced last year and this year. You reiterated the point that I made earlier: ideally, people would like efficiency savings to go into front line services, but as the overall budget constraints get tighter —and Basil elaborated on some of the reasons for that, such as pay awards in excess of provision and job evaluations — so individual budgets get tighter.

4045. Our view is that we increasingly need to ensure that efficiency savings do not come out of front line services and that those services are protected as much as possible. It is not quite the same as guaranteeing that every efficiency saving will automatically go into front line services, but that is a product of the wider budgetary constraints that we face, which will get worse in the short to medium term.

4046. The Deputy Chairperson: Is it possible to say how much of the £20 million is going into front line services?

4047. Mr McGrath: I am happy to come back to you with a specific figure. I do not want to quote a figure now in case I get it wrong. If Catherine Daly was with me, we could find that out. If the figure was generated within the current three-year Budget period, it will already have been counted in and will have been part of the package of improvements that Caitríona Ruane announced for last year and at the advent of this year.

4048. The Deputy Chairperson: We look forward to getting a figure.

4049. Mr B McCrea: I want to deal with GTCNI and then with NIPSA. I may be wrong about this, but I did not take the same sense that you did from the comments made by the GTCNI representatives, which you welcomed as being very positive. I took from their comments that, although they had views on many issues, they thought that some of them were outside their competency, and so they restricted their comments to issues that they thought that they should be talking about.

4050. Mr McGrath: We are talking about a third party who is still in the room. Perhaps it would be best for us both to offers views on that.

4051. Mr B McCrea: Although I asked them for more detail, it was not forthcoming, but my view is that some concerns were raised and that it is not appropriate for us to say that they are overwhelmingly supportive of things. I put that on the record as a counter to what you said. Obviously, it is a matter for GTCNI to clarify and deal with, but I put that on the record. The representatives are still listening, so you can see what I mean.

4052. Turning to NIPSA’s concerns, I stated for the record that I think that it is fundamentally unfair to ask people to step up to the mark and act up several grades above their current grade for a prolonged period of time, and then, at a later stage, say to them, “Regrettably, you are not the best person for the job". We are in a situation whereby we really need people to stay and keep the machine together. Whatever arrangements you come up with for which people should go forward for those jobs — and I am in no way tying your hands on that — we must recognise the contribution of those people. It is about more than just being paid.

4053. Mr McGrath: On that point, I agree entirely. People have made a significant contribution and are currently going the extra mile, and many vacant posts have had to be filled. That point is well made. Equally, nobody is saying to those people that they are not the right person for the substantive post. We are saying that one cannot wave a wand and put them into the substantive post. I agree entirely: those changes need to be managed. When people move to the ESA, they will still keep their substantive grade, which is the grade that they will transfer under as part of TUPE. On day one, and for a period, they may still be acting up, but then arrangements will have to be made for the filling of those substantive posts in line with proper employment practice. None of that amounts to telling people that they are not necessarily the right person for the job.

4054. Mr B McCrea: I understand the administrative and legal points that you are making. However, we have agreed on the moral point, and we need to address it. I am not sure how we can do it, but simply asking folk to trust us because we are the Government will not work. We need to find a way of addressing that very serious issue, and, as you well know — or at least I will put it to you — the vacancies in the education and library boards and elsewhere are now causing severe problems. People are not able to get the service that they need.

4055. Mr McGrath: There is no difference between us here. The situation has to be managed. Those staff are primary assets of the new organisation, and they need to be looked after.

4056. Mr B McCrea: My position on the composition of the ESA board is known; there is no point in me regurgitating it. However, I will say that there is a fundamental flaw in what we are all trying to do. GTCNI made the point, as did NIPSA, that we need to understand what it is that we are trying to do with education and with the ESA, because, once you have decided what you are trying to do, then the form will follow function. Debate is ongoing about that.

4057. Mr McGrath: Governance is important. The ESA will employ 50,000 people, oversee a spend of £2 billion and be the custodian of a lot of public assets, so it will require proper governance. Over time, policies will change, and they will come from the Department and the Executive — and we have talked about that already. The ESA’s job will be to implement those policies. We will have to establish a model of governance that will last over time rather than one that will have to be tweaked to suit the policies of the day.

4058. Mr B McCrea: Mr McGrath, at the risk of agreeing with you again, I accept that. However, the problem is that many people think that the ESA will be a policymaking organisation.

4059. Mr McGrath: The ESA will be an operational delivery vehicle to implement the policies that are set by the Minister and Executive of the day.

4060. Mr B McCrea: Many people feel, rightly or wrongly, that they are being excluded. You can say that that is the way in which democracy works, but some people would like a forum in which their interests will be at least heard. That is why we are having this debate.

4061. Mr McGrath: That is for the political process to deal with.

4062. Mr B McCrea: I will finish soon, Deputy Chairperson. Those people’s concerns are at the centre of why we are going round in circles in some of these debates. Many stakeholders are concerned that they have a legitimate input to make but that there is no effective forum in which to do so. At the minute, everyone believes that the ESA is the place where they can air those views, and that is why they want to be part of it.

4063. The Deputy Chairperson: Eddie McArdle from the GTCNI said that education in Northern Ireland lacked an overarching vision. Do you think that the Bill fulfils that need?

4064. Mr McGrath: That is not the purpose of the Bill. The Bill is designed to reform a lot of the arrangements for the delivery and administration of education. I will not argue that there is a need for a vision.

4065. The Deputy Chairperson: Clause 2 provides a sort of vision, incomplete though it may be.

4066. Mr McGrath: There is an architecture for a vision, but a vision is part of the policy that the Minister of the day sets down for educationalists.

4067. The Deputy Chairperson: Surely the vision should determine the policy. The policy is not the vision; the policy is merely a reflection of the vision.

4068. Mr McGrath: The vision of the Department of Education is to ensure that every learner fulfils his or her full potential at each stage of his or her development.

4069. The Deputy Chairperson: That is narrow; it could be one aspect of a vision.

4070. Mr McGrath: That is the vision. I disagree with you, because I think that it is a broad vision. However, some meat has to be put on it to create a policy. We are doing that by making school improvements, enhancing provision for children with special needs and focusing on the workforce, and through the introduction of the entitlement framework and the revised curriculum. The Minister has identified five main pillars to carry forward the delivery of that vision. They relate to raising standards; closing the gap; investing in the workforce, because standards of education will not be improved if teaching standards are not improved; investing in the infrastructure in which children and youth learn; and transforming administration. The Department needs a vision, and, subsequently, a strategy is required. ESA’s role will be to deliver that.

4071. The Deputy Chairperson: Will you undertake to read Mr McArdle’s words and to determine whether they can further inform the direction of the Education Bill?

4072. Mr Stewart: Deputy Chairperson, you got the links of the chain in the right order. Vision drives policy, and, in turn, legislation is the vehicle that delivers policy. You are right that some elements of the Bill, particularly clause 2, create, as John said, the architecture or infrastructure on which the vision sits or through which it will be delivered.

4073. I spent many hours arguing and discussing with legislative counsel which words we might put into clause 2. The view of the author of all the education legislation, and much other legislation over the past 20 years, is that vision or mission statements have no place in legislation. He believes that they are very important in policy and to the work of Departments, but legislation is different. Legislation must be clear, precise and unambiguous; therefore, it is not an easy vehicle in which to place vision or mission statements. The extent to which we have included those visionary words in clause 2 is about as far as we think that we can go.

4074. The Deputy Chairperson: Time is running out, so I ask members to keep their questions as brief as possible.

4075. Mr Lunn: That comment should have been made earlier, Deputy Chairperson.

4076. The Deputy Chairperson: I did make it earlier.

4077. Mr Lunn: That always seems to happen.

4078. I have two short, succinct points to make. Concern over the projected loss of 463 jobs appears to have gone, because they were secured without the need for compulsory redundancies. Is there any reason why the Department cannot give the guarantee that is being sought by NIPSA about future redundancies?

4079. Mr McGrath: It is a general principle of the RPA, which was endorsed by the Executive after direct rule, that, ideally, there should be no compulsory redundancies as a result of the RPA. My Minister is also very keen that there should be no compulsory redundancies. The Department doubts whether there will be any, but one never knows what may happen.

4080. I do not see any evidence of the need for compulsory redundancies. There are more vacancies, and there will be funding for severance packages. It is extremely unlikely that there will be any compulsory redundancies, and Mr Lunn made the point that, to date, there have been very few compulsory redundancies ahead of the RPA changes. Therefore, that is a spectre that may not appear.

4081. Mr Lunn: Mr Stewart talked about the composition of the ESA board. Did I detect a heavy hint that the Minister may be disposed to consider seriously a consensus view from the Committee, if it could arrive at such a view?

4082. Mr McGrath: We made the point that that issue has been brought up seriatim, not least through the Committee, and, interestingly, Basil McCrea has made the point that people believe that there is no effective forum other than the ESA board; therefore, they all want to get on it. That represents a misunderstanding of the role of the board and policy formulation. Our point is that the make-up of the board is clearly an issue for people here today, and for other people who have given evidence, so the Minister would welcome getting a clear and substantive view on that from the Committee.

4083. Mr Lunn: I have not heard any organisation, body or individual member express a view that coincides with the Minister’s that a 12-person board is the correct size. However, I thought that I detected a willingness of the Minister to think again.

4084. Mr Stewart: The Minister would expect me to say that she takes very seriously the Committee’s view on any issue that it raises with her, but specifically that one. It has not gone unnoticed by the Department that the two sets of issues commented upon most frequently by Committee members and stakeholders relate to the membership of ESA and the various aspects of employment arrangements, particularly the need for clarity, certainty and a challenge mechanism around the respective roles of boards of governors and the ESA.

4085. The Department has noted that and has advised the Minister that those issues are raised frequently, and by a very broad range of stakeholders. Therefore, on those matters in particular, and on any other aspect of the Bill, the Minister would welcome and take seriously any view from the Committee.

4086. Mr O’Dowd: Will the model schemes produced by ESA, which boards of governors may adopt, if they so wish, be produced in consultation with the trade unions?

4087. Mr Stewart: Yes, we want to consult the trade union movement on those schemes, and it is very important that the Department does so. One of NIPSA’s concerns was that, through this mechanism, we would somehow disassemble the central negotiating arrangements that have been in place for years and that ensure consistency and equality of terms and conditions for staff across education. The Department absolutely would not want to do that.

4088. The model schemes and the guidance produced by ESA will reflect the outcome of central negotiations and agreements between the employer — the ESA — and trade unions. We expect and require schools to give effect to those agreements in their schemes of employment and management, and we would certainly do so in the model schemes.

4089. The Deputy Chairperson: Gentlemen, thank you again for appearing before us. No doubt we will see you again in the near future.

6 May 2009

Witnesses:

Ms Frances Donnelly Ms Lorna McAlpine Mr Michael Wardlow		Northern Ireland Council for Integrated Education
Mr Liam Mac Giolla Mheana Mr Seán Ó Coinn Mr Caoimhín Ó Peatáin		Comhairle na Gaelscolaíochta
Mr Chris Stewart		Department of Education

4090. The Chairperson (Mr Storey): Michael, Frances and Lorna, you are very welcome. I invite you to make a presentation and members will ask questions about it. Papers on this topic are in members’ packs.

4091. Mr Michael Wardlow (Northern Ireland Council for Integrated Education): I have attended the Committee several times. However, I am not sure whether, as we work through this, you want us to stop when a question arises, or whether you want us to run straight through our presentation and answer questions at the end. What is easiest for you?

4092. The Chairperson: The practice to date has been that witnesses make a presentation and members ask their questions afterwards.

4093. Mr Wardlow: Members have received our short written presentation. We propose to elaborate on a few points in the ten minutes available. My two colleagues will speak on two specific areas. Some of our points are reports or comments, but there are one or two areas on which we would like to focus. As we understand it, there will be a second Education Bill. We have some questions that may be dealt with in greater detail as that second Bill is brought forward. We will raise those issues as headlines.

4094. Since the start of this process, we have welcomed the opportunity for educational reform. Whatever we think about the Education and Skills Authority (ESA) and its duties, the fact that there will be one body to co-ordinate and supervise the long overdue review of education is to be welcomed. We also welcome the fact that there will be a number of sectoral support bodies. Parental choice is at the core of the education system, and it is important that the schools that represent the sectors have support bodies to work alongside them, particularly as much of what is represented in those schools falls under the term “ethos". We are glad that the council will be one of those sectoral support bodies, and we look forward to seeing what the business case is and how it will work out for the 60 schools involved.

4095. It is good that the process is being dealt with equitably. We thank the civil servants, Chris Stewart and others, who have worked with us to ensure that everything is done equitably. We do not want people to feel that some are better off and some worse off in this process.

4096. As to general observations, we are supportive of the concept of an education and skills authority. We welcome that it will act as a single employing and administrative body to carry out the policy implications of education. That said, we have one or two concerns about its functions and will raise them as we work through the process. However, in broad principle, we welcome it.

4097. At the outset, I must point out that the Government have a duty under the Education Reform (Northern Ireland) Order 1989 to encourage and facilitate integrated schools and, latterly, Irish-medium schools. We want that duty to be made clearer, and we will come back to that issue later. At present, it is taken for granted that the 1989 Order will not change and that the duty to encourage and facilitate will continue to fall on the Department. We will return to how we would like to see that evidenced by the ESA.

4098. We also like the idea of an education advisory forum with equal representation that is presented in a number of papers, particularly policy paper 19. Our organisation, in common with others, is driven by parental demand. The very fact that we are engaging with a broader constituency and helping to advise on policy is important.

4099. I must flag up that a third of a million people in our education system are under the age of 18, so young people should have some level of representation on that forum. I can advocate for young people, but I cannot speak on their behalf. The best people to represent young people and to voice their needs are young people themselves. As the Northern Ireland Commissioner for Children and Young People (NICCY) shows, that can be done. However that forum is structured, the questioning voice of young people must not be lost. They have a right to be consulted on everything that affects them under the United Nations Convention on the Rights of the Child (UNCRC), and that must not be just lip service. I want to see those rights at the core of education policy.

4100. It is unfortunate that the duty to transform — in other words, for schools to opt to change their status — is, at present, often only one-way. We accepted in earlier discussions that schools can transform to become integrated but cannot transform from being controlled to Catholic maintained, which seems bizarre when there is a number of controlled schools of a majority-Catholic nature. If they wanted to become Catholic maintained schools, for whatever reason, they cannot do it by law.

4101. I believe that the Bill presents a good opportunity to review the legislation around transformation. We are not sure what that will look like, but we guess is that it will be included in the second Bill. When the education boards go, the legislation that was introduced to allow transformation to take place must be amended. We will be interested to see how that will work, because we envisage that most growth in the integrated sector will come about through transforming schools and more sharing.

4102. Those are my straightforward, specific comments. Lorna will speak about the employing authority, and Frances will then discuss the training function.

4103. Ms Lorna McAlpine (Northern Ireland Council for Integrated Education): We are very pleased that there will be a single employing authority and that all teaching and non-teaching staff will have the same terms and conditions. Roughly a third of our schools are controlled integrated schools and two-thirds are grant-maintained integrated schools. In their role as employers, those grant-maintained integrated schools have always set their own terms and conditions, which have generally mirrored those in the controlled and maintained sectors. However, money has not always been made readily available to deal with matters such as job evaluation. Consequently, some schools may have slightly different terms and conditions.

4104. We look forward to trying to ensure that finance is available for job evaluation and harmonisation. Thought must be given to how best to roll out that process in order to treat all staff equally under a single employing authority. It is also important to have an employment scheme in the sector, because we want the freedom to ensure that staff who are recruited maintain and support the ethos of integrated education.

4105. Mr Wardlow: I was disappointed by the suggestion in some of the earlier papers that ethos is something that is specific to schools, and that there is no higher understanding of ethos. Organisations that regard themselves as ethos-driven, such as ours, believe that there is an integrated ethos. That ethos may be applied differently in our 62 schools, but there is a core need to have it supported centrally. The appointment to a school of someone with a nodding acquaintance of ethos is wrong and should not happen.

4106. In the past, the Department has nominated to boards of governors people who have had very little understanding of, let alone a belief in, integration. It does not help when people without a commitment to the integrated ethos are appointed to boards of governors. Although I speak for the integrated sector, the principle can be applied right across all sectors. If we are to protect, maintain and develop ethos, it is important that the stakeholders and the people who hold that in trust at least understand what that ethos is.

4107. Ms Frances Donnelly (Northern Ireland Council for Integrated Education): I will discuss ethos in relation to training and delivery. The ESA will be responsible for training and advisory functions for all schools. The Committee may be aware that ethos is a central element of the Every School a Good School policy. Moreover, it is considered critical to school improvement. Therefore, we want the ESA to identify how it will support schools in their development of ethos.

4108. There should be an acceptance that sectoral support bodies have many years’ expertise in, and experience of, dealing with efficiency and effectiveness, particularly in developing ethos and supporting staff. In the future, the ESA should have regard to that fact in order to avoid duplication across the agencies. There are 60 integrated schools, and we will continue to work with them to develop specific training. Furthermore, it provides an opportunity for increased partnership, because, as schools collaborate more and move into partnerships, the idea of ethos and developing support for delivering education in a more diverse environment will be significant. We must ensure that the sectoral support bodies do not carry out functions that are part of the ESA’s obligations.

4109. Mr Wardlow: I will make some concluding comments, including a couple of observations, and I will outline two areas about which we are concerned.

4110. We welcome the fact that, under clause 36, part-time teachers will now be eligible to be on governing bodies. That is reasonable progress. Clause 16 mentions that the ESA will manage schools’ capital expenditure — however that is routed through the Strategic Investment Board and the Assembly, it is important to maintain principles of equity. The integrated sector has existed since 1981 only, and 40 of the 60 schools had to prove their viability before the Department approved them. That has meant that a charity has taken a loan of £20 million a year for the past 10 years. That has placed a charitable body in a precarious situation.

4111. We have been told that that is the price that we must pay for front-loading integration. In fact, the problem is that there is no integrated choice, because 5,000 people have been turned away in the past seven years. NICIE contends that there is now an opportunity to consider the capital estate on an equitable basis and, rather than make integrated schools take a different route to Irish-language schools, controlled schools and maintained schools, we should be treated the same. That will not happen unless real area-based planning, as recommended by George Bain, is placed at the core of the proposals.

4112. At the minute, I am involved in area-based planning that considers curriculum entitlement for children after the age of 14, but that is not the same thing. We believe that there is an opportunity to not only reinforce the vision or to tinker around the edges, but to give significant consideration to the educational estate, which has too many schools and 50,000 spare places. It should not simply be a knee-jerk reaction; we must look ahead and consider what the school estate should be in the context of future parental demand.

4113. Clause 23 lists the duties of the Department for Employment and Learning and the Department of Education. The duty to encourage and facilitate integrated education, which is outlined in the 1989 Order, is not included. I want to ensure that the Department still has such a duty and a process to confirm that it delivers on it. That duty may be changed in the future. However, two statutory duties currently exist — one to promote the Irish language and one to promote integration. NICIE wants to ensure that the Department’s duty remains and that it is audited.

4114. We are concerned that there is no mention of a duty on either Department to promote community or good relations — as we would have referred to in the past — or a shared future. I was a member of the Towards a Culture of Tolerance: Integrating Education working group, through which all education parties signed up to placing a culture of tolerance at the core of education. I do not accept that that should be displaced by an equality agenda, because equality and community relations and cohesion sit together. Unless equity and diversity are viewed as being interdependent in schools, division is simply being reinforced. We reflect the fact that the duty to encourage shared education— not necessarily through integration but through the possibility of a more fluid system and the promotion of good community relations with equality — is not there.

4115. We are concerned by the fact that politicians will make up the majority of the board of the ESA. Such a situation is not part of our operating principle. Partly because of our history, and partly because of where education sits, the ESA should not have a majority of politicians on its board. Even the fact that the education advisory forum is, in a sense, non-political does not take away from the fact that the people who will govern the ESA will come from political backgrounds.

4116. If the ESA board members react in a similar way to the way in which the Committee has done, that would be a different situation. I have never seen an orange or a green card being played at this Committee. I do not say that simply as a compliment; I think that things have moved on. However, there is still a huge stasis in education that must be dealt with outside party politics. We do not support the ESA starting out with politicians being a majority on its board, and we want that to be addressed.

4117. We welcome the fact that the board members will be paid. Our organisation has 62 schools, each of which has between 12 and 16 board members who do the job voluntarily, as does every member of every one of the boards of the 1,300 schools here. That is unseen money that goes into the system, and we think that people should be paid to sit on the board.

4118. In conclusion, we are not clear about some aspects of the Bill. We are not clear on how a school will transform to integrated status in the future, how boards of governors will be constituted in the future now that the Transferor Representatives’ Council will have the right to nominate once again and how the capital estate will be developed and planned. Currently, we are positively disposed to the ESA, and, apart from the reservations that we have raised, we support the Bill.

4119. The Chairperson: I thank Michael, Lorna and Frances.

4120. Given that the aim of the Minister and the Department is to have equality across the education sector and that Northern Ireland has a diverse education provision, is it any longer sustainable to have two elements of that educational provision protected and promoted to the disadvantage of the rest? You referred to the 1989 Order, and the Education (Northern Ireland) Order 1998 also makes reference to those sectors. Every time that this Committee has met since we began to consider the Bill, it has been said that we are seeking equality and that we will achieve that. It is good that your organisation is giving evidence, followed by C na G. How do you explain the position to the other sectors that feel that they are not treated equitably in the way that, under legislation, the integrated sector and the Irish-medium sector are? The process is about sharing, moving on and not playing orange and green cards. It is about everyone aspiring to treat everyone equally. Unfortunately, an ‘Animal Farm’ situation exists, because when it comes down to the nitty-gritty, people are not really being open about how equal they want everyone to be treated.

4121. Mr Wardlow: I shall answer for the integrated education sector. Comhairle na Gaelscolaíochta will give evidence later, and there is an issue over the Irish language being tied into the Good Friday/ Belfast Agreement, albeit under the 1998 Education Order as well. Our position is slightly different.

4122. The process is about equality of outcome. We need to see how that can be achieved. It may be that, as was the case with employment for a time, some legislative framework is necessary — in that instance, positive discrimination was needed to enhance women’s employment opportunities. Without legislation, women would not now be in the place that they are now. Unfortunately, a legislative framework is required to achieve equality of outcome for parents who want Irish-language or integrated schools. I hope that, one day, the need for that will go, and I hope that, one day, parents will have the right to choose the type of education that they want.

4123. The difference for integrated schools is that, since the establishment of the existing system in 1921 and its division in the 1930s and 1940s, there is now a system that divides seven ways. One third of a million children are divided seven ways: Protestant and Catholic, selective and non-selective, boys and girls, and everybody else. That is bizarre. I would not have started from this position, but that is the position that we are in.

4124. The problem is that the option of attending integrated schools has been available only since 1981, not 1921. We have had to catch up on those 60 years. I would love to see the day when the legislation is no longer required, but there must be equality of outcome and of access, which is not the case at the moment. Despite the fact that there are declining rolls, and 50,000 spare places, the numbers of pupils at integrated schools have increased every year since 1981. We have turned 5,000 children away in the last seven years, and almost 1,000 last year. At the moment, there are not enough places for parents who wish to send their children to integrated schools.

4125. Until we develop a system of area-based planning that will allow us to carry out community audits, our suggestion is that we go to communities and ask them what they want. That has been done in Omagh, and it has been proven that if one does a bit of polling and one works with people and explains to them what can be, it is possible to create the future. If area-based planning were undertaken, with areas being asked to consider what type of school they want, and if we were able to consider how to reach the situation in the next 10 years whereby parents who want Irish-language schools or integrated schools have that choice, then perhaps we would not need the legislation any more. However, I fear that, until there is equality of outcome, that will not be the case.

4126. The Chairperson: How do you square that with the fact that, having had that provision available to parents, one sector is still being treated differently from another? I want to link that with your view that there is a need for amendments to the transformation legislation. Since the creation of integrated schools, there has been transformation in one way only — from controlled to integrated. There has never been a transformation from a maintained school to an integrated school, despite the fact that there has been provision and opportunity for that.

4127. There was a campaign to transform one particular school — I will not name it — and when the transformation took place the people who had led that transformation sent their children to a controlled school. That school went through turmoil, and both the school and the community were divided. That is not good for education. There comes a time when one has to say that although one is supportive of parental choice, one is also supportive of parental responsibility. Why have schools in the maintained sector, for example, not been encouraged to move from maintained to controlled status? Lorna made reference to some figures earlier. Did you say that there are maintained integrated schools?

4128. Ms McAlpine: There are grant-maintained integrated schools, such as the greenfield site integrated schools and Lagan College.

4129. The Chairperson: Those are not maintained schools that have transformed; they are new schools.

4130. Ms McAlpine: Yes, where transformation was not possible or was not seen as an option in the local area.

4131. Mr Wardlow: Very simply, if we lack a strategic context we will not get strategic outcomes. There is no planning for provision of integrated schools. We do not actually know how many people want them. What has happened in the past is that a school faced with closure, or looking down the line at the possibility of the opening of a new integrated school, will often consider transformation. That is not the way in which transformation should be done. It has never been our declared intention. In fact, we have set our faces against transformation as a way to save closures. That is not the way to do it, but that will be the case until there is a proactive planning context in which we go into an area before schools start to look at their own future.

4132. Several schools recently approached our organisation when closure notices were issued, expecting that they would somehow be welcome to transform. If those same schools had attempted to plan integration five years ago, we could have delivered integrated outcomes without community disharmony. There is a lot of evidence about schools that have gone down that route. I am asking that, when we are considering area-based planning, the wishes of the community be considered. For example, our experience in Omagh was that when parents were offered an option to consider, they often did not know that it was available to them. Parents are very creative.

4133. In relation to the Catholic maintained sector, a policy paper was sent to the Towards a Culture of Tolerance: Integrating Education working group, which is probably still on record, stating that the nature of Catholic education is such that a Catholic school is held in trust by the trustees, in perpetuity, for the Catholic community in that parish. The parents, therefore, do not have the right to vote to change the nature of that school, because that school is held in trust as opposed to being in some way democratically owned by the parents.

4134. The legislation exists for such changes to happen in the controlled integrated sector, and a controlled school can become a hybrid controlled integrated school. It does not have to jump to become a fully autonomous grant-maintained school. In the Catholic sector, as I understand it, for a Catholic maintained school to become an integrated school, the only route open to it would be to become a grant-maintained integrated school — and, by its nature, therefore, it would no longer be a Catholic school.

4135. Therefore, one of the arguments is that the same legislation does not exist: there is not an in-between Catholic integrated school. However, the other issue, as I understand it, is that the trustees would say that it does not lie in a parent’s gift to vote through a transformation process. That gift lies with the trustees.

4136. That may or may not be the case. We have had requests from the parents of children at Catholic schools, and even from some teachers, who have talked to us about transformation. We would be willing to work with any school that comes to us — whether a selective or non-selective school, a boys’ or girls’ school, or a Catholic or Irish-language school — to see how we could creatively do something. However, the problem is that the system is piecemeal; it is a patchwork.

4137. We have grant-maintained schools only because parents created them, and Brian Mawhinney approved them under the 1989 Order. It was not the Department’s idea. We are constantly trying to create new methods, whether integrating education with 80 schools or developing a Kitemark for sharing, which we would love the Department and the Education and Training Inspectorate to take forward.

4138. In its shared future, Northern Ireland has to have a much more fluid education system. Integrated education is, we believe, an outcome as well as a school type, and as an outcome it can be delivered by other schools. Therefore, why do we not begin to look at the issue in a new and creative way, and to stop the, perhaps political, argument about a school saying that it cannot transform.

4139. The council has one small school, which I will not name, in an area with a Protestant minority. That school felt that it could not transform, but wanted to embrace integration. It has now changed its board of governors and been accepted into membership of the council, although it is not a transformed school. We accept that what that school does is integrated education. That is the sort of creativity that can take place when people engage. However, we do not want schools coming to us as a last choice, because that delivers precisely the angst in the Protestant community, and among the transferors, that you have outlined.

4140. The Chairperson: Before opening the discussion to members, I will ask one final question about the assurances that the council would need about the right of boards of governors to hire and fire. What would be the nature of those assurances?

4141. Ms McAlpine: The issue is more about the right to recruit and so forth being retained in the particular board of governors rather than being overseen by the ESA, and being second-guessed, for want of a better expression, by the ESA. That is linked to the ability to recruit someone who is committed to the principles of integrated education, and who will, therefore, be working in that context with children in the classroom.

4142. Mr Wardlow: It is like the situation with the teachers’ appointment committee. We do not want to get into a situation of having three principals and saying, “Take your pick." We want to retain the autonomy of all boards of governors to hire and fire staff. If the ESA becomes the employing authority in the sense of holding the conditions of contract and ensuring that that contract is carried through and that equity and the legal requirements are maintained, we do not want it being able to oversee or second-guess whether a teacher is dismissed, moved or suspended. That right should be retained by the local school.

4143. Mr D Bradley: Good morning. Mention was made of the lack of reference in the Bill to good relations or community relations, but clause 2 states:

“It shall be the duty of ESA (so far as its powers extend)—

(a) to contribute towards the spiritual, moral, cultural, social, intellectual and physical development of children".

4144. Does that not imply that if children develop in that way, they would be well-disposed towards good relations with each other and with other communities?

4145. Mr Wardlow: If I may reflect Duncan Morrow’s words: we have shopped with each other for years and we still do not like each other. Simply because we are together does not necessarily guarantee any outcome.

4146. It is important that the approach is holistic in body, mind and spirit, and we welcome that. Our fear is that the absence of a mention of good relations or community relations will mean that they will not be seen in the DNA.

4147. I am reflecting reality. We fear that the shared and better future is being neglected. For instance, a report on the cost of division was produced by Deloitte, but it seems to have gone; ‘A Shared Future’ seems to have gone; the 30 recommendations in the Bain Report on sharing seem to have gone. I am no longer sure what our thinking on a shared and better future is.

4148. I hear people say that if jobs are brought in, our problems might go away. That is trite. We must address the past and consider how good community relations can be built. It is not just about Protestants and Catholics; it is about people of mixed race and other faiths; and about the 14% of people in the North or Northern Ireland who, in the most recent census, said that they were not Christians. They do not want to be labelled Protestant or Catholic; we have a duty to ask what community cohesion looks like.

4149. If it is not mentioned, Dominic, I am afraid that it will go subterranean.

4150. Mr D Bradley: Would clause 2 be the appropriate place for its inclusion?

4151. Mr Wardlow: A possible solution would be to include a provision such as “and to promote a culture of tolerance". There are ways of including a form of words; if you like, we will come back to you with a suggestion.

4152. Mr D Bradley: Paragraph 3 of you submission states that:

“In our view the support for schools cannot be fragmented and so we would ask that this area of ESA’s work is carried out to the benefit of all schools of all sectors, in a way that uses existing expertise and experience to the best impact. This may be best facilitated through buying in of existing expertise."

4153. How would that be facilitated? People usually buy in expertise if they are unhappy with the existing expertise. There seems to be a contradiction. For instance, one of the arguments that the voluntary grammar schools use in defence of the voluntary principle is that, through it, they can buy in better expertise, as they see it, than is available through the curriculum advisory and support services (CASS) if they are not happy with existing expertise — and they claim that they have not been in the past.

4154. Ms Donnelly: I do not think that it is a case of their being dissatisfied; rather, it is a case of CASS not being geared to deliver the type of support necessary for ethos development in integrated schools. I can only speak for the expertise provided by NICIE, which is geared towards developing teacher skills for education for diversity, and I referred earlier to the opportunity to extend that to all teachers. If we continue down the road of greater collaboration and partnerships, teachers will find themselves in more diverse settings for which they are not prepared; they do not have the skills to deliver meaningful education in a diverse environment. We encounter many teachers who are enthusiastic about their work; they want to make a difference, but they do not have the skills to raise or manage sensitive or contentious issues or manage diversity in their classrooms because they do not have the required training.

4155. That is what I think is meant by expertise; I do not think that it referred to a dissatisfaction with CASS. CASS does a good job in supporting curriculum development but not ethos development.

4156. Mr Wardlow: The evidence for Frances’s statement is not simply anecdotal. Interesting reflections arose from research that was carried out at Queen’s University as part of the shared education project. Teachers said that they had not realised that collaboration was so hard; they were not prepared for it and had not been trained for it. It is an education to read the report from the teachers and governors of schools that engaged in collaboration. They had significant sums of money to help them, but, almost to a school, they said that they had not realised that getting together would be so hard.

4157. Now is a good opportunity to stop fragmentation and to say that if expertise exists in other places, we should use it. For instance, we run validated training courses that are attended by Police Service officials, youth workers and teachers. They journey together over weekends in training, and they gain an Open College Network (OCN) qualification in diversity. We do not need to reinvent the wheel. We are not alone; many people do this. This is a good time to look at the available training and at how we can make best use of it rather than reinventing the wheel.

4158. Mr D Bradley: If schools need that service, surely it should be provided by the support and back-up services of the ESA.

4159. Mr Wardlow: The ESA could outsource that function. Why not do that rather than have the ESA duplicate the function? It is common for Departments to outsource. They can often outsource cheaply because it may be only for a limited period or because the salaries of the people delivering the service may be different from those of civil servants. Let us look at value for money, and let us explore how the ESA can provide the function without having everything at the centre. One way of doing that may be to outsource our work collegiately or in partnership with other bodies.

4160. Mr D Bradley: Are you not in danger of diluting the economies of scale that the ESA is supposed to achieve and through which savings are to be created?

4161. Mr Wardlow: It depends on how it is done. There may be duplication if there is a centre from which spokes fly out all over the place. However, surely the ESA’s entire purpose is not to do everything itself. Its purpose is partly to co-ordinate; otherwise, the ESA would provide ethos support. We are simply saying that there should be an assessment of how training can be done. On one hand, most of it could be done centrally by people being co-opted or seconded to the ESA; on the other, people who are already carrying out training may be outsourced to continue doing it.

4162. Mr Elliott: Thank you for your presentation. It was good to hear your arguments, even though I may not necessarily agree with all of them. Michael, you talked about the different sectors and mentioned the Protestant and Catholic sectors. Do you classify one education sector as the Protestant sector?

4163. Mr Wardlow: No; absolutely not. I will read the minutes of the meeting, but I am sure that I did not say that; if I did, I was wrong. I think that I said “controlled", but let me clarify. We understand that there is a Catholic maintained sector, a controlled sector that is majority Protestant, an integrated sector, an Irish-medium sector and other sectors such as freestanding Christian schools, special schools and so on. I apologise if that —

4164. Mr Elliott: Thank you for that clarification. Ethos was mentioned a couple of times in your presentation. How is the ethos of integrated education different from that of the controlled sector? I have visited integrated schools, and I wonder how and where you see a difference from controlled schools.

4165. Mr Wardlow: The first thing is the forensic side, which is the general understanding that any school that is moving towards sharing, whether it is controlled or grant-maintained, will embrace an integrated ethos; that is partly supported by the mechanisms in the school. The management board and the teaching staff will reflect the two traditions as much as they can, and the boards of governors will certainly do that. The student intake will include a minimum of 30% of the minority tradition; other schools do not have the ability or right to ensure that. The forensic element means that a pupil is unlikely to be in a classroom in which he or she is in a minority of less than 30%.

4166. Mr Elliott: Just because boards of governors reflect the two traditions does not mean that the school and its teachers will reflect them.

4167. Mr Wardlow: That is the forensic side or the skeleton. Being born in McDonald’s does not make you a hamburger. In the same way, something will not happen just because people of different traditions sit around a table.

4168. The second element is how a school’s policies reflect our respective traditions. In many integrated schools, young people are involved in the writing of policies on issues such as discipline, uniform, flags and emblems. Young people and parents have a right to be, and are, involved in helping to develop those policies. A school’s ethos is, in many ways, set by the visual nature of the school, and parents and children from integrated schools have a huge democratic buy-in on the school’s name, badge and other visual aspects.

4169. The third thing is additional curricular activities. Children who have never played traditional British or Irish sports or studied the Ulster-Scots or Irish languages are open to new opportunities. Those activities are often contained in the hidden or added curriculum. The last thing is a wider promotion of integration. People ask about the difference between a maths class in an integrated school and one in a non-integrated school. It is not that a teacher says that one number is Catholic and another number is Protestant, although someone once made that joke to us; it is about respect, and that should be the same in every school. I do not disagree with you, but when those things are added together —

4170. Mr Elliott: Are you saying that that is not the case in every school?

4171. Mr Wardlow: No; not at all. It is not simply because we want people to love one another — that is not true — however, we are openly and avowedly anti-sectarian. Our teachers are trained to deal with contentious issues, not to hide them. It is our experience that, in some schools that have transformed to integrated status, that was not what they did before. Many teachers say that that is not the reason that they are in education, and there is an argument that that may be the case. However, we are saying that we will deal with hard issues openly. Those are not just Protestant/Catholic issues; there are issues about how language and identity are viewed.

4172. It is the amalgam of how a school is constructed, its student intake, policies and hidden curriculum; its atmosphere is also a factor. Our ethos support will share models of good practice; how to teach in and construct a classroom and how to allow parents’ and pupils’ voices to be heard. It is all those things. I cannot write you an integrated formula, because I have 62 of them. However, at the core of our schools is a belief that difference should be out in the open and discussed.

4173. Mr Elliott: Like most members, I am aware of controlled schools that have sizeable mixed religion and race cohorts. One controlled school in my constituency now probably has a majority of non-locals; it manages and is developing extremely well. Therefore, could the ESA bring the integrated sector into the controlled sector?

4174. Mr Wardlow: No. In 1921, Lord Londonderry made a suggestion that politicians and Church leaders did not accept. We cannot turn the clock back and say that there should be one form of school. Whether we like it or not, the majority on the boards of governors of controlled schools is from a Protestant tradition. That has a certain perception for non-Protestants, not just for Catholics but for other children.

4175. Mr Elliott: It does not stop schools in many areas attracting many from the Roman Catholic tradition.

4176. Mr Wardlow: Absolutely not — I do not disagree with you; I am simply saying that it is a question of perceptions. Some controlled schools that we work with say that they do not want to become controlled-integrated; they feel that there is a loss of Protestantism and, some have said, too much movement towards greenness. When we investigate it, part of it stems from a lack of a consistent, thoroughgoing Protestant ethos and identity — there is not one. There are 106 Protestant denominations in the North of Ireland or Northern Ireland and one Catholic one, so how do we say what a Protestant ethos is? The transferors struggle with that, and they have issued an ethos document. We are very comfortable to work with schools, such as the school I talked about earlier, which was a controlled school that wants to become integrated but which does not want to transform; it is delivering an integrated outcome.

4177. Therefore, I agree with you. The more shared education we have, whether it is called integrated or not, the better. We are not here to make a pitch for forced integration; it did not work in America; we are for voluntarism. However, the problem is that there is not equality of outcome.

4178. Ms Donnelly: Michael mentioned the Kitemark, or charter mark, on which we are working. It is notoriously difficult to describe what is meant by ethos: sometimes it is a feeling that a person gets when they go through a school’s doors. The Kitemark is an attempt by our sector to define what an integrated school looks like and how it manifests its ethos. We have arrived at a Kitemark, which we are piloting. However, that is not exclusive to the integrated sector. As Michael said, if schools with mixed enrolments feel that they can achieve the Kitemark, they can do so without having to hang the title “integrated" on the school gates. We hope to work with many schools in future that can show that the high-quality education that they provide and which every child deserves is integrated.

4179. Mr O’Dowd: Thank you for your presentation. You talked about the need for a shared future and a shared society, but you said that it is not a good idea that elected politicians be the majority on the ESA. If this society is to move forward — and I think that it is moving forward — we politicians must learn to work together, and we have done that successfully and have shown leadership. Why should we not form the majority on a board that will direct the second-largest budget in our society?

4180. Mr Wardlow: You asked a direct question, and I will answer you frankly. Four of the nine governors of the board of governors of a controlled school come from the Churches; churchmen may not have a majority, but that does not mean that they do not have influence. We would be happy for a large minority of politicians to be on the membership of the ESA, as we believe that that would send out the best message. However, politicians should not form the majority of members. I am responding frankly to you, John.

4181. We have supported devolved government from day one. Even a few years ago, people would not have believed what is happening in Northern Ireland today; it is a privilege to be here in a joint group. However, perhaps it could create a certain suspicion among people about the new organisation if a majority of its members were politicians; people might question the democracy behind that decision.

4182. A gesture by politicians to agree to take four of the nine seats would not be wasted. We do not want politicians to be absent; however, at the present time it could send out the wrong message if they were to dominate the new body; although we could be mistaken.

4183. Mr O’Dowd: It could send out the wrong message to dismiss politicians in such a manner; it suggests that they are not to be trusted with education or health. Society elects or does not elect its politicians; therefore if we are to democratise society, they have to be involved in all sectors — although not, of course, to the exclusion of others. There is a question mark over the proposed number of people on the ESA; we must see whether the ESA can be broadened to include other sectors. We will agree to disagree on that.

4184. I found your comment on the educational advisory forum and the participation of young people on it interesting. You said that NICIE has young people involved — I am sorry; have I misinterpreted you?

4185. Mr Wardlow: It is not NICIE; it is the Northern Ireland Commissioner for Children and Young People.

4186. Mr O’Dowd: Have you thought through how young people will be involved in the forum? How will you work that out?

4187. Mr Wardlow: My background is in youth work, and I have worked in several countries. Everywhere that I have worked, I have had to speak on behalf of young people, even though I am no longer a young person. That might have passed you by, but it is the case. [Laughter.]

4188. Young people have the right to be consulted on everything that affects them; they have a right not only to have their voice heard, but to have it demonstrated to them how their views are dealt with. It does not mean that you have to do what they say, but you have to tell them: this is what we heard you say; this is why we did it or why we did not do it, and we will continue to engage with you.

4189. There are various ways of doing that. For example, one of our schools has two young people on its board of governors; they sit in on the first hour of meetings and take part in everything that happens. Young people are involved in the appointment of the Commissioner for Children and Young People; and they are involved now in the appointment of many youth workers across Northern Ireland. To claim to know what young people want and to speak on their behalf is not fair; the United Nations Convention on the Rights of the Child does not allow it. Tokenism is also wrong. To stick two young people on a board simply because you can tick a box is also wrong. That needs to be thought through.

4190. More important is the process by which young people are consulted on policy matters. It is less important if they are on the board than that they are fully consulted and that their voice is not only heard but listened to and acted on in every policy imperative. That applies even to young children. Queens’s University has shown that one can deal with children as young as four years of age to find out what they think and how they act. Talking to young people would help us to make progress in the debate on what should be done at 11 years of age. I have no simple answer for you, John, but we need a mechanism for doing that.

4191. Mrs M Bradley: Paragraph 4 of your letter of 20 February refers to clause 16, “ESA to pay capital grants to voluntary and grant-maintained integrated schools". You say that:

“We would hope that by this transfer, all schools will now be treated equally in terms of capital build and estate provision."

4192. Did you find that integrated schools were not treated in the same way as other schools?

4193. Mr Wardlow: Absolutely. I say that because of the nature of the development of integrated schools, not that the Department acted inequitably towards us.

4194. The Department has a statutory role to encourage and facilitate, and that is fulfilled by our working with parent groups or with transforming schools. A new integrated school is not allowed any capital development until it proves that it is viable; in other words, until it meets the criteria. That can take up to five years. To get to that stage, we need to borrow money from the bank to buy the site and to put mobile classrooms on it; in any one year that can cost us £20 million. That is not Government money; we take the risk, as a charity, for that, and our sister organisation provides a guarantee. That does not happen anywhere else, and it is the nature of how integrated schools react and come out of the woodwork. I agree with Mervyn on that point. It is a patchwork approach, and it cannot continue.

4195. If we were to consider the type of provision that we would like in Antrim, for example, we could do it through area-based planning and deliberation, which would involve a five- to 10-year plan during which time existing schools could be transformed. I am using that as a broad term to deal with the number of student places in response to what that local community would like available for it. It would remove the need to build ad hoc schools or to fill spaces with mobile classrooms. Unfortunately, that is where we are coming from, and it is more a criticism of the lack of planning for integration rather than the Government deliberately treating us unequally.

4196. The Chairperson: Is club banking unfair and unequitable?

4197. Mr Wardlow: Yes. The accounting officer of a small charity should never have had to carry £20 million of borrowing every year.

4198. The Chairperson: Thank you very much for your presentations; they were very useful. You are welcome to stay for the Department’s response; we can make it available to you before you leave.

4199. Mr Wardlow: Thank you very much. All the best for the rest of the day.

4200. The Chairperson: We will move on to the presentation from Comhairle na Gaelscolaíochta (C na G). Good morning, gentlemen; you are very welcome. Please make your presentation to the Committee and then members will ask you questions on it.

4201. Mr Caoimhín Ó Peatáin (Comhairle na Gaelscolaíochta): I am the vice-chairman of Comhairle na Gaelscolaíochta. On behalf of the comhairle, I thank the Committee for the invitation to make a submission. I introduce Liam Mac Giolla Mheana, who is one of our senior education officers; and Seán Ó Coinn, who is our chief executive. Seán will make our presentation this morning.

4202. Mr Seán Ó Coinn (Comhairle na Gaelscolaíochta): I want to offer apologies from Dr Mícheál Ó Duibh, who is our senior development officer. He is sick and is unable to be here today.

4203. Comhairle na Gaelscolaíochta is very supportive of the ESA; it is a very good idea and is a considerable opportunity for the education system in the North. Comhairle na Gaelscolaíochta seeks several amendments to the Bill to effect parity of treatment for the Irish-medium sector with other educational sectors. The changes primarily relate to elements of the Bill that we feel may weaken the linguistic ethos of Irish-medium schools. By ethos, we mean aspects of Irish-medium provision that encourage the use of Irish among pupils, thereby facilitating their acquisition of the language. More than 90% of children in Irish-medium schools come from non-Irish-speaking backgrounds.

4204. We also seek to use the Education Bill to strengthen aspects of Irish-medium provision that, we feel, are poorly catered for in existing legislation.

4205. In immersion education pupils are educated through a second or additional language; in our case that is Irish. Immersion education is an internationally recognised methodology and has been proven beyond doubt by respected educationalists to provide pupils with significant educational benefits in numeracy, science and literacy in their first and second languages, as well as offering them the opportunity to acquire their additional language. Those benefits are achieved through pupils being given access to a strong second-language ethos in their schools. A weakening of that linguistic ethos could have a negative effect on the educational benefits, including — although not exclusively so — the children’s acquisition of Irish.

4206. Our first proposed amendment is to include a reference to Irish-medium education in clause 2, as that clause deals with the functions and general duties of the ESA concerning its role in providing support for Irish-medium education,. The Belfast Agreement refers specifically to the role of the Department of Education in respect of Irish-medium education, and it is important that that duty be reflected in the duties of the agencies of the Department of Education. In this case, we propose to bring most of the agencies of the Department under the umbrella of the ESA, and it is important that that duty be reflected there.

4207. Our second proposed amendment relates to submitting authorities. We seek an amendment that will recognise the Irish-medium trustees as a submitting authority for the purposes of the submission of schemes of management and employment. According to that amendment, Irish-medium trustees would have a definitive role in approving schemes of management and employment in line with provisions in the Bill for the Catholic trustees.

4208. The Bill acknowledges subsidiary roles to which the ESA must have regard in the discharge of its function, and it mentions areas such as the needs of industry, economy, society and the professions. We seek an amendment to require the ESA to have regard for the needs of Irish-medium pupils to be facilitated to use Irish in society beyond the confines of their schools.

4209. We seek an amendment to the ESA’s role in appointing governors. We propose that a requirement be placed on the ESA to have regard to the commitment of governor appointees to the maintenance of the Irish-medium ethos of Irish-medium schools and of Irish-medium units in English-medium schools. That provision already exists for the integrated sector and the controlled sector, whereby education and library boards are required to ensure that the people that they nominate to the boards of governors of those schools are committed to the schools’ ethos. That is contained in the Education Reform (Northern Ireland) Order 1989, and such a rule relating to the Irish-medium sector should be included in the Education Bill.

4210. We seek an amendment that will give a clear definition of what constitutes Irish-medium provision in a school and in part of a school. “Part of a school" is how an Irish-medium unit in an English-medium school is referred to in current legislation. The current definition of Irish-medium education is used for curricular purposes only and is ambiguous. We propose a definition in the Education Bill to allow for a designation of a school as an Irish-medium school or as a unit as part of a school by means of a scheme, for the purpose of education Orders, as well as for curricular purposes.

4211. Representatives of the Irish-medium sector do not currently have a right to be consulted on development proposals that pertain to Irish-medium schools. However, those who represent, for example, the Catholic sector have a right to be consulted. We want an amendment that, in the interests of contributing to a strategic and effective approach to the future development of Irish-medium education, creates a right for representatives of the Irish-medium sector to be consulted on development proposals. Such a right would be similar to rights that Catholic trustees currently enjoy in existing legislation.

4212. Comhairle na Gaelscolaíochta is eager for its staff to be treated equally in relation to the likely impact of the review of public administration (RPA) on their employment. We are concerned that, because of the revised financial arrangements, staff will not have access to the same redeployment opportunities that arise from the development of the ESA that staff in other organisations will enjoy. Given that Comhairle na Gaelscolaíochta is not a statutory body, we understand the significant difficulty in legislating for such provision in the Bill. However, we ask the Committee for its support to ensure that C na G staff are treated on a par with staff in other organisations in that regard.

4213. The Chairperson: I will begin by asking the same question that I asked the representatives from the Northern Ireland Council for Integrated Education. Other sectors in the diverse educational provision in Northern Ireland would consider the position of the Irish-medium and integrated sectors to be advantageous and privileged because of the duty to facilitate under the 1989 Order and the terms of the Belfast Agreement. Would a change that places all education providers on a par be detrimental to the promotion and protection of educating children in the Irish medium?

4214. Mr Ó Coinn: One of the reasons that the Irish-medium sector is mentioned in the Belfast Agreement is because Irish-medium education is significantly underdeveloped in the North and parental access to it is limited. In large swathes of the North, parents have no access to any level of Irish-medium education. In most areas, they have no access to post-primary Irish-medium education. Therefore, it is important that an organisation such as ours is facilitated to encourage and assist parents to access Irish-medium education.

4215. Apart from, perhaps, the integrated sector, that job is unnecessary in other sectors. It certainly is unnecessary in the controlled sector and the Catholic maintained sector, which have well-developed networks of provision throughout the North. For that reason, it is important that Irish-medium education is treated differently to other sectors so that we are allowed to continue to help parents to access Irish-medium education.

4216. The Chairperson: I want to ask a question that does not specifically relate to the Bill, and you can provide one answer. This is the first time that you have visited the Committee when I have been present. The Education and Training Inspectorate’s ‘Chief Inspector’s Report 2006-2008’ highlighted the slowdown in growth in the sector in the past number of years. Has your organisation responded to the chief inspector’s report, which raised several issues on standards and provisions that concerned people who have an interest in education? The chief inspector specifically mentioned the slowdown in growth, which he interpreted more as consolidation. That is not directly related to the Bill, but with regard to how the Committee looks at the future provision of education in Northern Ireland, it is important for us to have some understanding about whether you feel that that was an accurate reflection of the sector.

4217. Mr Ó Coinn: We think that it was, and we are very encouraged by many of the comments in the chief inspector’s report, particularly those about the achievements of young people. Recent statistics show that young people in Irish-medium education are achieving at least as well as, and in most cases better than, children in the English-medium sector in English and maths at level 5.

4218. The consolidation is more by design rather than through a slowdown in demand in that a young sector such as ours recognises the importance of consolidation and of not running too far ahead of ourselves. It is important that the system is allowed to keep pace with the need for development. The chief inspector’s report mentioned the issue of leadership in our schools, and we recognise that. Most of the teachers in the Irish-medium sector who are available to become principals and vice-principals are very young, because it has been only a few years since people started to train to become teachers in the sector.

4219. That is a growing pain of which we are conscious, and we will look to the ESA to support Irish-medium schools in those areas where we are experiencing growing pains as a result of the young age of our sector and our stage of development. We certainly hope and recognise that as our teachers get older and acquire more experience, those issues will gradually work their way out of the system.

4220. The Chairperson: You refer to the ESA’s duty to encourage and facilitate the development of Irish-medium education. What else do you feel needs to be in clause 2 to enhance what is being done in the sector, or to do more than is being done?

4221. Mr Ó Coinn: We would like the clause to have the wording that there is a duty by proxy, so to speak, on the ESA to encourage and facilitate the development of Irish-medium education. The main reason for saying that is because, in the current system, there is no duty on agencies of the Department to encourage, facilitate or support Irish-medium education. Agencies such as the education and library boards do so through departmental funding that is earmarked for that purpose. That is an unhealthy situation to be in as we move to the introduction of the ESA.

4222. We would like to see whatever funding is allocated to the ESA making provision for all the children in its care, and that would include the Irish-medium sector as an integral part of the whole education edifice. That sector is entitled, as of right, to provision from the ESA as part of its core functions, rather than to be set aside for earmarked funding from the Department.

4223. Mr D Bradley: Maidin mhaith daoibh, agus tá fáilte romhaibh. Go raibh maith agaibh as an chur i láthair a rinne sibh. Tá cúpla ceist agam le cur oraibh. You are very welcome. I have a few questions, the first of which continues with the point that the Chairperson raised. Was it the experience of Comhairle na Gaelscolaíochta in the past that as policies emerged from the Department and its agencies, cognisance was not being taken of Irish-medium education?

4224. Mr Ó Peatáin: Some years ago, like yourself, I worked as a seconded teacher with the boards, at a time when Irish-medium education was at a very young stage. My experience was that certain board officers found that that form of education was something new to them — it had not been budgeted for and the boards did not have specific personnel to deal with it. Consequently, they found it very difficult to cope with.

4225. Schemes that the Department put in place were short term: a teacher was seconded for a year, perhaps two, to carry out a scheme. When the funding ran out and the scheme finished, the schools were left on their own. Sometimes the scheme was never properly wound up. Any work was very much carried out on an ad hoc basis. Our argument is that if that work were part of the ESA’s duties from the outset, it would be a new start, and it would create a much happier situation than has existed in the past.

4226. Mr D Bradley: One of your major concerns relates to promoting, maintaining and protecting the ethos of Irish-medium schools, and you have several proposals for doing that. One proposal is that the trustees of an Irish-medium school should be given the power to act as a submitting authority, comparable with the arrangement in the Catholic maintained sector. We put some of those ideas to the Department, and its officials said that such an amendment would have little effect, since, in most cases, the trustees and the boards of governors of Irish-medium schools are one and the same group.

4227. Mr Ó Coinn: That is not the case in so far as Irish-medium trustees, as with trustees in other sectors, have nominating rights to boards of governors. We feel that the trustees of the Irish-medium sector, as with the trustees of any sector, are guardians of the type of education in their sector. They have a particular role to play, and that role does not involve interfering with the running of a school: that is the job of the board of governors and the staff in the school. The role of the trustee is to ensure the long-term welfare of the type of education that has been established and the long-term welfare of the school.

4228. Like the Catholic sector, we feel that it is appropriate that important documents, such as schemes of management and employment, reflect the ethos of the school — whatever ethos means. To us it means the characteristics of a school that encourage and support young people in using their Irish language in school and choosing to use their Irish language when they are not in school. That is a lay definition, but it is that type of thing that we are concerned about. Although it is not an immediate concern, we feel that situations could arise whereby boards of governors or principals could make decisions regarding that aspect of an Irish-medium school because of the exigencies that might exist at a particular time — whether for funding reasons or because of external issues — and that those decisions might be detrimental to the environment in the Irish-medium school. It is the role of the trustee to ensure that that does not happen.

4229. I will give an example of something that happened recently. Some parents were concerned about the transfer issue and the fact that the new tests being developed by grammar schools would not be available in the Irish language, and they were placing pressure on Irish-medium principals to teach through English in year 7 so that the children would be familiar with answering questions in English. Thankfully, that has not happened, and both the Association for Quality Education and the Catholic Heads Association will be providing Irish-language versions of their tests.

4230. However, principals and governors could be placed under a pressure that they are not able to sustain, and we feel that in such a scenario the role of the trustees is very significant and should therefore be recognised in our sector in the same way as it is recognised in the Catholic sector. It should also be recognised in the other sectors and with the transferors and controlled schools.

4231. Mr D Bradley: To continue on the theme of ethos, in some of the Department’s responses the Minister places great value on the ethos of all schools in all sectors. However, the departmental officials who have appeared before the Committee have told us that the ethos of a school or a sector cannot be precisely or easily defined and is therefore not appropriate for inclusion in legislation. They have said that the best vehicle for the protection, promotion and support of ethos is through the sectoral support bodies. Do you take issue with that, or do you see those bodies as being an appropriate means of protecting ethos?

4232. Mr Ó Coinn: Although we recognise that it is virtually impossible to come up with a legal definition of a specific ethos, we feel that the concept of ethos is definable and can be legislated for. However, we feel that the way to support ethos in schools is through a sectoral support body, and that it is important that the ethos is agreed by schools and is not imposed on them. Ethos should be developed through a sectoral support body that has the support of its schools and that reflects that support back to schools in helping them to define what ethos means for them and how to give effect to it. That body must ensure that, as schools and boards of governors change, the ethos is maintained and protected in schools. We feel strongly that there is an important role for bodies to be able to do that for a specific ethos.

4233. We do not believe that any single body can support ethos throughout all sectors, because no schools in other sectors will want to create an environment whereby use of the Irish language is encouraged and children are encouraged to choose to use the Irish language outside the school as their means of communication with one another. We would not expect other schools to have that type of ethos, so therefore who else would be able to support schools in developing such an ethos other than a sectoral support body?

4234. Mr Ó Peatáin: The support mechanisms can be legislated for, and if they are in place, the chances are that the ethos will be in place. If they are not there, the ethos will not be there.

4235. Mr D Bradley: So you believe that not only is a sectoral support body needed to underpin the ethos, but those other amendments must be made, too.

4236. Mr Ó Coinn: The proposal is that the sectoral support bodies would be non-statutory bodies, just like Comhairle na Gaelscolaíochta currently is. For that reason, our influence in Irish-medium schools is dependent on schools accepting that influence — they are not required to. However, people have rights in legislation, including the trustees of all schools. That is why we feel that as the bulwark against changes that might be detrimental to ethos, and so that ethos is not entirely dependent on the influence of a sectoral support body, other mechanisms must be built into the legislation to protect it. One such mechanism is the recognition of the Irish-medium trustees as having the same status as trustees in other sectors.

4237. Mr Lunn: The amendments that you have asked for are generally fairly specific. Judging by the response that we have had from the Department, you will be given a listening ear by the Minister on some of them. You seek an amendment that requires ESA to have regard to the needs of Irish-medium pupils to be facilitated to use their Irish in society in general, beyond schools. Is it realistic for the Education Bill to try to dictate what happens beyond the school?

4238. Mr Ó Coinn: The Bill already asks the ESA to have regard to a number of areas beyond the school in relation to industry, commerce and society in general. In that context, we also feel that the ESA should have regard to areas that are not specifically dealt with in the confines of school but that are well within the remit of education. Those include aspects such as youth provision, extended schools provision and areas in which schools have an interface with society and with the community. We seek an amendment for the ESA to have regard to the needs of Irish-medium children in society, which are different and additional to the needs of children who are being educated in the medium of English.

4239. Mr Lunn: You made a couple of points that are not mentioned in your written presentation. The presentation mentions that the Bill will require the ESA to have regard to the needs of industry and the economy, but those needs do not depend on the language through which pupils are taught; they depend on the curriculum and what they are being taught. I do not quite understand the connection.

4240. Mr Ó Coinn: The ESA will be required to have regard to certain needs other than its direct function, which is to support schools. Those needs include the needs of society, industry and the economy, and we seek an amendment for it also to be required to have regard to the needs of young people in using their Irish outside the context of the school. That is as legitimate an issue for the ESA to have regard to as its having regard to industry, commerce and society in general.

4241. Mr Lunn: I am not familiar with your medium, but do your pupils — particularly at primary level, where they seem to be more concentrated — use their Irish outside of school?

4242. Mr Ó Coinn: They do, of course.

4243. Mr Lunn: Do they use Irish in their normal play, conversation and social interaction?

4244. Mr Ó Coinn: That develops as the children’s proficiency develops and as they mature as young people. When young people have a choice between using the Irish language and the English language — for instance, when a number of Irish speakers are together — young people frequently use English. That is because of peer pressure or, perhaps, embarrassment. In addition to giving young people the skills to use Irish, Irish-medium education seeks to encourage young people to use their Irish so that it becomes part of their way of life. Ultimately, if they are lucky enough to marry and have children, those people will raise their children to speak Irish, and, in the longer term, that will contribute to the development of the number of people in society who speak the language.

4245. Mr Lunn: I am not hostile to what you are trying to do; in fact, I am very supportive of it. However, I still cannot think of what the wording would be of the amendment that you seek.

4246. Mr Ó Coinn: We have come up with a draft wording:

“and for the requirements of persons being educated through the medium of Irish."

4247. That amendment would be added to clause 26(1)(a), which contains two sub-paragraphs relating to the requirements that the ESA shall “have regard to". We seek a third sub-paragraph, which would require the ESA to have regard to a person’s education through the medium of Irish so that the ESA is facilitated to support, for instance, youth provision for young people and the development of an economic awareness of the Irish-language economy among young Irish-medium pupils. That would require the ESA to recognise that there is a growing group of young people in the sector with needs that are specific and different from the needs of young people in English-medium education. For example, there is a growing Irish-language economy, North and South, and the ESA should have regard to that when interacting with young people in the Irish-medium sector.

4248. Mr O’Dowd: Fáilte romhaibh. The ethos issue has largely been covered, but some of your suggested amendments are avenues through which the concerns of the Catholic trustees, the Governing Bodies Association and the integrated sector can be answered, because many of the sectors that have appeared before the Committee are very concerned that their ethos is not protected in the Bill. It has already been commented on that it may be difficult to protect ethos in legislation, but the mechanisms to protect it may be easier sought out. Therefore, some of your suggestions would affect a number of sectors.

4249. Will you outline your concerns about how staff who are employed by Comhairle na Gaelscolaíochta will be protected in the transfer under the RPA?

4250. Mr Ó Coinn: A number of matters has been agreed with the Department of Education, one of which is that staff in Comhairle na Gaelscolaíochta and in NICIE who are involved in the discharge of direct services to schools will transfer to the new authority. That is fine, but our concern is for the employees who are left behind when that transfer has taken place. We may not have the financial capacity to retain all those remaining employees because of the new funding arrangements for sectoral support bodies.

4251. Therefore, the question is: what will happen to them? Compulsory redundancy payments will be available to them, in the same way as they will be available for all the other organisations. However, as we understand it, staff in all the other organisations will be able to enjoy the opportunity of redeployment to the ESA, as such opportunities arise, but when our sector achieves its new funding provision, we will have to make compulsory redundancies immediately. In that instance, those staff members will not have access to redeployment opportunities in the ESA.

4252. Therefore, on 1 January 2010, and thereafter, employees of the Council for Catholic Maintained Schools, the Council for the Curriculum, Examinations and Assessment and the boards will have access to all the opportunities that are available in the ESA. Before the jobs go public, they will be advertised within the affected groups, as they are being called. However, employees in our sector will be made redundant. They will not have access to those jobs, unless they cannot be filled from within the affected groups. Therefore, employees will be treated just like any other member of the public who is seeking a job. They will have to wait until the jobs have been filled from within the pool before they can have access to them.

4253. Our concern is that we are not being treated equally in that respect. We recognise that it is probably not something that can be covered in legislation. As far as we can gather, the matter is too complex. We are a non-statutory organisation, and this is about statutory organisations. However, we ask that the Committee supports parity of treatment for our employees.

4254. Mr McCausland: Thank you for your presentation. The Chairperson made a point earlier about the Belfast Agreement and the 1998 Order including a duty to encourage and facilitate the development of Irish-medium education. You then went on to explain that the outworking of that was the creation of your own organisation, which you see as a fulfilment of that.

4255. In so far as there will be a support body, or whatever it may be called, for each of the sectors, that issue, in a sense, is resolved because there will be provision across the sectors. However, is the inclusion of a phrase that says that you encourage and facilitate the development of Irish-medium education in any way diminished and how would it be diminished? I was not clear on that point. If it were to say that it is the duty of the ESA to encourage and facilitate the development of all forms or all sectors of education, would that in any way take away from what you have?

4256. Mr Ó Coinn: I had not thought about it. My initial reaction is that it probably would not.

4257. Mr McCausland: It would address the issue of equality.

4258. Mr Ó Coinn: I appreciate that. The issue that we seek to address — although being novices to legislation we are not entirely sure how one might address it — is if the ESA, because it does not have ear-marked funding to support children in Irish-medium schools, decided not to do certain things. We want to ensure that such a situation cannot arise and that the Irish-medium child has the same esteem, parity and rights in the education system as children in English-medium schools and that that is enshrined in legislation. I suspect that ensuring parity for all children — including children in Irish-medium education — should cover our concerns.

4259. Mr McCausland: For many of us the issue is one of equality across sectors. Your point about something not being able to be done because money is not available happens in all sectors. If there were a form of words to create the same provisions for all sectors equally, that would be fine.

4260. I was not clear on the point that Trevor Lunn made. Services outside the school were mentioned, including youth provision, which might or might not be outside the school; extended schools, which would be inside the schools; and awareness of the economy, although I would have thought that all schools would make children aware of economic opportunities. Apart from those three examples, which are probably provided for automatically, and certainly it is the responsibility of the school to make children aware of career opportunities — and you are right that there is an Irish-language economy in parts of Northern Ireland — how would you address issues outside the school?

4261. Mr Ó Coinn: It relates to the support and facilitation that the ESA would give to schools; for instance, to allow schools to make children aware of the economy and the needs of society. The ESA could do that without reference to the Irish-language economy, or perhaps in ignorance of the fact that there is an Irish-language economy; it would be appropriate to make such information available to children in Irish-medium schools. The ESA must have regard to issues other than the delivery of education — and we do not know why that was included in the Bill — therefore it should also have regard to the needs of Irish-medium children.

4262. Mr McCausland: Children in other sectors see opportunities for economic advancement or economic potential in other fields. Why do we need to specify one sector?

4263. Mr Ó Coinn: I presume that the default position would be that the ESA would have regard to the economy, commerce, employment and society in general through the medium of English. As the development of an Irish-language society and economy is relatively new and needs to be nurtured and supported, the danger is that the ESA might not have regard to it; and that its default position would be to have regard to those issues through the English language and that young people in the Irish-medium sector might be expected to benefit through English. However, they would not, because it would not be in the context of the available Irish-language opportunities.

4264. Mr McCausland: I would have thought that the most natural thing would be for the Irish-language economy to work with Irish-medium schools and the children in them and vice versa.

4265. Mr Ó Coinn: I agree with you. However, our difficulty is with the ESA. How would the ESA support that?

4266. Mr McCausland: How could the ESA support that? Is that not an issue for the schools?

4267. Mr Ó Coinn: I am not altogether sure what was envisaged when clause 26, which calls on the ESA in the discharge of its duties to have regard to the requirements of industry and commerce regarding education, was drafted. We felt that if the ESA is to have regard to society, commerce and the professions, it should also have regard to the needs of Irish-medium education and the children in it. I suppose that comes from experience, Nelson —

4268. Mr McCausland: Belt and braces.

4269. Mr Ó Coinn: It is not so much a question of belt and braces, but rather that we know what has happened in the past. Most of society and its agencies see education through the perspective of the English-medium sector — and why would they not? Most children are educated in that sector. However, a group of young people is emerging with specific needs, and we would like to ensure that they are included when we have an opportunity to develop a new education dispensation. It is a question of inclusion and of not leaving those children behind. We do not want to have to struggle with the ESA five or 10 years down the line to get it to recognise the needs of a group of young people when that could have been done at the outset.

4270. Mr Ó Peatáin: Youth and career services are often provided outside the school, and it is important that career advisers realise, for example, when working with an Irish-medium school that there is an Irish-medium economy. The careers services should be aware of that, and they would be more connected with the ESA than with individual schools.

4271. Mr Mac Giolla Mheana: I can think of two other examples: the Irish-language interface with libraries and the Irish-medium interface with health, which are significantly underdeveloped. We ask the ESA, in its interface with those agencies, to promote the needs of Irish-speaking children.

4272. Mr McCausland: As the Library Authority is a separate body, is it really the role of the ESA, which is under one Department, to start lobbying another Department?

4273. Mr Mac Giolla Mheana: Where the ESA interfaces with other public bodies —

4274. Mr McCausland: Where would that interface occur?

4275. Mr Mac Giolla Mheana: They would, I presume, meet the ESA about, for example, the deployment of speech and language therapists in schools. That comes under health, and the ESA would interact with the health services on that issue.

4276. Mr McCausland: Do you mean where those bodies provide services in Irish-medium schools?

4277. Mr Mac Giolla Mheana: Yes.

4278. Mr McCausland: How would that work with libraries?

4279. Mr Mac Giolla Mheana: Children in Irish-medium schools have specific needs and requirements, and the ESA should promote those needs and requirements with other agencies.

4280. Mr Ó Coinn: The Library Authority will be responsible for libraries and library services in schools.

4281. Mr McCausland: However, if another education sector, such as the Catholic maintained sector, has a Catholic ethos, would the job of the ESA be to promote a Catholic ethos with other bodies?

4282. Mr Mac Giolla Mheana: I do not think that we are talking about an ethos in the Irish-medium sector; we are talking about the ESA acting as a champion for services.

4283. Mr McCausland: Yes. However, equally someone could say that if the ESA is going to promote a Catholic ethos in Catholic schools because that is what the Catholic-maintained sector does, surely, we should be lobbying the libraries to ensure that there are more books about Catholicism. The situation could become bizarre. It is turning the ESA into something that it is not meant to be.

4284. Mr Ó Coinn: We are not asking for libraries, for instance, to have books about Irish-medium education and the promotion of Irish. However, we would ask that libraries have books in Irish about all aspects of society.

4285. We do not want to use the ESA or libraries as a means of promoting Irish-medium education; we are happy that such Irish-language books are about any subject under the sun. However, we would like young people — particularly those whose parents perhaps cannot afford to buy books — to have access to books in Irish in community libraries and in Irish-medium schools.

4286. Mr McCausland: I will not pursue the point, but there is an issue about libraries for the Irish-language community to deal with; it is not the role of the ESA to start telling another body what to do.

4287. Mr Ó Coinn: I am not saying for a moment that the ESA should have such a role, but it should have regard to those issues. That is worded clearly in the legislation. The legislation does not say that that is a core duty and responsibility on the ESA; it is, however, something to which the ESA should have regard. The use of the phrase “have regard to" rather than “will have a duty to" or “is part of its functions" shows that it is of a subsidiary nature.

4288. You are right; it will not be a core duty of the ESA, but we would like the ESA to discharge its duties with regard to the needs of children who are taught in the Irish-medium sector outside the confines of their classrooms and schools.

4289. Mr McCausland: Apart from libraries and health and social services, what other services would be affected?

4290. Mr Ó Coinn: We have already mentioned areas of work relating to youth and, in particular, career guidance.

4291. Mr McCausland: Is that it?

4292. Mr Ó Coinn: The point of the legislation is not to outline every detail of what will happen in the next five, 10 or 15 years. If, 15 or 20 years ago, teachers had been told that one of their pupils would be a web designer, they would have looked askance. My point is that we do not know what society holds for our young people in the next 10, 15 or 20 years. In facilitating the development of the young people in Irish-medium schools and as those young people leave those schools to enter society as, we hope, productive members, the ESA should have regard to their needs through the Irish language.

4293. Mr Elliott: Thank you for your presentation. I will not address you in Irish, because I do not know any. Forgive me for that. On one hand, it appears that you welcome the Education Bill and the idea of bringing all the education bodies under one umbrella organisation; yet you seek more independence in the ESA. For instance, you want an entitlement to delegate submitting authority to trustees as well as to boards of governors. Are you looking for the best of both worlds? There is no harm in that, but do you not think that such a request goes beyond the ideals of the ESA?

4294. Mr Ó Coinn: The Irish-medium sector, more than any other, stands to benefit from the development of the ESA and the support structures that the ESA will bring to all schools; Irish-medium schools should be an integral part of the ESA. As far as I understand, the legislation already allows for submitting authority to be with boards of governors. Our concern is that boards of governors are in office for only four years; they do not take a long-term view. We would like to have that responsibility vested in somebody who takes the long view of a school’s welfare.

4295. Mr Elliott: Is it up to the Irish-medium sector to decide whether submitting authority lies with the board of governors or with the trustees?

4296. Mr Ó Coinn: It should be up to the trustees to decide. They have been given a responsibility; they are the guardians of a school’s long-term welfare.

4297. By “school" I do not mean a school building; I mean the provision in a school. We are not interested in school buildings; it is what happens in schools that is important. The trustees are the guardians of what happens in their schools in the long term. We do not want our schools to be independent of the ESA; we want them to be part of the ESA and to be supported by it —

4298. Mr Elliott: Do you seek independence of authority?

4299. Mr Ó Coinn: The only area in which we seek an influence for trustees — not for ourselves — is in the submission of schemes of employment and schemes of management. In most cases, we expect that role to be delegated to schools’ boards of governors; however, because of the involvement of trustees, certain aspects are common to all Irish-medium schools. Thereafter, those roles will be delegated to boards of governors, which will be responsible for the day-to-day management of a school in the context of those schemes. Therefore, the schemes will be concerned only with ensuring that — as far as possible — children can acquire and use Irish in school. It will not extend beyond that.

4300. Mr B McCrea: You said that you are novices in legislation; so am I — it is a learning experience. However, given the positive responses, you seem to have the ear of the Minister. Perhaps you can give the Committee some classes on that skill.

4301. Mr D Bradley: Through the medium of Irish, no doubt.

4302. Mr B McCrea: If that is what it takes, Dominic.

4303. Mr D Bradley: I will give you a couple of ceachtanna.

4304. Mr B McCrea: You said in your submission, Seán, that the ESA offers an opportunity. What problems with the current system will the ESA address?

4305. Mr Ó Coinn: Caoimhín said earlier that the present system has evolved over many years and has certain structures and systems in place. When Irish-medium education is introduced, it is difficult to adapt those systems to the needs of the Irish-medium sector. Over the years, a system has evolved whereby provision for the Irish-medium sector is achieved through additional funding from the Department and through agencies such as the education and library boards, CCEA, and so on. That is an unhealthy situation.

4306. Mr Ó Peatáin: It is an ad hoc system.

4307. Mr B McCrea: Will the ESA provide an opportunity to mainstream?

4308. Mr Ó Peatáin: Yes.

4309. Mr B McCrea: I have two or three straightforward questions. In response to Nelson, you said that you thought that the Irish-medium system would benefit from the ESA more than other sectors. Why would that be the case?

4310. Mr Ó Peatáin: It will bring Irish-medium education into the core of education provision and make it more mainstream.

4311. Mr Ó Coinn: We can do that in a planned way. To date, the education and library boards and CCEA have had to plan on the hop to deal with new Irish-medium schools, and they consider the needs of those schools and whether there is sufficient expertise in their respective organisations; if they do not have the necessary expertise, they must ask themselves how they will cope. We now have an opportunity to establish an organisation to plan for the inclusion of the Irish-medium sector to the same degree as all other sectors. Of course, the Irish-medium sector should not be treated better than other sectors, but it should be included in the planning.

4312. Mr B McCrea: What percentage of the school cohort — and you may tick whatever age group is convenient — do you anticipate will be educated in the Irish-medium sector? Your paper estimates that attendance will grow to between 8,000 and 10,000 over the next 10 years. What percentage is that of the school cohort?

4313. Mr Ó Coinn: Ideally, we feel that all children could benefit from being educated through the medium of Irish. It is hard to know what percentage, because in large areas of the North parents do not have access to Irish-medium education, and until parents have a mechanism for doing so we do not know whether they want Irish-medium education or not. However, it would be somewhere between 5% and 10% on the basis of those figures, depending on population trends over the next number of years.

4314. Mr B McCrea: That is an interesting figure, because I reckon that, even at the upper level, it is about 3%. There are about 300,000 people in education. My concern is the so-called tyranny of the minorities: we try to do everything for everybody and end up doing nothing for anybody.

4315. You should try to understand and address Nelson’s point that what you say has implications elsewhere. Encouraging the use of Irish outside the school and expanding into youth services and libraries could place an obligation on the ESA to correspond with various bodies in Irish. Should the Health Service, for example, produce leaflets in Irish? That could cause concerns about costs. It would be helpful if you clarified the extent to which the state should engage in Irish. Nobody is saying that you should not have the opportunity, but it would be difficult if it were to become an obligation on the state. Do you understand my point?

4316. Mr Ó Coinn: I do. We are not so much concerned about obligations on the ESA to do certain things for the Irish language; rather we are concerned about what the ESA does to support the education of young people in Irish-medium schools. That may mean in some cases spending extra money, but we think that that is justifiable; it has to be reasonable and there is a limit to what we can expect; nevertheless, we feel that it is legitimate. It is not our function to decide what the ESA should do in relation to the Irish language and in corresponding with other organisations; our job is to ensure the welfare of the young people in our sector and to ensure that in whatever new systems may be developed our young people are not left behind.

4317. When we talk about health, for example, we mean speech therapists who know how to deal with young people in an Irish-medium school who have speech difficulties. That is not to say that every speech therapist who goes into an Irish-medium school must be a fluent Irish speaker; it has nothing to do with that. It has to do with ensuring that the professionals who support our schools and who assist our young people know what Irish-medium education is and what immersion education — which is practised widely throughout the world — involves. It is about ensuring that they do not tell a parent or teacher that a child has speech difficulties because they are being educated through a second language. That has happened in the past, even though it has no foundation in any research or practice anywhere.

4318. That is the purely anecdotal lay opinion of someone who does not understand the system. We are trying to ensure that such things do not happen when the ESA develops.

4319. Mr B McCrea: Given that the Committee is still taking evidence, it would help if, at some stage, you wrote a paper to explain what you are trying to do. At the risk of labouring the point, Tom Elliott highlighted the fact that every set of witnesses said that it broadly supports the ESA but that it wants this, that and the other sorted out. You are not dissimilar from them. Every group said that it likes the concept of the ESA but that it wants to be an employing authority to ensure that the ethos is right in its school —

4320. Mr Ó Coinn: No: we do not want to be an employing authority. We said that we want our trustees to be able to have certain things in the schemes of management and employment; however, that does not mean that we want our trustees to be an employing authority. Unlike other sectors, perhaps, we are happy that the ESA have the role of employing authority. We do not seek to ensure that curricular support, or any other support, for the Irish-medium sector sits outside the remit of the ESA; in fact, we have asked that curricular and teacher support be firmly located in the ESA. That is our wish, and we support the ESA in that context.

4321. Mr B McCrea: That explanation is useful; however, you have a job of work to do to flesh out fully for those of us who are not involved in Irish-medium education what exactly the limits are and what you want. We will also try to engage on that.

4322. There is an issue of parental choice. Some people want their children to be educated in Irish-medium schools — which is fine — others want their children to be educated in schools with a Catholic ethos, and others want their children to be educated in an academic environment.

4323. A problem exists in that some sectors are happy to support some forms of parental choice but not others. I do not want to put you in the hot seat, but it would be helpful if all sectors reflected on that point maturely and tried to assist everybody. Ours is a diverse society, and we should be able to find a way of giving everyone what they want, within the bounds of reason, and you have a contribution to make to that. I have tried my best to understand and participate, but you must help us, too, by giving us a balanced approach.

4324. Mr Ó Coinn: Perhaps we differ from the other sectors on the issue of new schools in that we are happy for Irish-medium provision to be developed in existing schools. We see no conflict between the Irish-medium ethos and the religious ethos — or whatever ethos a school may have.

4325. We are working with the integrated sector to develop Irish-medium provision in one of its schools; we already have one controlled Irish-medium school and several Catholic maintained schools with Irish-medium units. We realise that we cannot build a new school in every town where parents want their children taught through the medium of Irish.

4326. Mr B McCrea: You do not have to answer this question, as time is moving on. Given the relative newness of your proposition to mainstream Irish-medium education, it strikes me that an opportunity exists for sectors to get together to reach common ground, not just with their immediate neighbours but with others. Mature, responsible educationalists should be able to come to some sort of compromise and guide us through.

4327. You have a useful role to play in that. I will not detain you any longer.

4328. The Chairperson: Caoimhín, Seán and Liam, thank you very much for your presentation and for your submission. The Department has provided a response to your submission, which we will make available to you today to give you an idea of its thinking.

4329. Mr Ó Peatáin: Thank you, Mr Chairman.

4330. The Chairperson: I welcome Chris Stewart from the Department of Education to the Committee; members will have a copy of his submission. Perhaps Chris will give us a brief overview of the Department’s response, and members will ask him questions on it.

4331. Mr Chris Stewart (Department of Education): I am conscious of the pressure on the Committee’s time, so I will keep my presentation short.

4332. Mr B McCrea: You say that every week.

4333. Mr Stewart: Yes, and every week I fail to deliver on it; I am conscious of that. I will begin with a few points on NICIE’s submission and will move on to that of Comhairle na Gaelscolaíochta. The Minister welcomes NICIE’s support for the reform of education administration, including the establishment of the ESA and the policy of sectoral support.

4334. NICIE sought an assurance that boards of governors would continue to take the key decisions on the recruitment and dismissal of staff, and the Committee has discussed that issue several times. The Committee is familiar with the Department’s position, and I am happy to give NICIE the reassurance that is has sought on the role of boards of governors.

4335. Clause 13 deals with training and advice and support, and NICIE referred to the potential role of sectoral bodies in providing those services to schools; they could perhaps be commissioned to do so by the ESA. The Committee is familiar with the Department’s position on that issue, as it was discussed at some length last week. It is the Department’s intention to have a mixed economy of services, involving the ESA and other providers. The aim of the policy is to ensure that it is a matter for the ESA, and particularly for schools, to determine how such services would best be procured.

4336. NICIE called for the general duty on the Department to reflect more explicitly than at present the promotion of good relations. We understand and note NICIE’s views. However — and this will answer one of Michael Wardlow’s questions — existing duties, such as those in section 75 of the Northern Ireland Act 1998 and the duty on the Department to encourage and facilitate integrated education, continue to apply, as they remain on the statute book.

4337. We note NICIE’s comments on the membership of the ESA; similar comments have been made by members and by other stakeholders. The Committee is familiar with the Department’s position and with the Minister’s willingness to consider the Committee’s views.

4338. Michael Wardlow asked about the legislative provisions on transformation, and I hope that my answer will provide him with some clarity and reassurance: no significant changes are planned to those provisions. The necessary technical amendments are in the first Bill rather than in the second one; they simply reflect the changes in organisation and administrative arrangements.

4339. The Minister welcomes the support of Comhairle na Gaelscolaíochta for the reform of education administration, including the establishment of the ESA and its role as the employer of staff in grant-aided schools, and for the retention of youth services in education.

4340. The Minister agrees with Comhairle na Gaelscolaíochta that the ESA should have a statutory duty to encourage and facilitate Irish-medium education, and the Department will wish to consider how best that might be reflected in legislation. It is examining the options suggested by Comhairle na Gaelscolaíochta.

4341. Comhairle na Gaelscolaíochta raised several points and made suggestions under the general heading of the ethos of Irish-medium schools and how it should be safeguarded and fostered. It was suggested that the submitting authority for schemes of management and schemes of employment for Irish-medium schools should be the trustees of the schools; other stakeholders have suggested a similar change. The Minister welcomes that suggestion and is already considering, as members will be aware, a change to the Bill that will produce the outcome sought by C na G. The Department has found the explanation and clarification of the role of trustees of Irish-medium schools helpful.

4342. The suggestion was made that clause 26(2) should include a reference to the needs of persons being educated in the Irish language. The Minister agrees that there is a need for such a change, but she will wish to consider further how it might best be reflected in legislation. The Department understood C na G’s suggested amendment to clause 26(2) to refer specifically to curriculum and examination functions. However, the description that Seán and his colleagues gave this morning was somewhat broader, and therefore clause 26(2) might not be the appropriate home for such a provision. That is something that the Department will need to consider further.

4343. It was suggested that there ought to be a formal definition for Irish-medium schools and a designation scheme similar to the approach in legislation to Catholic maintained schools. However, although the Minister has indicated that she supports each sector’s role in fostering and developing its ethos, we do not feel that the prescriptive legislative route is the appropriate vehicle for doing so. The definition of Catholic maintained school is not connected to ethos; it is merely a technical measure. It was originally needed to delineate the group of schools that were to be the responsibility of the Council for Catholic Maintained Schools (CCMS), and when CCMS is dissolved that definition will no longer be needed and will be removed from legislation.

4344. However, two other aspects would provide the reassurance that C na G seeks. First, any significant change to the character of a school, such as ceasing to provide education through the medium of Irish, would need a development proposal, and any person making such a proposal must first consult the board of governors, the teachers, the parents and the trustees of a school.

4345. Secondly, the Department envisages the scope for a school’s scheme of management to include a requirement that a board of governors would not be permitted to make a significant change to the character of a school without the agreement of the submitting authority. That, taken with the possible amendment to the submitting authority provision, should provide the reassurance that C na G seeks.

4346. C na G refers to provisions in existing legislation regarding the appointment and duties of governors of integrated schools. Those are referred to in the paper, and their focus is, by and large, on requiring governors to use their best endeavours to maintain the viability of schools as integrated schools. C na G suggests the need for a similar provision for Irish-medium schools, and the Minister agrees that there is a strong case for doing so. We want to consider how best to take that forward.

4347. C na G asked for provisions to protect the terms and conditions of staff who transfer to the ESA as well as those who do not transfer. The Minister emphasises that any staff who transfer from C na G to the ESA will have their terms and conditions of service and pension entitlement protected on the same basis as staff who transfer from statutory organisations. The Department understands why C na G has asked for those commitments to be included in the Education Bill; however, as we explained previously, a difficulty stems from the fact that C na G is a private, non-statutory organisation. The inclusion of the suggested provisions in the Bill could render it a hybrid Bill — a Bill that covers both private and public law matters.

4348. The difficulty is that the Assembly does not yet have a separate procedure for dealing with hybrid Bills. There would therefore be a very high risk that the changes sought by C na G would delay the Bill significantly, which would, in turn, delay the implementation timetable for the RPA. In those circumstances, the Minister concluded that the change should not be made, as it would involve considerable risk of delay to the Bill and to the implementation timetable of the RPA, with no additional benefit to C na G staff.

4349. Seán and his colleagues raised the issue of staff who might be at risk of redundancy. I want to reassure them that any staff in any RPA organisation at risk of redundancy would be regarded as part of the affected group, and therefore able to apply for jobs as they are brought forward for advertisement. We would, of course, want to work closely with C na G, as with any organisation, to avoid compulsory redundancy if possible — and we are confident that that is possible.

4350. C na G has asked for provision to be made in the Bill to give the trustees of Irish-medium schools a statutory right to be consulted about development proposals in relation to Irish-medium education on a similar basis, as they put it, to Catholic trustees. C na G’s paper suggests that, perhaps, it sees that as a collective role and gives a perception that the trustees of Catholic schools have such a collective role at present. However, the Education Bill does not, in fact, give such a collective role to Catholic trustees, nor indeed to trustees in any other sector.

4351. Paragraph 9(4) of schedule 7 is the key provision in this respect, introducing as it does a new article 14 to the Education and Libraries (Northern Ireland) Order 1986 to deal with development proposals. Under proposed new article 14, the trustees of any school must be consulted about a development proposal that would affect the school. In those circumstances, the Department is satisfied that the Bill contains equitable provisions that ensure that the trustees of all schools in all sectors will be consulted on development proposals that will affect their schools.

4352. We also suggest that the collective role that C na G seeks might be more appropriately exercised in the area-based planning process. Proposals for the second education Bill, which we hope to bring before the Committee in a few weeks’ time, will include provisions for sectoral interests — and other interests such as pupils, parents, staff and governors — to input collectively to the area-based planning process.

4353. Chairman, that was a quick gallop over the ground. I will stop now for questions.

4354. The Chairperson: Thank you, Chris. It is clear from your response to this morning’s presentations that the Department is considering amendments to clauses 2, 3, 26 and 31. When will the Committee see those proposed amendments? Time is marching on. Yesterday, we received a sizeable document from the Department with information on the Committee’s concerns; it also contained references to more information being presented shortly, and you mentioned earlier that we may have sight of the second Bill in a few weeks’ time. Documentation on the Bill will continue to increase. After all, it will not be a simple matter of bringing amendments to the Committee to be agreed on the nod; there will be deliberations on whether such proposed amendments are appropriate or have adequately addressed the Committee’s concerns.

4355. Do you have an idea about the time frame for proposed amendments? We are marching through May, and summer recess will soon be upon us.

4356. Mr Stewart: You are quite right, Chairman; there is much still to get through. May I start by dampening your expectations on the second Bill?

4357. The Chairperson: Oh dear.

4358. Mr Stewart: I do not think that I will be in a position to bring you a full second Bill as quickly as you might wish. However, I hope, within the next few weeks, to give the Committee a fairly full description, derived from the drafting instructions, of the content of the second Bill, particularly on area-based planning. I think that a presentation on the policy on area-based planning is scheduled in the Committee’s work programme. We would like on the same day, if it is acceptable to the Committee, to give you a fairly full description of how the legislation on area-based planning might look. If possible, I would like to make draft clauses available to the Committee to give it as full a picture as possible.

4359. We have what we hope is the definitive list of amendments to the first Bill, which the Department will put before the Minister for clearance; as soon as it has been cleared, we will make it available to the Committee. If it possible to have that ready for next week, we will do so, but I will not make any promises. We should certainly be able to make that list available to you within the next two weeks.

4360. Mr McCausland: I was interested that the representatives from the Irish-medium sector said that they had no difficulty with the duty to encourage and facilitate one particular sector or sectors being broadened to include all sectors. Are you currently looking at that issue?

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

4361. Mr Stewart: We are not actively looking at it; however, I suspect that we ought to, because it raises a number of interesting questions.

4362. Mr McCausland: What would those questions be?

4363. Mr Stewart: The question that occurs to me at this stage — and there may be many more — is what exactly the scope or focus of such a duty might be. We all have an understanding of what is meant by “sectors of education", but converting that into something that can be captured in statute represents a particular challenge.

4364. One can define Irish-medium education and integrated education fairly simply. However, once one moves beyond those to look at other types of education and schools, it becomes more of a challenge to provide meaningful definitions or descriptions. I am not saying that those challenges are insurmountable, but they need to be worked through very carefully to ensure that such a provision would be sufficiently clear and meaningful in the legislation.

4365. Mr McCausland: There was a concern that the folk running an Irish-medium school might attempt to change the ethos of the schools to something else. At present, schools can transform or change only from controlled status to integrated status. If we are going to reassure folk in the Irish-medium sector that their schools will not be changed into something else, and given that we already know that Catholic maintained schools cannot be changed because of their ownership arrangements, do you intend to include some provision in the Bill that will offer the same reassurance to schools in the controlled sector?

4366. Mr Stewart: If the provisions are carefully framed, we can achieve that effect for all sectors. From what C na G and the Catholic trustees have said, it is clear that trustees, who take the longer-term view of the ethos of their particular schools or sectors, want to ensure that boards of governors, which by definition are more transient authorities, continue to have the proper regard for that ethos.

4367. In an attempt to provide for that, we have suggested the concept of a submitting authority. If the legislation were suitably amended, such an arrangement would give trustees the opportunity to exercise a measure of control — and I use that word advisedly — over boards of governors in particular schools. We feel that a submitting authority is the vehicle that would allow us to do that without diluting or departing from the core principles of the RPA by setting up additional layers of bureaucracy or additional statutory authorities.

4368. Once again, that probably raises particular challenges and requires a degree of creativity for controlled schools. However, if that can be done, and if the core principle is the same — to give those who will foster or be the guardians of the ethos of a particular sector the means of ensuring that boards of governors and schools continue to respect and operate in accordance with that ethos — that principle can be reflected for all schools.

(The Chairperson [Mr Storey] in the Chair)

4369. Mr McCausland: Would respect for the ethos of the school include not transferring it to a different ethos?

4370. Mr Stewart: Yes, that is a reasonable suggestion.

4371. Mr McCausland: Finally, the representatives of the Irish-medium sector raised an issue about the needs of Irish-medium pupils to be facilitated to use their Irish in society in general, beyond schools. What is your assessment of the propriety of that proposal, which some people might perceive as an intrusion into areas beyond the remit of the ESA?

4372. Mr Stewart: That is a difficult question for me to answer. To do so, I would have to consult with my policy colleagues who are more directly involved in Irish-medium education policy. The matter is beyond my sphere of competence within the RPA. From an RPA perspective, I think that the description of the aim of the suggested change takes it beyond the focus of the particular clause in the Education Bill that it seeks to amend.

4373. Therefore, we perhaps need to discuss further with C na G and, indeed, the Committee the intention behind the suggested amendment. If the amendment is more tightly focused around curriculum and examination matters, then, as the Minister has indicated, clause 26(2) may be the right place to do something and C na G’s suggestion is along the right lines. If, however, the ambition is broader and intends to strengthen and underpin the role of the Irish language in society generally, clause 26(2) is not the right place for that proposal. Indeed, it may be that the Education Bill is not the right place for it.

4374. Mr D Bradley: Good afternoon, Chris. In its submission, NICIE said that the Bill does not mention good relations or community relations. You heard the NICIE representatives being asked whether they felt it appropriate to include that aspect in clause 2, which outlines the ESA’s duty:

“to contribute towards the spiritual, moral, cultural, social, intellectual and physical development of children".

4375. The Department’s response did not address that point. What is your view on that matter?

4376. Mr Stewart: I thought that I had addressed that matter; perhaps I was not clear enough. The Department understands the sentiment behind NICIE’s proposal but does not think that such an additional duty or reference is necessary, because the Department and, in due course, the ESA will be subject to section 75 of the Northern Ireland Act 1998. People tend to remember the first half of section 75, which focuses on equality. However, it contains a second statutory duty that focuses specifically on good relations. That will apply to the Department and to the ESA. Therefore, the short answer is: such a duty already exists — or, in the case of the ESA, will apply to it soon.

4377. Mr D Bradley: Mr Wardlow’s point was that other policies, such as A Shared Future, have fallen by the wayside and that the only way to guarantee a movement towards the improvement of good relations and community relations is to mention it in the legislation specifically.

4378. Mr Stewart: Although policy documents such as A Shared Future — which I remember fondly from the days when I was involved in writing it — might evolve and change, the statutory duty in section 75, and, therefore, section 75 (2), will remain.

4379. Mr D Bradley: Will the Department at least consider NICIE’s point?

4380. Mr Stewart: At the Committee’s request, I am happy to ask the Minister again. However, our response today would be that we have considered the matter, and we politely disagree with NICIE.

4381. Mr D Bradley: Will you consider the point further?

4382. Mr Stewart: Yes.

4383. Mr D Bradley: Comhairle na Gaelscolaíochta said that the trustees of Irish-medium schools should have the power to act as submitting authority. In your initial response, you said that the trustees and boards of governors of Irish-medium schools are one and the same and, therefore, the amendment would have little effect. Does the Department still hold that view?

4384. Mr Stewart: No; that was my understanding at the time. However, after subsequent conversations with Seán Ó Coinn — and he clarified the point today, helpfully — I appreciate that the trustees of Irish-medium schools, similar to those in Catholic schools, have a separate function and exist independently of boards of governors. Therefore, the suggested amendment is more valuable and could operate how C na G wants it to. The Minister was minded to do that anyway, but C na G’s helpful clarification means that it is more useful to the Irish-medium sector, too.

4385. Mr Elliott: Your response says:

“However, whilst the Minister is committed to supporting each sector in fostering and developing ethos, we do not feel that legislation is the appropriate vehicle for doing so".

4386. What is the appropriate vehicle?

4387. Mr Stewart: The appropriate vehicle is support for the sectoral bodies and their role. The Committee heard several times, particularly from the Governing Bodies Association and, to an extent, from the Catholic trustees, strong support for the voluntary concept in schools. What could be more voluntary than the ethos of a school or sector? Therefore, what could be more difficult to define, capture and underpin in legislation than ethos? We feel that the the correct approach is to be indirect and to equip, encourage and facilitate sectoral bodies in their role in fostering and developing ethos, rather than have the Department prescribe it.

4388. Mr Elliott: OK; that will do for now.

4389. The Chairperson: Thank you for your attendance.

13 May 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Ms Michelle O’Neill
Mr Edwin Poots
Mr Tom Elliott

Witnesses:

Sir Kenneth Bloomfield Mr Roy Lilley Mr William Young		Association for Quality Education
Mr Roy Beggs Snr Mr Peter Duffy Mr Gary Haire Mrs Hilary Sloan		Association of Northern Ireland Education and Library Boards
Mr Chris Stewart		Department of Education

4390. The Chairperson (Mr Storey): Good morning. I welcome to the Committee for Education Sir Ken Bloomfield, Mr Roy Lilley and Mr William Young from the Association for Quality Education (AQE). We have received your written correspondence on the Education Bill. Sir Ken, I ask you to make your presentation, after which members will be free to ask questions.

4391. Sir Kenneth Bloomfield (Association for Quality Education): Thank you for inviting us to give evidence to the Committee. We welcome the opportunity.

4392. I will begin by explaining why the association has decided to submit evidence. Many of our members are members of the Governing Bodies Association (GBA) — although not all of them, because controlled schools are among our members. As you know, the GBA has given extensive evidence to the Committee. Indeed, it has suggested amendments to the Bill that it believes are required to deal with its fears and reservations, which, I hope, have been useful to the Committee. We support the GBA line. We believe that the Committee ought to give its suggested amendments serious attention.

4393. In addition, as you well know, individual schools have responded to the Bill; not just to the Committee, but directly to the Minister. For instance, my school sent observations to the Minister, and I received quite a detailed reply from her. Therefore, you might ask why we are here. Are we simply here to repeat what you have heard already from other interests? It is no secret whatsoever that we have been campaigning, essentially, on the issue of post-primary selection. I am sure that you do not want to go over all that again — as we have, numerous times. The reason that we fight that campaign is because we believe that it is necessary to preserve the essential ethos of our schools.

4394. Frankly, through the work of the AQE and others on the issue of selection, we hope that we will still win that battle. However, on the other hand, the ethos of our schools, which we value and are trying desperately to protect, could be in real danger if boards of governors lose that degree of control, particularly over voluntary schools. Controlled schools will speak for themselves. To deprive the boards of governors of voluntary schools of the responsibility that they have always had for running their own schools, we believe will be both counterproductive and a threat to the ethos that we are trying to protect through the selection mechanism.

4395. I want to comment on the ESA and on the wider issue of the review of public administration. As most of you will be aware, I spent a fair number of years toiling in the trenches of public administration here in Northern Ireland. It would be an idiot who would contest the notion that Northern Ireland would benefit from a rationalisation of its public sector. On an earlier occasion, I said that the mechanisms that operate here are those of a great nation state. Therefore, on the education front, the notion of amalgamating the pre-existing education boards and certain other bodies into a single organisation seems to us to be eminently sensible in many ways. It should result in financial savings. Unfortunately, it will probably result in the shedding of manpower. However, we are in no way antipathetic to that proposal.

4396. On the other hand, we do not see how concentrating the powers that were previously exercised mainly, but not exclusively, by education and library boards in a single body should mean that the relationship of that single body to individual schools should be radically different in kind to the relationship that the several education boards have, until now, enjoyed with those schools.

4397. Like many other people, and I am sure that my colleagues at the table have had the same experience, I have gone to conferences about the forthcoming legislation at which people such as the chief executive designate of the ESA — a man for whom I have the greatest respect and regard — have been present. Interestingly, when people at those conferences expressed their reservations about the legislation, they were told that the ESA will be there to support, help and advise them. The words “direct", “control" and “own" never occurred in that dialogue.

4398. Schools, the AQE and the GBA have expressed concerns about some aspects of the legislation since it was first presented. However, the Minister has given personal assurances that the powers given to the ESA are only default powers, and that, in practice, the schools will be able to run themselves in much the same way in which they are run at the moment.

4399. I am chairman of the Royal Belfast Academical Institution (RBAI) board of governors, and we provided the buildings. I pointed out to the Minister that the school does not get capital moneys, and that it is therefore a bit thick to get someone to go to the school in order to tell us in tremendous detail how we should run it. She responded by saying that there is no intention whatsoever to take over or nationalise schools. Imagine that a company runs an industry and owns the buildings, but all the people who work in the buildings are not its employees but the employees of some other organisation. It is, therefore, rather ridiculous to suggest that the system has not altered in some radical way.

4400. We did not want to give the Committee an inordinately long briefing paper, so I hope that we have made our thoughts fairly clear.

4401. One particular concern is the employment issue. We have had all sorts of assurances about the way in which the legislation is intended to operate. However, I am what American jurists would call a strict constructionist, in that I like to look at what the law actually says. If this Bill is passed into law, every person employed in every school in Northern Ireland, from the headmaster to the groundsman, will be an employee of the education and skills authority, rather than of the schools. That is a very radical change.

4402. The Department seems to be saying that although we can devolve powers, in most practical respects, schools will be able to continue doing what they have been doing up until now. That does not reassure us. Assurances given at one time can be cancelled at another. People must look at what the law actually says about the matter. In this respect, the law unambiguously says that all teachers and other staff in schools will be employees of the education and skills authority. That is a big issue.

4403. The other issue is schemes of governance. We represent a wide range of schools, some of which have ancient schemes of governance that occasionally have been found in Acts of Parliament. The legislation, as currently drafted, seems to be saying that the education and skills authority is entitled to tell a school to change its scheme of governance if it thinks that it is not good enough. On the one hand, we are trying to preserve the ethos, tradition and character of our schools. On the other hand, it seems that the decision on a school’s scheme of governance ultimately rests with the ESA.

4404. We touched on other issues in the briefing paper, but the ones that I outlined today are the main concerns. I do not see much point in repeating what the GBA has already said about the need for the legislation to be amended to reflect its concerns; we basically share those concerns. We are not reassured by the Department’s big guarantees that everything will be all right.

4405. Mr William Young (Association for Quality Education): I have only a few comments to add. I agree with Sir Kenneth: one of the two main issues is governance. The policy paper uses words such as “maximized supported autonomy". However, the law runs totally against that sort of thing. Control, governance and the change in employment of staff are all major issues, and the transfer of powers is a crucial aspect of the legislation. They say that things will be the same again, but I wonder. Elsewhere, in some of the policy papers, one reads about making redeployment and area planning easier. The fact that the ESA will employ staff means that it can do it likes with them. With respect to area planning and redeployment, as is stated in the policy papers, it can do as it wishes. Those are two very serious issues.

4406. Sir Kenneth mentioned the two Education Bills. It makes no sense for one Bill to be passed and then a second Bill to be introduced containing details that we do not really know at present, one of which is probably area planning. If people are to agree to something, they must know what the consequences will be down the line. However, we do not know that. We are supposed to be living in a democracy and it is our right to see that.

4407. The review of public administration refers to streamlining, realising economies of scale, delivering services and shifting resources to the front line. However, we are talking only about a chief executive and a board. We know no details beyond that. Is there a plan? How much money will be saved? Who will the intermediate officers be?

4408. There are two other issues. I am uncomfortable with the whole idea of centralisation: centralisation does not bring freedom. The bottom line is that the voluntary principle works out as teachers giving up their spare time for nothing on Saturdays because they are committed to a school and to the children in it. If centralisation is introduced, whereby staff are not loyal to one school but are employed by someone out there in the ether, the voluntary principle is eroded. The voluntary principle comes right down to the ordinary teacher. It is a very serious issue. I have seen it at work: I have watched staff give up acres of their time, Saturday after Saturday, for nothing because they are committed to the school.

4409. Another thing that annoys me is duplicity in expression. As Sir Kenneth pointed out, on the one hand, the Bill says one thing, and on the other hand, the policy papers tell us: not to worry, we will look after it when the time comes. As the chairman of the AQE said, with what is down in print, we could well have a Minister who will not listen to what people say, and who will decide what he or she wants to do, and he or she may decide to stick to the letter of the law. Where will we be then? We will certainly not be in a democracy.

4410. The two main issues are governance and employment. The others are important, but those are the main two.

4411. Sir Kenneth Bloomfield: I will add a tiny footnote to that. It is interesting to look outside Northern Ireland to what is happening elsewhere. In England, there has been a growing sense that the education system has not been working well. An initiative taken some time ago set up the academies, which enjoy a good deal of autonomy in the education system. Recently, a letter appeared in a newspaper — I think it was published in ‘The Times’ — signed by people associated with umpteen of those academies, which said that all the time they were subject to a creeping process of control.

4412. I entered education from the other end, in a sense. I chaired the Northern Ireland Higher Education Council for a number of years, which is the body that deals with the universities. Think of the uproar that there would be if the state were to decree that all university lecturers are essentially employees of a state organ. There would be outrage. Now we are saying, in effect, that all teaching staff throughout Northern Ireland will be the employees of a state organ. Voluntarism is a very important principle in a free society.

4413. Mr Roy Lilley (Association for Quality Education): I will enlarge on one point that Sir Kenneth made in his opening remarks. One of our difficulties may be described as an issue of credibility.

4414. That is where we contrast statements that have been made, in the public record, by the Minister and officials with the text of the draft Bill.

4415. I will give an example. The Minister, in a letter to the chairman of the GBA, emphasised that it was important that the powers of governors would continue to touch on staff recruitment, staff complements and dismissals. At the end of the day, however, the individual’s contract of employment will not be with the board of governors but with the ESA. It is, therefore, difficult to rationalise how the power of dismissal will rest with the board of governors when the contract will be with the ESA.

4416. The Department, as I understand it, in setting out the justification for creating the ESA mentions that a single employer will raise standards. The bases for that claim are that it would be easier for staff to be seconded between schools, professional development would be facilitated by the ability to give teachers placements in different schools, and better workforce planning would be easier to implement. All of those indicate a centralisation of control rather than a spread of authority. For all those reasons, the actuality seems to run contrary to the assertion.

4417. The Chairperson: The more that those issues have been discussed in recent weeks and months, the more even members of the Committee become embroiled in what seems to be a legal minefield with regard to interpretation. We take the point that what is being said about the proposed outcome of the Bill does not seem to be reflected in the detail of the Bill. Therefore, people from a variety of education stakeholder groups are very concerned that the letter of the law does not represent how it will work in practice.

4418. Let us relate that to the current legislation that governs schools. The scheme of management that is operated in voluntary grammar schools has to be submitted to the Department. Does the Department currently have the power to intervene and to amend that scheme of management?

4419. Sir Kenneth Bloomfield: I have been chairman of the board of governors of the Royal Belfast Academical Institution for a number of years, and I cannot recall that occurring. I, too, would need legal advice to appreciate what powers the Department has. In practice, there has never been any attempt in my experience — and I have been a governor at my school for more years than I can remember — to alter, criticise or amend our scheme of management.

4420. Mr Young: That is a legal issue, and it is hard to pin down. I do not have a particularly legal mind, but the terms of the Bill seem to suggest an earlier intervention than exists at present. Instead of working with people a bit longer to sort out a problem, the Bill seems to suggest that the authority will come in at a much earlier stage than should be the case. Like Sir Kenneth, I do not remember any intervention under the present system.

4421. Sir Kenneth Bloomfield: I want to make a general point. I rest here on the letter that the Minister herself addressed to me on 10 March. It was, I may say, a very civil and helpful letter. However, it includes one revealing sentence. The Minister says that:

“I understand that the detail of how these arrangements will work in practice has still to be developed and articulated fully".

4422. We are talking about arrangements that could have a profound impact on the way in which our schools are run. However, we are being asked to give a blank cheque in a situation in which the Minister herself says:

“the detail of how these arrangements will work in practice has still to be developed and articulated fully".

4423. Needless to say, we would like it to be articulated fully before anybody makes a final judgement.

4424. The Chairperson: We would be happy if that correspondence could be copied to the Committee. That would be helpful. Later in today’s Committee meeting, we will begin a stocktake of all that has been said about the Education Bill up until now by people who have come before the Committee and by the Department. We will try to crystallise some of that today, because we are at a stage when we need to see the amendments that have been proposed by the Department and the Minister. Those amendments have been alluded to, but we have not seen them. The duty of the Committee is to scrutinise the Department, not to make policy on its behalf.

4425. Sir Kenneth Bloomfield: The cardinal issue is the distinction between assurances of how the process will work in practice and what the law says. What will the law allow in a hypothetical circumstance in which one Minister may take a different view to another Minister? The law is the ultimate guideline. We are given temporary assurances about how the Department and the Minister foresee or do not foresee the process operating, and departmental officials tell us that the aim is maximum autonomy. However, on the face of it, the legislation is saying that the control of this, that and the other will, ultimately, rest with the ESA. That is not reassuring. The details of how the process will work are not available to us, and we are supposed to accept that and tell the Minister to go ahead with her plans.

4426. The Chairperson: In your submission, you refer to the public schools in Edmonton in Canada as an example of good practice. How would the system of governance that exists there benefit the system in Northern Ireland?

4427. Mr Young: I can speak about it generally. As I understand it, they go a bit further than we might want to go. They free up the curriculum considerably and leave the individual institutions with a choice to tailor and measure the curriculum according to their needs. Canada is a big country, and its problems are different to ours. We may not want to free up the curriculum totally, but that system gives schools more freedom. It seems that they have widened out what the voluntary grammar schools experience — they are given that wee bit more freedom. That is the sort of thing that we would not want to keep to ourselves; we would prefer it if that were shared with other schools.

4428. I know that some small, rural primary schools may say that they do not have the governors and so on to take on board greater freedom such as that provided in Edmonton, but many schools would benefit from it. I have reservations about freeing up the curriculum completely, but freedom to act as voluntary schools do here is, in practice, existing in a much wider way.

4429. Sir Kenneth Bloomfield: In all fairness, one must say that education and library boards are supportive and helpful to schools in areas in which they have expertise that is not always available in schools. For instance, particular expertise is required for difficult disciplinary cases. However, there is a distinction between a school opting in and availing itself of a body that says that it is on hand to provide help and advice if required, and having to accept decisions from a body when the school is perfectly capable of making those decisions itself.

4430. Mr Young: Another concern that follows on from what Sir Kenneth said is what the education and library boards are delivering at present. The Bill does not say all that much about it, but I want to know the detail of what will happen at the levels below those of the chief executive and the board. What will happen there? How will services be delivered to rural areas? How far will centralisation be taken? What will people way beyond the centre get from the changes? Will support be close at hand for them, or must they rely on delivery from the centre? We all know that centralising or unifying of power in one area can disadvantage those who are at more of a distance. That sort of nitty-gritty detail must be worked out.

4431. The Chairperson: The Department has given the Committee a response to your submission, and that will be made available to you.

4432. Sir Kenneth Bloomfield: It is a pity that we do not have it now, is it not?

4433. The Chairperson: Yes, some other stakeholders have expressed concern about that. However, the association will have the Department’s response today, which states:

“The Department emphasises that the ESA will be a single organisation, but with a strong and significant local presence."

4434. We still do not know what that presence involves; the Committee has been making representations and asking questions on that.

4435. In its submission, the association states that it should be possible to change or amend the appropriate clauses in order to allow schools to assume responsibility for their own employment matters, should they wish to do so. If amended, could the Bill provide for an organisation to act as paymaster general for Northern Ireland’s education service yet at the same time allow schools to have maximised supported local autonomy? Is that possible?

4436. Sir Kenneth Bloomfield: The wording of the present Bill does not provide for that. In order to move in that direction, the Bill must be amended.

4437. Of course, it is sensible to have authorities that give general guidance on such issues. It is important to be able to consult specialised organisations that have an expertise that may be lacking elsewhere. I am very conscious that schools’ boards of governors vary a great deal. Our school is lucky to have a board made up, mainly but not entirely, of former pupils. We have successful lawyers, businessmen and so on; I hesitate to say successful bankers, because that is a term that is no longer used. We have extraordinarily competent individuals on our board.

4438. On the other hand, my wife sat on the board of an integrated primary school in Bangor for a spell, and, frankly, that board was not made up of a group of great experts. They struggled a bit with some of the issues with which they were confronted. Therefore, I am in favour of letting schools get on and do the things that they are competent to do, although it is a thoroughly good idea for them to have access to a genuinely supportive advisory organisation. The system needs that.

4439. Mr Young: An example of one element of the freedom that voluntary grammars have that controlled schools do not is over the appointment of staff. The process is so much shorter in a voluntary grammar school; an interview is held and a decision is taken. I understand that with controlled or maintained schools, names are suggested and sent to the board and then, perhaps a month or six weeks later, a decision might be made, and possibly even changed. In times like these when high-quality staff are being sought, that puts some schools at a great disadvantage. Voluntary grammar schools have that freedom, and I would like to see it enjoyed elsewhere. A judgement by a board of governors should be accepted without having to be confirmed by anybody else.

4440. If voluntary grammar schools can currently exist within the control of the paymaster — and if that approach seems to work well and the schools are accountable, and so on — why can that arrangement not work on a wider basis? In answer to your question, I think that it can be done. However, the Department’s policy paper seven states that:

“For voluntary grammar and grant-maintained integrated schools, the decision to separate the employing authority and the employer means, in effect, the transfer of the employing authority functions from Boards of Governors to the ESA."

4441. That is what the Bill proposes to do. If that happens, there will not be the sort of arrangement that I described.

4442. Mr Elliott: Thank you very much for your presentation. I want to pick up on something that the Chairperson said. I was going to leave it until the end but I will raise it now because he touched on it. He mentioned that the Department’s response to the AQE paper — and I am sorry that the witnesses do not have a copy — states that:

“The Department emphasises that the ESA will be a single organisation, but with a strong and significant local presence."

It also states that front-line support services:

“will continue to be provided locally, and this will be the major factor in determining the structure of the organisation at local level."

4443. I have difficulty with the fact that that is not written into the Bill. If we could come up with some sort of arrangement, how would you see that written into the Bill? If that provision is to exist, it is vital that it is included in the Bill.

4444. Sir Kenneth Bloomfield: I come back to the wording that the Minister used in her letter to me, and I will quote again:

“the detail of how these arrangements will work in practice has still to be developed and articulated fully."

4445. In a longish life, one inevitably makes parallels between one situation and another. I was around when the Housing Executive was first set up. As the Committee will know, there had been numerous housing authorities, but the Housing Executive was established as Northern Ireland’s single housing authority. The idea was to have a functional organisation with a director of development, a director of finance, and so on. As time went by, it became clear that there was not enough stress on localism. A matrix organisation had to develop, in which there were regional lines of responsibility as well as functional lines.

4446. The Committee should consider — not just in relation to this Bill, but more generally — the different situations in which schools are placed. Even in the grammar sector, for instance, the situation that schools in greater Belfast face is completely different from the situation that grammar schools in provincial areas face.

4447. The answer is that one would need to know a great deal more about the issue. It is almost as if one goes to an art gallery and El Greco has just given the outline but has not put in any of the pigment. It is very difficult to judge the picture until one has all the details. I am not suggesting that El Greco wrote this paper.

4448. Mr Young: I do not have a legal mind, but the issue is how the matter is included in the Bill. The Bill refers to the chief executive, and so on. It may be possible to include something in that clause about the other layers.

4449. Mr Elliott: Employment issues have been mentioned quite a bit by a number of delegations. Would it be useful if some local autonomy was given to some sort of regional board that operates outside of the ESA?

4450. Sir Kenneth Bloomfield: We would find the idea of surrendering our powers to a regional board no more appealing than surrendering them to a provincial board.

4451. Mr Elliott: I was talking about a regional board for areas but also in other spheres. For example, the CCMS could have a regional board of its own, as could the voluntary grammar schools.

4452. Sir Kenneth Bloomfield: I come back to the fundamental point. The CCMS has a certain sort of relationship with its schools, and the education and library boards have a certain sort of relationship with their schools. A question arises as to whether, after amalgamation, the new single body will need to have a radically different relationship with its schools than the separate bodies had with them. Our answer is that it will not. Rationalising the system does not necessarily mean that power must be centralised. In fact, one must be even more careful when centralising authority. As a democrat, I am always worried about powerful centralised bodies. I do not like them very much.

4453. Mr Elliott: The Department’s response to the AQE paper states that:

“the Association appears to have misunderstood the nature of the relationship between the ESA and boards of governors".

4454. Personally, I do not think that that is the case. The Department must separate those matters in order to make them absolutely clear. I suppose that I am looking for suggestions from you that might help us in our deliberations on how to resolve the problem.

4455. Sir Kenneth Bloomfield: Again, I beg you to look carefully at the specific amendments that were suggested by the GBA. The GBA represents a wide range of schools, and I know that it has taken serious, heavyweight legal advice, as, I might say, has the AQE, unsurprisingly. The GBA has made specific suggestions about how the Bill might be clarified in order to dismiss some of its fears. We support what it is saying, and that is why we have not brought forward our own amendments — there is no point in having two sets of lawyers suggesting various bits of wording. We are quite happy with the GBA’s suggested wording.

4456. Mr Young: We are also concerned about the emphasis that is being placed on having community-based governors who must live and work in the area. We consider that to be a very restrictive requirement. If a school wants to be blessed with a board of governors that has a variety of expertise, the board should not just be linked to the local community — its membership should be widened out. For example, a past pupil who is committed to a school might live a distance away from it but be prepared to give up their time to travel to that school to share their expertise. Therefore, we have some concerns about the community aspect.

4457. Mr Lunn: Before asking about your concerns about the employing authority provision, I would like to find out a bit more about the system in Edmonton. I am not aware of the specific system there; is it different to the one in Toronto, Montreal or Buffalo? Why did you point out Edmonton?

4458. Sir Kenneth Bloomfield: Because it provides grounds for a visit by the Committee to the Dominion of Canada. [Laughter.]

4459. Mr Young: The key difference is that schools there are given greater freedom.

4460. Mr Lunn: Does that apply to the whole of Canada?

4461. Mr Young: No, it is specific to that area.

4462. Mr Lunn: Are you saying that the rest of Canada, about 95%, is wrong?

4463. Mr Young: No, not at all; we think that that extra freedom is a good thing, and it seems to be working well. People respond to and enjoy it. Again, it comes down to the notion of the voluntary principle and to loyalty.

4464. Mr Lunn: I understand why you advocate it — that is what you are about, and I respect that — but I wonder why the rest of Canada and the wider world have not adopted the same attitude.

4465. Mr Young: It is working quite well there.

4466. Sir Kenneth Bloomfield: The wider UK does not do all the sensible things that we in Northern Ireland do.

4467. Mr Lunn: Your organisation is not the first to express concerns about the employer role, and some of those organisations would not necessarily agree with you on other matters. So, fair enough, it is a concern. However, the advice that we get from the Department is at odds with your view. When discussing clause 8(2), the Department always points out that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

4468. To me, that is pretty clear. The Department emphasises that it will be entirely for the boards of governors to make decisions on staff complement, discipline, suspension and dismissal. Decision-making authority will be delegated to the boards of governors. What is your problem with that?

4469. Sir Kenneth Bloomfield: Delegation is a quite an interesting word, because what is delegated can be “undelegated". That emphasises the wisdom of what I understand the Chairman to be saying, which is that the Committee will seek its own legal advice on some of those issues. You can explain the wording to your heart’s content, but it must be established what, in the last resort, the wording in the Bill means. Setting aside the questions of what is intended or what will be delegated, what does the Bill actually say?

4470. Mr Lilley: If the powers of the boards of governors are to be prescribed in the scheme of management, decisions would only be able to be taken in accordance with that scheme, which would be approved by the ESA. Why, therefore, would the ESA, in any event, fail to agree to something that had been done within the rules that it prescribed?

4471. Mr Lunn: That brings me back to the Department’s line that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors".

4472. To me, that seems explicit.

4473. Sir Kenneth Bloomfield: Who will decide whether the decision is proper?

4474. Mr Lunn: I presume that it means “proper" in a legal sense.

4475. Sir Kenneth Bloomfield: The ESA will decide on whether the decision is proper.

4476. Mr Lunn: I do not think that that is the case.

4477. I do have some problems with the Education Bill. One of those is that it constantly harks back to previous Orders, which I am not old enough to remember. However, the Department would say that the existing law, the Education (Northern Ireland) Order 1998, demonstrates that those principles are already part of education law and that nothing is being changed in that regard.

4478. Sir Kenneth Bloomfield: All I can say is that many well-advised schools do not believe that to be the case. We are at an impasse. It would help all of us to have definitive legal advice on what the law says. It would be helpful if the lacunae in the detail of how the arrangements are to operate in practice were to be filled in and if we could be reassured that the legislation, including the further legislation that is not yet before us, represents a coherent scheme for education in Northern Ireland. We are not in that position.

4479. The Chairperson: Over the past weeks and months, we have sought legal advice on the definition of the employer and of the employing authority. We also have the submission on the legal representation that was made when the GBA came before the Committee. There is always a risk of having different legal interpretations, and one can get into a legal minefield. We have endeavoured to ensure that the Committee has the information. Ultimately, we will reach the stage at which the Committee has to make decisions and agree on those issues.

4480. We have taken legal opinion from the GBA, and we have sought and received our own legal advice. Today, we will put to the Department the gaps and the issues that were raised and ask about the amendments that it is considering. We will see whether, if all of that were brought together, it would marry up whether it would be capable of bridging the current gap that exists between the Department’s view of there being a misunderstanding and the view that there is a misinterpretation.

4481. You can see the minefield in which we are. That is why the Committee took what I believe was the right decision not to rush our consideration of the Bill, as even the Department has proposed amendments to it. We cannot be more definitive, as we are still working our way through the process.

4482. Mr Lunn: You expressed serious concerns about the Bill’s provisions for the appointment of governors, although the Department tells the Committee that your concerns are unfounded and that the Bill will result in little if any change. You will, as the Chairperson said, get the Department’s response shortly. Sir Ken spoke about an impasse, and there is a clear difference of opinion.

4483. Sir Kenneth Bloomfield: We look forward to the Department’s response with eager anticipation, but with a degree of scepticism.

4484. Mr Young: Clarity is important. We have a wonderful opportunity to move into the future by taking advice from places whose systems work well and by introducing those systems here. Mr Lunn mentioned the phrase “the voluntary principle", but compare that phrase against so much else in the Bill. It is double language, and, as the Chairperson said, we do not know what it means. The thrust of the Bill seems to be to tighten and constrict, which is different from the Department’s response.

4485. Sir Kenneth Bloomfield: I want to echo what Billy said about the nature of boards of governors, because it reflects something about which I feel strongly: a school is an organism rather than a mechanism. Human relationships are very important — a family may have links with a school going back many years. Although a senior member of a family may live some miles from a school, he may feel that he owes much to it and may want to make a contribution to it. He may have professional skills that he could bring to the management of that school, and it would be a tragedy if we said to him: “We are terribly sorry, but you are not as aware of the area as some others." Schools are organisms that have adjusted over a heck of a long time, and most have stood the test of time pretty well.

4486. Mr Lunn: Let me give you a flavour of what you will hear from the Department. It says that there are no powers in the Bill for the ESA to remove or restrain a board of governors. That is the direct opposite of what you are alleging.

4487. Sir Kenneth Bloomfield: Except that ultimate authority over the scheme of governance seems to rest with the ESA; therefore, it can create boards of governors that will, ultimately, bow to what it wants them to do.

4488. Mr Lunn: The Department also says that the composition of boards of governors will not change and that the proportion of appointments made by the ESA will be the same as those made by the education and library boards at present.

4489. Sir Kenneth Bloomfield: It would be much easier for us in preparing our evidence if we were aware before we arrived what the Department had to say in response to our submission. It seems extraordinary that the Committee has advice from the Department before we appear and that after we appear departmental officials appear again and shoot down what we say. That is slightly rum.

4490. Mr Lunn: I am giving you an opportunity to expand on what is in your submission paper and to refute what the Department says. The issue is about more than differences of emphasis.

4491. Sir Kenneth Bloomfield: When we see the Department’s paper we will scrutinise it with our usual care, and we will say what we feel we ought to say about it.

4492. The Chairperson: May I clarify the issue, Sir Ken? The procedure has been that the Department’s paper is not made available to other organisations until the Department has submitted it to the Committee and its officials have appeared before the Committee; it is then made available to those organisations, and, at that stage, you will have every right to respond. We used to call them rebuttals from the Department; however, we have since given them the courtesy of calling them responses.

4493. Sir Kenneth Bloomfield: Friendly rebuttals.

4494. The Chairperson: You can use your own discretion. You will be fully entitled to come back to the Committee with a written response on the issues that are raised in the paper that will be given to you.

4495. Sir Kenneth Bloomfield: It is conceivable that may do that, Chairman.

4496. Mrs M Bradley: In your submission you state that

“We believe that the principles underpinning the ESA are not based upon education but upon control. Rural areas may particularly suffer from this centralisation."

4497. Would you elaborate on what you mean by control and on how rural areas will be worse off?

4498. Sir Kenneth Bloomfield: Whatever one’s reading of the Bill, it gives to a centralised and centralising authority more power over the whole system than has previously been exercised by the pre-existing bodies. It is a bad thing if government in any country has too fine and ultimate a grasp on the whole system of education. In principle, I am antipathetic to that.

4499. There are guidelines, rules and procedures, and all of us must follow the law. The ESA will be the employer; however, school governors who deal with employment practices in their school must have regard to all the provisions of the law relating to employment. There is no sense in which we are independent of the law; we all operate within it.

4500. Our organisation is irritated to hear itself described as “breakaway schools": we do not want to break away from anything. We are part of the state system, and we think that Northern Ireland has a great advantage over England, where far too many schools are not part of the state system. We will conform to the law, whatever the law may be.

4501. Mr Young: The Chairman quoted a phrase to the effect that the ESA, as a regional organisation, will have a strong local presence and will be able to focus on local delivery. If that were true, it would be a very good thing; however, it must be clearly defined. We are not talking just about rural areas; we also mean disadvantaged areas in the city. If the ESA is to be a regional organisation with a strong local presence and a focus on local delivery — and perhaps exactly what that means will be explained to us in detail — it would be good for rural schools that feel that no one cares about what happens to them. It would be tremendous if they had a mechanism to draw on advice from some source in their area.

4502. Moreover, it would be good if schools in disadvantaged city areas — where, as you know, there are problems with standards of literacy and numeracy — were aware of something being done, of a local presence and local delivery, with smaller class sizes, greater support and more teachers. That is the sort of thing that we envisage; however, we would like to see the details written down somewhere so that we know exactly what is involved.

4503. This is supposed to be streamlining by replacing five organisations with one. How will it be planned? Will it save money? Will it deliver a better local service? We have a glorious opportunity, and we do not want to be nailed to the past.

4504. Mrs M Bradley: Have you confidence in the ESA to deliver an enhanced service?

4505. Mr Young: I would need to see the details. I worry about centralisation. Centralising education has not worked in other places; it is usually more expensive and less efficient. It could deliver an enhanced service, but experience shows that it must be approached very carefully.

4506. Mr McCausland: Thank you for your presentation. I want to make a general observation, followed by a specific question. You made the point that we need to know a good deal more. That is why we said that scrutiny of the first Bill would continue until September so that if the other Bill appears in June there will be an overlap of several months. We would be buying a pig in a poke if we bought into the first Bill without knowing what is in the second.

4507. It is a bad way of proceeding; nevertheless, we are lumbered with it. The best that we can do is to ensure that there is substantial overlap so that we know exactly what the second Bill contains before we make any decision on the first one.

4508. Sir Kenneth Bloomfield: That is reassuring.

4509. Mr McCausland: My question is on a specific matter about which I am not sure. Do education authorities in England employ the staff of city academies?

4510. Sir Kenneth Bloomfield: The letter in the press said that local education authorities exert more and more control over city academies, which were set up with the understanding that they would be relatively free of such control.

4511. There is obviously a political struggle in the Labour Party between new Labour — Blairite Labour — which wants to move in that direction, and the more traditional, union-powered Labour, which favours more control and is reluctant to see anything escape the power and control of the local education authority.

4512. We are contemplating the creation of, arguably, the largest and most powerful single education body in western Europe; therefore, we must be extremely careful about its scope and functions.

4513. Mr Young: A crucial aspect of its work will be to turn out high-quality teachers, and, across the board, Northern Ireland is doing much better than elsewhere in that regard. However, although, we are not doing too badly compared with elsewhere, physics is down yet again and chemistry is struggling.

4514. When parents consider the future of their children they must see an education system that allows their children to develop. That is the crux of the matter. Northern Ireland’s future depends on good teachers — particularly of the sciences. We must produce outstanding teachers in order to lift the Province from where it sits on the edge of Europe. Will we produce a system for the future about which people can be excited because of the freedom that being part of it gives them? That is the foundation of the voluntary principle.

4515. The Chairperson: Are some elements that you want to retain not an administrative burden on the schools that you govern? Would a central organisation that took on much of the administration not leave you with more freedom to get on with providing education? Do you envisage any administrative arrangements that are undertaken by voluntary grammar schools being shelved off to the ESA?

4516. Mr Young: I do not envisage schools’ administrative arrangements being taken over by the ESA; I believe that voluntary grammar schools are happy to continue with what they do at present.

4517. I was thinking more about the freedom of teachers who want to get on with teaching and be rid form-filling and such. Teaching should be an area in which teachers can express themselves and in which they can take their subject to the highest level. It is about a physics graduate who has a first-class or 2:1 honours degree going into a form-one classroom and being able to grab the children’s attention and enthuse them.

4518. I witnessed that in my previous life as a headmaster when I observed the school’s head of maths teaching a form-one class. He had the children’s wrapt attention. In order to teach them the basic elements of calculus, he had taken the lesson beyond the curriculum, and the children were captivated.

4519. The future of education will be in having a system that will attract top-class graduates who will grab young people. It is not about grabbing the sixth form, particularly; it is about capturing young people’s attention and exciting them from form one. That is what is required for the education system of the future; teachers should have the freedom to say, “Och, let the curriculum go; let me go out there and tell them what science is all about."

4520. Sir Kenneth Bloomfield: The idea of opting in rather than opting out is appealing. I come back to the rubric that was regularly presented to us at conferences by Gavin Boyd and others like him who said that they were there to help. There is no objection to a school’s representatives saying that the new process is a chore. They might say that, due to modest resources and an inexperienced board of governors that is not very skilled, they would like someone else to run the school for them. We are saying that there are people who are perfectly capable of doing it and that therefore they should be allowed to get on with it.

4521. The Chairperson: If the Bill were amended to allow that to happen — which, if I remember correctly, was what the GBA wanted — would you see room for manoeuvre?

4522. Sir Kenneth Bloomfield: That makes a great deal of sense. We talk about schools as if one school was like another; however, they are terrifically different. All schools, from the wee primary school in the countryside to a big city-centre voluntary grammar school, are different. Some are perfectly capable of looking after themselves. Individuals and societies should look after themselves wherever possible; if they cannot, however, there should be a safety net or a state mechanism to take away the burden when they want to shed it.

4523. Mrs O’Neill: I want to return to employment arrangements and schemes and the points that Trevor Lunn raised. Clause 8(2) and 8(3) do not give the ESA the power to reject any properly taken decision of a board of governors. Their purpose is to permit the ESA to ask the board of governors to reconsider a matter if — and only if — the board of governors has not followed its own procedures. That is clear.

4524. One cannot take the Education Bill in isolation; it must be considered alongside existing law. Trevor referred to the powers that schedule 2 of the Education Order 1998 gives boards of governors in relation to staff complement, discipline, suspension and dismissal. They are all set out in that schedule.

4525. William said that the Bill suggested an earlier intervention than before. Where do you see that in the Bill? I do not see that.

4526. Mr Young: I do not have the Bill before me. I cannot remember the relevant clauses, but, when reading the Bill, I got the impression that the controlling authority would intervene earlier than it does now. I will try to find the relevant clause, but that was the tone of it.

4527. I agree with you. It is worrying that, on one hand, the phrase that Mrs O’Neill mentioned suggests that schools will be allowed to opt out if they disagree with the ESA; other clauses suggest the opposite. One of the worrying aspects of the Bill is its duplicity of terms. That duplicity is evident not only when one compares the Bill with the policy papers, but when one reads the Bill. It is not quite doublespeak, but on one the hand it talks about control, and on the other it contains the phrase that you mentioned. Where does the truth lie? That is my worry.

4528. I know that the Committee has struggled with the legal issues; I found them complex. I am giving you a honest answer. When I read that phrase against other phrases, I am not sure which will win the debate — the ESA or the board of governors. There is a duplicity of intent in the Bill. I cannot put my finger on it, but that is why it needs to be defined and made clearer.

4529. Mrs O’Neill: I can only go on what I have read, and what I have read is clear. I do not think that clause 8(2) and 8(3) gives the ESA the powers that you feel it does.

4530. Mr O’Dowd: I apologise for being late and for missing the first part of your presentation. I have read the briefing paper, and I will read the Hansard report of this session to catch up on any comments that I missed.

4531. First, what exactly is the “voluntary principle"?

4532. Sir Kenneth Bloomfield: It means that individuals and corporate bodies should look after themselves, in so far as that is possible without harming other people or being contrary to the public good; it is almost like the notion of subsidiarity in the European Community. If someone can do something that does not impinge on the public interest, he or she should be allowed to get on with it and not be subject to the governing authority of an organisation at a higher level.

4533. Mr O’Dowd: I have no difficulty with that interpretation; however, when the principle has been debated in this context it has sounded more like independence. A group of schools wishes to have complete independence from the Department of Education and any overview body, and yet withal they are prepared to accept £250,000 a year in funds.

4534. Sir Kenneth Bloomfield: I am sorry that that is your impression. Before you arrived, I said that I regret very much people describing us as rebel or breakaway schools: we are part of the state system, and most of our schools receive capital and current support. As it happens, the Royal Belfast Academical Institution receives only current support to see that children are educated. We must respond to the requirements of the curriculum as prescribed by the state, and we must also follow the salary-negotiating arrangements that apply to all schools.

4535. The notion that we are independent of the state is not true. Nevertheless, there is a place in society for organisations that have a long history and a profound ethos of a different character that have contributed enormously to society over the years. We are antipathetic to the excessive centralisation of state power that governs every aspect of our lives. I find that objectionable.

4536. Mr O’Dowd: I would not take offence at being called a rebel. [Laughter.]

4537. Sir Kenneth Bloomfield: We will have to be very careful about the terms that we use.

4538. Mr O’Dowd: Surely no board of governors could implement a ruling that was profoundly illegal.

4539. Sir Kenneth Bloomfield: Absolutely not.

4540. Mr O’Dowd: The Bill says that the ESA will take on the role of the CCMS in the maintained sector and the role of the boards in the controlled sector and that it will be duty-bound to inform a board if it goes outside the remit of the law.

4541. Sir Kenneth Bloomfield: Consider employment: every teacher, groundsman, janitor and dinner lady in the Province will be employed by this extraordinarily powerful state-sponsored organisation. Political parties, above all, are keen to do their own thing and preserve their ethos, whatever that may be, and so are schools.

4542. As I said earlier, this is rather a rum state of affairs, given that everyone who works for a school, such as the Royal Belfast Academical Institution, which still owns its buildings, will not be an employee of the school but of the education and skills authority. That is what the Bill will mean. That is not necessary and will not advance the public interest.

4543. Mr O’Dowd: Is it not a case of he who pays the piper calling the tune?

4544. Sir Ken Bloomfield: Are you arguing that everything that the state supports should be run by the state? Where would that end? Will the state nationalise the universities? Will all university lecturers and professors be employees of a state body? You would face a fair old hurroosh if you went that far.

4545. Mr O’Dowd: There have been instances in which staff in the education sector have not been treated equitably with regard to their pay and conditions; that was highlighted most dramatically by the long and heated classroom assistants’ dispute, after which a resolution was reached. Some people, particularly those in the grammar-school sector, were left outside that resolution. Several million pounds had to be taken from the public purse to ensure that staff in the grammar-school sector were correctly paid. A single employing authority would protect the employment terms and conditions of staff.

4546. Sir Ken Bloomfield: I wish that I had some members of our staff with me. Staff terms and conditions are negotiated at the level above that of an individual school, and our school observes those negotiated agreements. The notion that we all go off into the wild blue yonder is very wide of the mark. We are caught up in negotiating arrangements, and we adhere to the state’s prescription of curricular responsibilities, and our schools are inspected by the schools inspectorate. That is as it should be.

4547. Of course we are conscious that our activities are largely funded by the state. The question is whether what we do with that funding is in the public interest, and we think that it is. Since China and India are turning out PhDs by the thousand, it is vital to have schools in whose ethos academic excellence features as a criterion. We are not talking about having a homogenous group of schools; we are talking about schools that are very different. Difference is a good thing. Let us not go for uniformity, for state control of everything and for everything being identical. That is the antithesis of freedom in society.

4548. Mr Young: Earlier, I talked about how the voluntary principle goes right down to the individual member of staff and about loyalty to an institution. The voluntary principle gets so much more out of staff. For 37 years, I took games every Saturday morning, and I was not paid for it. During the cricket season, I was involved from 10.00 am until 4.00 pm or 5.00 pm on Saturdays. I did that for the love of the game, the love of the young people, and because of my love and loyalty to the school. I am no martyr for doing that; I enjoyed it. Many staff volunteer; they simply give of their time. That is what one gets from staff as a result of the voluntary principle.

4549. Mrs O’Neill talked about clause 8(2), and it is true that that provision is in the Bill. However, clause 5(5) states that:

“An employment scheme for a school submitted to ESA under subsection (1)(b) shall not come into force until it has been approved by ESA or until such date as ESA may, in giving its approval, specify."

4550. On the one hand, the ESA is to give effect to what a school will do in accordance with such an employment scheme; on the other, it will control what the scheme is. That is an illustration of how one part of the Bill looks OK while another part does not. I am sorry, Mr O’Dowd; I did not mean to cut across you.

4551. Mr O’Dowd: No, it is fine.

4552. Sir Kenneth Bloomfield: I wish to pursue the idea of the voluntary principle a bit further. I have been reading books that are set in the old Soviet Union, about which I am very interested. After the Bolshevik revolution, the Soviets decided that individual farms were a thoroughly bad idea and should be replaced with collective farms. It was decided that the state would run agriculture.

4553. Production fell to the lowest imaginable level. People on state farms had no sense of belonging, no real identity and that approach eventually had to be abandoned. The loyalty of people in an understandable organisation of understandable dimensions is not to be underrated.

4554. The people in my school work their guts out, not just to deliver the prescribed curriculum, but to give the kids the richest possible experience in all sorts of ways. Would they feel the same if they were the employees of some great amorphous organisation up there in the stratosphere? I do not know. That is a big risk to contemplate.

4555. Mr O’Dowd: That issue has been teased out at previous Committee meetings. In my area, I am aware of schools under CCMS control in which staff spend their weekends and evenings, without pay, organising all sorts of activities with children. Those teachers’ loyalty is, first and foremost, to their vocation, which is education, and they are loyal to their pupils and schools. That loyalty is not determined by whether they work for the voluntary sector. I have no doubt that similar work is going on in voluntary grammars. Whether in the voluntary, controlled or maintained sectors, teachers are loyal to their vocations. Therefore, I am not convinced by Sir Kenneth’s argument.

4556. I have read and re-read the reference in the association’s presentation to governors’ appointments — sometimes even politicians put themselves in other people’s shoes to see where they are coming from. The submission states:

“The schools which AQE represents, have for years been “melting-pots", attracting pupils from wide areas, often across frontiers of division. Governors drawn from a local community will provide too parochial and narrow a view."

4557. I may be narrow-minded, but that tells me that the AQE does not want governors from the New Lodge or the Shankill in its schools.

4558. Sir Kenneth Bloomfield: That is your interpretation. We have rehearsed that issue. In my faltering way, I tried to say that good schools are organisms, not mechanisms. They rely very heavily on certain qualities. For instance, if four generations of a family have been involved with a school, it is an important part of their life. The senior member of that family may now live 20 or 30 miles away from the school. He has expertise that he could, and wants to, bring to the board. Are we to say to that man or woman, “Sorry, we do not want you because you are from outside the area."?

4559. The Committee probably knows that I speak for a school that draws its pupils from an incredibly wide area over greater Belfast and beyond. That enriches the school and society, because the more that we rub up against people other than those who live in our immediate area, the better we are in many respects. Therefore, I make no apology for that.

4560. Mr Young: We are saying, yes, by all means support community governors, but do not limit us. As Sir Kenneth said, give the school the option to pick somebody a bit further afield if they have a gift that is needed on the board.

4561. Mr O’Dowd: I have no objections to that in principle. However, I am concerned that a family living at the front gates of your school would not be able to belong to your board of governors.

4562. Sir Kenneth Bloomfield: We are getting into the debate that we have been having for quite a long time about another issue. The notion that our school would not welcome people from, say, Sandy Row, is absolutely —

4563. Mr O’Dowd: Is anybody on your board of governors from Sandy Row?

4564. Sir Kenneth Bloomfield: Not as far as I know; however, there is nothing to bar somebody from Sandy Row becoming a member of the board of governors.

4565. Mr O’Dowd: I have no objection to a board of governors being drawn from a wider geographical area, but I believe that the success of any school is based on the community with which it deals and in which it works. For a school to become part of a community, it must represent that community, both through its pupil intake and its board of governors.

4566. Sir Kenneth Bloomfield: What is being advocated is a neighbourhood school. We are antipathetic to the idea of a neighbourhood school. We think that Northern Ireland is the last place in the world that should say, “This is your area; there you are and there you stay".

4567. Mr O’Dowd: I know, perhaps, where you are coming from in that we should have an involvement in our community but not at the expense of turning our backs to surrounding communities. They may be from a different community. I am not arguing —

4568. Sir Kenneth Bloomfield: Saying that we turned our back is a wonderful argument, but —

4569. Mr O’Dowd: I am not saying that you did, but Mr Young was arguing that your school is inclusive because it is diverse and draws governors from a broad area. There is an argument that society is breaking down; people close their front doors and their wider family and the community outside are no longer important. I am arguing that including people in every function of society, including in schools, will help to rebuild society and give people back their community spirit.

4570. Sir Kenneth Bloomfield: Let me tell you about the sort of people who sit on our board, and Billy may wish to say a few words about those who sit on his board. They largely went to public elementary schools, as they were called then, from all over Belfast, whether in the west or east. I would never have attended a grammar school if I had not been awarded a scholarship; my parents could not have afforded to send me to one. Those people went on to gather life experiences, which are useful to bring to the board table. Therefore, categorising people as elitist snobs simply because they have had a good education and done something with their lives seems a ridiculous view of the world. We are looking for people who are capable of running, in many cases, a big enterprise and who will be responsible for a multi-million-pound budget.

4571. Mr O’Dowd: Someone who manages a family budget of £70 a week is as important to society as someone who manages a budget of £20 million a week. In fact, single parents who have a family budget of £70 a week can bring the sort of understanding to education that is, perhaps, currently required.

4572. The Chairperson: I ask members to stick to asking questions rather than making statements, please, because what is being said about the voluntary principle can also be applied to the maintained sector. Bear in mind the presentations to the Committee from that sector, which said that it wants to act independently and to employ its own staff.

4573. Mr O’Dowd: I was trying to tease the issue out.

4574. The Chairperson: We must be fair and ensure that we do not pick on just one education sector.

4575. Sir Kenneth Bloomfield: We do not in the least mind being picked on; we are well used to it by now.

4576. Mr Young: The idea of community is interesting. The important issue is for schools to have governors who care about it. They do not have to live in the area, but they must care and have the required expertise to appreciate what is going on.

4577. I am immensely proud of the fact that the school in which I taught for 40 years was to the fore in having both sides of the community living and working together. When I left, between 25% and 30% of the school were from the Catholic tradition. Young people who come to school together leave aside questions of whether they are from a Protestant or a Catholic background. Some of those children were from the local area and some were from a much wider area. Presently, two form 2 children travel from Glenarm — one is Protestant and one is Catholic — because they see a community of which they want to be a part. That stems from the school’s staff and the voluntary principle, and our school is not alone in that respect.

4578. Do not get me wrong, I am not saying that that is what every school should be aiming for. I am saying that my experience was of a community that cared; pupils put on their blazers and left aside everything else from outside. Many of those pupils had to cross interfaces. I remember people crossing interfaces during very troubled times because of what the school community could offer.

4579. Let us widen the matter beyond the idea of a community governor. We certainly need governors from the community, but they need not be from the local community. Give schools the chance to get people from a wider area than that. If they want to take people from the local community that is well and good, but let us not limit them to that. I agree that community involvement is important. However, I also agree with Sir Kenneth; the last thing Northern Ireland wants is a whole system of local schools. We want people to cross the barriers of the past and head into the future.

4580. Mr O’Dowd: I have one more question. What is the difference between the AQE and the GBA? I ask because we have received several submissions from different societies and groups, and I read them to try to establish what weight to put on them. Is the AQE a constituted body?

4581. Sir Kenneth Bloomfield: Initially, the AQE was a voluntary pressure group that represented governors, teachers and former pupils of schools. When 34 schools signed up to the idea of establishing a co-operative examination, we decided that we needed to create a corporate entity. AQE Limited is a company, of which I am chairman. It will be responsible for providing the examination. Of course, the examination is all that we will provide. The question of how the examination is used in relation to the admissions criteria will be a matter for the board of governors of each individual school.

4582. Mr O’Dowd: Are you a separate entity from the GBA?

4583. Sir Kenneth Bloomfield: At the start of the meeting I said that you may ask why we are here, given that many of our member schools are members of the GBA. I am on the executive committee of the GBA; I am aware of the evidence that the GBA submitted to the Committee, and I support it. The GBA recommended a number of amendments that it thinks will improve the Bill. We support the view that it expressed in those amendments.

4584. Again, you may ask why we are here, particularly given that, like many others, our school submitted its own evidence. The answer is simply that the main campaign that we have been fighting to retain academic selection is, in our minds, an attempt to preserve the ethos of our schools and the voluntary principle. Any ground that we gained in that particular struggle will be forfeited if, at the end of the day, all schools become just the creatures of a Government body. That is why we are here.

4585. Mr Lunn: I have some sympathy with the idea that the definition of a community governor as somebody who lives or works in the local community is too restrictive. If the definition made reference to catchment area, would it go some way towards satisfying you?

4586. Sir Kenneth Bloomfield: No, I would be antipathetic to that. You are talking about neighbourhood schools, and I do not like the idea of neighbourhood schools at all — they are a thoroughly bad idea. Schools should be entitled to take in people who want to attend the school for whatever reason, and who have shown that they have what it takes to flourish and be happy in the school.

4587. Mr Lunn: What is the local community in a place the size of Northern Ireland? Where does local community stop?

4588. Sir Kenneth Bloomfield: The idea of the community as a ghetto with a fence around it is quite unreal. Let me be totally frank: Lisburn is very lucky because it has some excellent grammar schools of the highest-possible quality. In many ways, it is very convenient for Protestant parents to get their child into Wallace High School or Friends’ School. However, they are not always able to do that, so another option could be our school. What is wrong with that? I think that there is nothing at all wrong with that. We are part of a melting pot of people who come from all sorts of different areas and circumstances. The last thing that we want to do is ghettoise Northern Ireland and pin people down to their locality and the schools there. That is a bad idea.

4589. Mr Lunn: I went to Billy’s school from Finaghy.

4590. Mr McCausland: That school has a lot to answer for.

4591. The Chairperson: OK, we do not want to start bringing out the school blazers.

4592. Mr Poots: I support what Sir Kenneth has just said about diversity. I was in that exact position. Two of my children attend grammar schools in Lisburn. One of my children had the option of going to the school of which Sir Kenneth is the chairman of the board of governors, and we took the option of sending him to a local secondary school. Those options were available to us as parents. For our family, we had the best choices and options available under the education system that we had.

4593. The Chairperson: We do not want a restrictive process that closes down every option, but a process that provides options and variety, whether in the choice of governors or parental choice of school. Ken, Billy and Roy, thank you very much.

4594. Mr Young: We have had a real sense that the Committee has been working very hard on this matter, and that you are doing your level best to find the right way ahead out of a very difficult situation. That has been obvious to people from the outside, and I am very grateful to you all for what you have been doing.

4595. Sir Kenneth Bloomfield: I, too, would like to thank the Committee.

4596. The Chairperson: I can assure you that the Committee will continue with that hard work.

4597. Mr Lilley: In the context of this morning’s discussion, my point is perhaps minor, but it is one that has, I understand, exercised the Committee. I am not a lawyer, but one of my legal friends told me that if the Bill is enacted on its present terms with the ESA as the employer, in the event of a dispute arising that has its genesis on the school campus, the school would not have an automatic right of appearing before any subsequent tribunal.

4598. If that interpretation is legally correct — and under the specific industrial tribunals Act, I think that that is indeed the case — would it not improve the legislation if it was made perfectly clear that in such circumstances the school would automatically have a right of representation? One cannot conceivably envisage all the potential circumstances on which a dispute that ends up before a tribunal would be based. I think, therefore, it would be preferable for there to be clarity from the outset.

4599. The Chairperson: Chris Stewart is here to represent the Department, and I think that he will answer that question. You are welcome to remain for that witness session.

4600. Mr Lilley: Unfortunately, I have an appointment and am unable to stay. However, I will read the response in due course.

4601. The Chairperson: The report will be in Hansard. Once again, thank you all for coming.

4602. Members, I must leave as I have another appointment that I must keep, but I will return afterwards. As you know, the Deputy Chairperson in unable to be here because of a family bereavement. Members, with your indulgence, can I suggest that, as has happened in the past, Nelson takes the Chair until I return. Are members agreed?

Members indicated assent.

(The Acting Chairperson
[Mr McCausland] in the Chair)

4603. The Acting Chairperson (Mr McCausland): I welcome the representatives of the Association of Northern Ireland Education and Library Boards (ANIELB): Alderman Roy Beggs, chairperson of the North Eastern Education and Library Board; Peter Duffy, chairperson of the Western Education and Library Board; Gary Haire, chairperson of the South Eastern Education and Library Board; and Hilary Sloan, chairperson of the education committee of the Belfast Education and Library Board.

4604. The association’s written submission on the Education Bill and summary of key points are included in members’ packs. It has also provided a response to the Department’s policy paper 20, which deals with ownership and representation of publicly owned schools.

4605. I invite the representatives of the association to give a short presentation outlining their key comments on the Education Bill. The Committee would appreciate it if you could keep that to 10 minutes. Members may then ask questions.

4606. Mr Gary Haire (Association of Northern Ireland Education and Library Boards): We are delighted to join the Committee and to make our presentation. As you said, we have already submitted written evidence, so I will summarise our general views. My colleagues will respond on specific issues that cause the association some concern.

4607. When the then Secretary of State, Peter Hain, announced in November 2005 that there would be a review of public administration, the association wrote to express, in broad, general terms, its support for the proposals to ensure better public service for local people through modern, accountable systems of administration that provide greater efficiency and effectiveness. Today, we find ourselves considering an Education Bill that has moved on and that bears little resemblance in character or substance to what was originally proposed or envisaged in the association’s perspective and understanding.

4608. Our support was based around the concept of an all-inclusive authority that could provide a world-class service for the benefit of the children and young people whom each of our respective boards serve on a daily basis. Through the comments we have read reported in Hansard, the association is aware that the Committee has been carefully scrutinising the Bill. We believe that there must be a more open debate on proper area-based, democratic and accountable structures that deliver real efficiencies in the system and target resources on the basis of objectively measured need.

4609. The association does not advocate maintenance of the status quo, but feels that any meaningful change should be predicated upon a rationale that is based on clear, concise and compelling evidence on educational best practice and economic robustness.

4610. The association recognises that our children and young people need to have an education system that will enhance their capability of developing into adults and forming a society renowned for its world-class knowledge economy and a workforce that is well-trained, educated and motivated, thereby providing economic growth to drive stability in the future.

4611. Already the system has seen significant improvement in educational outcomes over the years; those are not just due to our good education system, hard work and high-quality staff, but to external factors, too, not least what has happened in this House. Any proposed reform must not only continue to improve our educational outcomes but ensure a more coherent and holistic approach in the provision of children’s services. We believe that those should not be arbitrarily subject to departmental boundaries; rather we should offer a fully resourced and integrated service provision to our children and young people so that they can gain the best educational experience that we can offer.

4612. In considering the way forward, the association is of the view that it is important to understand any new structures in the context of the needs of the Northern Ireland community. We note that the Assembly has already committed to the overarching principles contained in the Bill by giving it a Second Stage, but we believe that the Committee can and must ensure that any new authority is all-inclusive and incorporates all sectors. That is not the situation at present, and the association has concerns that it appears that a number of the current bodies will be subsumed under the ESA while others will continue to exist, and, indeed, additional bodies are to be created. Hilary will respond to the Committee on that issue in a moment.

4613. The prolonged time frame since the commencement of the RPA process has placed immeasurable stress and strain on staff employed in the current system. That, coupled with the ongoing uncertainty as to when or whether the new authority will come into being, is having an increasingly detrimental effect on staff morale. Peter will expand on that point.

4614. We stress that it is vital to ensure that any proposed changes are right and proper, or, to quote the much-repeated phrase, “fit for purpose for the twenty-first century". Ultimately, they must be beneficial to the children and young people whom we serve and the staff for whom we are responsible.

4615. As we mentioned in our paper to the Committee, many of the clauses in the Bill are aspirational in nature and many questions still require clarification. Roy will speak of our concerns about boards of governors.

4616. Mr Roy Beggs Snr (Association of Northern Ireland Education and Library Boards): The association feels that there is a need for clarity from the Assembly and the Department of Education regarding local governance arrangements for the future. At present, boards of governors are composed of members who represent the education and library boards, transferors or trustees, parents, teachers and the school principal. The boards of some schools also contain representatives from the Department of Education. The responsibilities of a board of governors include: finances; public funds; private funds raised by parents and friends of the school; delivery of the curriculum; setting targets; admissions to the school; suspension and expulsion of pupils; employment of teaching and non-teaching staff; and employers’ functions, including staff discipline.

4617. The board of governors of a controlled school can invite an officer from the relevant education and library board to give guidance, and a board of governors in a maintained school can invite an officer from the CCMS to give guidance. However, any guidance offered to boards of governors may not be followed because of the close relationship between members of the board of governors and employees.

4618. Some members of a board of governors, through lack of confidence, insufficient knowledge of education and inadequate training, are reluctant to contribute in committee meetings. As a consequence, either a small number of members takes the lead in school management or the principal has the lead role. The association has concerns about how suitably qualified and skilled people will be recruited, retained and trained for the proposed new structures and responsibilities. Given that those positions are currently being advertised for the 2009-2013 period, will the people due to be appointed have been given a clear insight into what will be expected of them under any new authority in light of the legislation? Who will provide the necessary training and when?

4619. We have heard an unconfirmed report that only about 200 governors have reapplied to serve on boards. That would be extremely serious, because tens of thousands of governors are needed to cover all the schools in Northern Ireland. We are concerned about what training and support will be given to governors to enable them to discharge their responsibility for raising standards in their schools. Will the Department of Education, the Minister and the ESA endeavour to ensure that each board of governors contains the required mix of skills to perform its functions, take on its responsibilities and be accountable? Will the ESA provide model schemes of management prior to boards of governors assuming responsibility on 1 January 2010?

4620. Recently, I discovered that the Department wanted a board member on an audit committee to have accountancy skills or financial expertise. However, as the Minister had not nominated anyone with that expertise, the board could not appoint such a member to either its audit or finance committees. If people with specific expertise are not appointed to boards of governors of schools, that same problem could arise.

4621. Consideration must be given to remunerating people who serve as members on boards of governors, because we may not be able to continue to depend on volunteers. I trust that the Committee will be able to address some of those issues.

4622. Mr Haire: We all recognise that today’s economic climate is totally different to that which prevailed when the Bill commenced its passage. That is bound to have an effect on the proposals before the Assembly, particularly in light of the new Budget announcement from Westminster of a potential £122 million reduction in funding for the Northern Ireland economy.

4623. If that amount is correct, how will the ESA make the substantial savings that have been outlined already, never mind the additional savings that will be required in this contracting market? Has the Committee seen evidence of how those savings will be made and how effective efficiencies will be realised?

4624. Peter Duffy will speak to you about the governance of the ESA and the boards of governors and about the relationship between the employer and employing authority, which is a concern to us.

4625. Mr Peter Duffy (Association of Northern Ireland Education and Library Boards): In a paper that was prepared in 2008 and sent to all MLAs, the association made specific reference to the size of the new education and skills authority. It compared the size of the new body with similar bodies in England, Scotland, Wales and the Republic of Ireland. The average populations covered by the education bodies are 327,000 in England; 158,000 in Scotland; 134,000 in Wales; and, for each vocational educational committee in the Republic of Ireland, 140,000.

4626. The existing average population in board areas in the North is 348,000. The new ESA will cover a population of approximately 1·8 million. That will be a massive education board; in fact, it will be the largest in these islands. Senior staff will spend a lot of their time criss-crossing Northern Ireland as they try to meet deadlines and, in the process, cause stress and anxiety to themselves and others. If decisions have to be made in Fermanagh about the proper and adequate provision of education, senior staff will be required to be in Fermanagh to advise and direct boards of governors. Such meetings can be complex and time-consuming. It will not be acceptable for the ESA to issue a diktat from some central location. Local accountability will demand a local presence. As yet, no one knows where local offices will be located; we have been told that politicians have not yet decided where they will be.

4627. To proceed with the recruitment of staff without confirmation of the location of posts would be unfair. Staff may find that the base for those posts could change to a location that is more accessible for them, and the reverse could also be true. A member of staff may secure a post in a particular location only to be based in a less accessible location at a later date.

4628. It is important to identify the location of offices as a matter of urgency. For instance, what will be in Omagh, Armagh, Belfast or elsewhere? It seems that common sense has disappeared. Furthermore, staff morale in the offices of existing boards is going down, because of the perception of how the ESA jobs will be recruited and the difficulties entailed.

4629. I can envisage a future with one super-board dealing with all of Northern Ireland, and senior staff criss-crossing the Province as they try to deal with urgent problems. One must remember that the problems of all schools, large or small, must be dealt with fairly and properly, and there are currently 1,250 schools and approximately 330,000 pupils.

4630. Closing a school is not like closing a shop at a street corner or closing a branch of a bank that is not making money. As members know, schools are part of a community. The community considers that it owns the schools. In the maintained sector, that is partially true, because the community has contributed to the schools. Therefore, they feel a sense of ownership. Closing the schools will not be an easy matter, especially if local people are not talking to the boards of governors and dealing with parents.

4631. The association has problems with the governance arrangements for the ESA. It is proposed that there will be a chairperson and between seven and 11 members, most of whom will need to have an educational background. The current arrangement allows for 35 members in each board area, comprising councillors and other stakeholders who have considerable expertise and experience in the education sector. The association is concerned that the skills and knowledge base of current boards will be lost, diminished or eroded. What about the democratic function and accountability of the new body in a situation in which the number of staff and pupils for whom the ESA will be responsible is increasing dramatically, but in which governance and accountability seem to be significantly reduced?

4632. The ANIELB welcomes the establishment of local committees to provide important regional governance within the ESA, but cannot find any mention of that in the Education Bill. Clarification is required on the composition and function of local committees. Will they be boards under another name?

4633. Another matter that is related to local governance and that is giving us grave concern is the relationship between the employer, as the ESA sees itself — as alluded to in clause 3(1) — and the employing authority, as, it seems, the boards of governors will become in the new dispensation. Boards of governors are to have maximised supported autonomy, but, in the matter of employment of staff, they may become a subcommittee of the ESA. That issue has not been clarified in the Bill, and I can envisage some boards of governors disputing the authority of the ESA in matters involving employment legislation.

4634. The Bill should, and must, clarify the relationship between the employer and the employing authority. Obviously, some boards of governors, especially boards of voluntary grammar schools, which have had maximised autonomy for a long time and appear to want to maintain it, will be loath to give up their traditional stance. In my experience, grammar school boards of governors have no difficulty in recruiting members of the legal profession to give advice and guidance. That is not the case with small schools. We all need clarity about the employer/employing authority relationship.

4635. Mr Haire: Perhaps Hilary wishes to pick up on what I said about the concerns in the controlled sector.

4636. Mrs Hilary Sloan (The Association of Northern Ireland Education and Library Boards): That has to do with the Department’s policy paper 20. Chairman, would you like to discuss that paper after we have discussed the Education Bill?

4637. The Acting Chairperson: It would be better to discuss it now.

4638. Mrs Sloan: I am happy to do that. The Committee has our response to policy paper 20. The association believes that it is very important to establish a definition of the controlled sector. What do we mean when we talk about the controlled sector? We endorsed the definition that was given by the Southern Education and Library Board, which is set out in our response to policy paper 20.

4639. That definition highlights four distinguishing points of the controlled sector. First, it has a community focus in that it is open to all in the community. Secondly, it has encompassing characteristics, excluding no one who could benefit from it. Thirdly, the sector is egalitarian in nature, promoting equality among pupils and among staff. Fourthly, over the years, the controlled sector has been shaped by liberal thinking.

4640. The association believes that the statutory right that the Protestant Churches have had since they transferred their schools in the 1950s and 1960s will now become an influence only, not a right. However, I will leave discussion on that to the Transferor Representatives’ Council, from which the Committee may have heard or will hear in the future.

4641. I reiterate what has already been said by other members of the association and by other people who have appeared before the Committee. There now appears to be a proliferation of bodies, but, the ESA to which we, as members of the education and library boards, originally signed up was to be one authority. That is certainly what I agreed to in the first instance. The different bodies appear not even to have the same or similar functions; some will be subsumed under the ESA, others will stay as they are and new bodies will be created. Policy paper 20 looks at the two new bodies that will be brought into being to represent the controlled sector: one to have an advocacy role and one to create an ownership structure for the sector.

4642. The association worries that the ESA often appears to be more concerned with structures and buildings than with the education of children, important as structures and buildings are. However, because of the fact that there are bodies that represent all other sectors of education, we accept that the controlled sector needs an appropriate advocacy body to protect the interests of the sector in a manner that ensures parity of treatment with all other sectoral interests. As an association, we welcome the creation of such a body.

4643. However, the education and library boards’ members and staff wanted responsibility for the body concerned with ownership to pass to the ESA and to be discharged by the ESA, not by a distinct body. We gather that a statutory body will be artificially created to hold ownership rights. We wonder why arrangements in other parts of the UK should not apply to Northern Ireland. There have been suggestions that the ESA may show partiality to the controlled sector. The association believes that those comments show a lack of judgement.

4644. The association is also concerned that, apart from the bureaucratic being that policy paper 20 presents as the ownership solution, there could be a financial drain in an already-strained economic climate leading to less funding for front-line services. Our paper concludes with a comment from the Western Education and Library Board, which we thought was apt: it says that paper 20 is confusing, contradictory and lacking in clarity regarding a range of issues pertaining to the future of the controlled sector.

4645. Mr Haire: In conclusion, we in the association have a keen interest in children, young people and staff, and we bring a breadth of knowledge of the education system that has been garnered over a number of years. Our collective insight suggests that the creation of a regional authority could be commended; however, our eyes are still focused on the Strathclyde experience and what happened there. There are many complex legal issues, but the governance arrangements for the new authority need to be clarified.

4646. If we may be so bold, we suggest that the Committee may want to pause to reflect on all the evidence that it has heard to date from a variety of witnesses, and, perhaps, be prepared to reconsider the path that has been embarked upon. At times, it feels as though a large tanker was launched around 2005 as part of the RPA and that it is moving in a direction in which we are not really convinced our education system needs to go. I suppose that this Committee is the only body that can alter its direction.

4647. In light of the proposals before us, can we categorically guarantee that the new system of education being proposed will improve our children and young people’s educational outcomes, or will our embarkation on this process cause yet another generation to experience the turmoil that change will inevitably bring, without ensuring any better educational outcome for them or our community?

4648. The theory that has been presented in the Bill has many facts, and those facts need to be clarified. Let us not do what Einstein suggested when he said:

“If the facts don’t fit the theory, change the facts."

4649. Thank you very much for hearing our presentations today.

4650. The Acting Chairperson: Thank you for your presentations. Can you elaborate on the nature of any potential conflict of interest that might arise from the ESA assuming the responsibilities of the Council for the Curriculum, Examinations and Assessment (CCEA) and the need to ensure public confidence in the independence and rigour of public examinations? That issue has been raised.

4651. Mr Haire: The concern expressed was that the central body will have an awarding body function as regards awarding qualifications. That does not seem to happen with any other authority in the rest of the United Kingdom. If that were to be the case, would there be a possibility of that being open to challenge from the Monopolies and Mergers Commission? That was our thinking on that point.

4652. The Acting Chairperson: Is there a concern that the ESA would have a duty to promote high standards and yet be responsible for setting the examinations to determine whether high standards have been achieved?

4653. Mr Haire: Yes.

4654. Mrs Sloan: The association feels strongly, as do some boards — although some feel more strongly than others — that there could be a conflict of interest when a body tries to do two things at one time. It is concerned that there would be no body that sits outside that authority that could play a more independent role in both the setting and examining of standards.

4655. Mr O’Dowd: Peter mentioned that he was deeply concerned that because the ESA will be a single body, its staff will have to travel back and forth across the North, which will cause all kinds of difficulties. That is understandable. However, Hilary, you then said that the association originally signed up to having a single body, and that you are now concerned that there are various layers underneath that. Is there not a contradiction there?

4656. Mrs Sloan: No, I do not think so. The authority is, in some way, the body that will be in charge of education. We signed up to the establishment of one body. Part of Peter’s concerns is how that will work itself out, and whether it will have local committees. We signed up to there being one education authority, but that now seems to be dividing into a lot of other bodies. I do not think that there was a contradiction in what we said. Following on from Peter’s question, we need to work out what regional shape that one authority will have in providing education in different areas of Northern Ireland. We have not yet seen any evidence of that. However, we did not envisage a proliferation of sectoral bodies as part of that education provision.

4657. Mr Duffy: My problem was with the operational side of the ESA. A small body in the centre would, obviously, determine policy. However, how will the operation of that policy happen at local level? Would local committees be subject to the ESA, perhaps subcommittees of the ESA? Leaving sectoral influence aside — because that is a different argument that Hilary is putting forward — as a unified body, the ESA will need local committees, if only to operate the system on even a human resources level.

4658. If the ESA is to be the employer, and the employing authority is, perhaps, the school, how will the ESA ratify appointments and deal with all the paperwork that appointments generate? It will need a record of them, which might come through electronically. Nevertheless, if a board of governors is to appoint someone to a particular post, its members need the application forms in front of them, and they must ensure that the information in the forms meets the advertised criteria for the post.

4659. Who will check whether that is done correctly, if not a local office or a central office? It would be a mammoth task to direct all that paperwork to Belfast and would multiply human resources exponentially. Furthermore, employment litigation is increasing by the day and is quite a serious business. Therefore, those matters must be handled properly. That is my concern.

4660. Mr O’Dowd: I appreciate the clarification. I think that the Department has told the Committee that there will be local support offices. I have not read anywhere that the headquarters will be in Belfast.

4661. Mr Duffy: I am not saying that; if the headquarters were in Derry, there would be the same sorts of pressures.

4662. Mr O’Dowd: I agree with you. There has to be some form of local support network.

4663. Mr Duffy: This is a huge operation. We are creating one mammoth education body to deal with 1·8 million people, and it is increasing the problems.

4664. Mr O’Dowd: There is no representative here from the Southern Education and Library Board. Is that significant?

4665. Mr Duffy: Marie Donnell was not able to come, and she was quite happy that I represented the Southern Education and Library Board.

4666. Mr O’Dowd: OK. Grand job.

4667. Mr Duffy: Our boards are similar in nature, and we co-operate on the curriculum.

4668. Mrs Sloan: We were told that we could have only four representatives.

4669. Mr O’Dowd: That is OK.

4670. The Chairperson: I will put five into four.

4671. Mr Elliott: Thank you for your presentation. It might have been Roy who spoke about possible difficulties in attracting new boards of governors. What is the real problem in the ESA with regard to that, and what will be the difficulty?

4672. Mr Beggs Snr: There are real concerns about the new and additional responsibilities that members of boards of governors will have, and how they will be held accountable. People will be reluctant to become governors unless there is an assurance that adequate training will be given to enable them to carry out their duties and responsibilities. Those matters are unconfirmed, but that is what I have heard.

4673. Mr Elliott: The difficulty with additional training is that it requires additional time, and governors act very much in a voluntary capacity. Would that in itself not lead to problems?

4674. Mr Beggs Snr: Undoubtedly, it will. It will also bring about additional costs. However, people will not be confident about taking up responsibility unless they have had adequate training.

4675. Mr Elliott: And adequate safeguards as well, I would have thought, with regard to legal responsibility.

4676. It has been mentioned a couple of times that the original perception of the ESA has changed. In which areas do you believe that it has changed most? I noticed that your submission states that the association understood that employment would come under one structure. Now, you say that it seems that different moves have been made on that issue. What do you consider to be the main changes to the ESA as it was originally envisaged?

4677. Mr Duffy: My understanding is that the ESA will be the employer, but I am not sure that that would work out operationally as it is envisaged. There is a lack of proper distinction between the employer and the employing authority. When we get down to the nitty-gritty, I do not believe that boards of governors will give up their authority.

4678. The concept has been around since the 1989 Order and, subsequently, I think, the Education and Libraries (Northern Ireland) Order 1993. It was operational under CCMS and worked reasonably well because of goodwill. Boards of governors of grammar schools, which, traditionally, have many lawyers, are not going to give up authority too easily to a central body under the new arrangements.

4679. Mr Elliott: To clarify, Chairman, the association’s submission states:

“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."

4680. Mrs Sloan: When we looked at the ESA when it was set up, we did not realise that all those other sectoral bodies would become major bodies in it. We knew that there would be an advisory forum and other parts of the ESA. We understood, and we hoped, that there would be local committees. That is the operational structure of the ESA.

4681. However, at that time, we did not realise that various other sectoral interests would be represented by more concrete bodies. In many ways, the only part of the education sector that was left out initially was the controlled sector, which is why those two new bodies are to be set up.

4682. Mrs M Bradley: You are all welcome. My concern, which I have raised in the Committee several times, is about the situation with the boards of governors. I also believe that the loss of the education and library boards will be damaging to schools. Schools’ boards of governors were drawn mainly from the education and library boards. It worked well.

4683. At present, I sit on one board of governors. I know that there are big concerns, and they must be given serious attention. People have been scared off; they have great concerns about legalities and about the size of the ESA. They are not well enough informed to allow them to make up their minds. I can tell you that, for some time, governors have been talking about and considering stepping down altogether from boards. A school cannot operate without a good board of governors. It is the heart of a school. Therefore, it is right that we are concerned about the matter.

4684. Mr Poots: I hear what has been said about training for boards of governors. I sit on three boards of governors. Usually, when training is mentioned, people roll their eyes. They are not particularly convinced about the training that is currently on offer. Therefore, if there is to be more of the same training, I would not recommend it.

4685. What is the ethos of the schools that you represent?

4686. Mr Haire: That is a good question. We all have our own, individual perspectives on ethos. The association does not necessarily have a theory that it has talked through. We represent children and people in the education authority.

4687. Mr Duffy: I am from the Catholic sector. Therefore, I have a particular view on maintained schools. I am a trustee representative of the board and have a particular view on the ethos of Catholic schools. I cannot speak for other schools, but I know that some Protestant schools have a very definite ethos. I taught for seven years in a controlled school. That was many years ago, but I am sure that it has not changed. That school had a definite ethos, and I had absolute respect for it. Every school has its ethos, perhaps some more than others, but ethos is very important for a school. It is the underlying thread that holds the whole school together.

4688. Mr Poots: Therein lies the Committee’s problem, and perhaps even the Minister’s problem. Within the CCMS and the Catholic sector in general, there is a very clear ethos. I am a Protestant. I come from the Reformed faith, and I would like the ethos in the schools to which I send my children to be equally strong, but it is not. You boast of your diversity. Where I come from, that is not what we want. We do not want that degree of diversity to the point where everything is watered down. We want to be included and to bring in others, but there are many in the Protestant community who look enviously upon the Catholic sector because it has that strong ethos. When Catholics send their children to a Catholic school, they know the ethos is strong there. However, that strong ethos does not exist in the Protestant sector. That is something that will have to be dealt with, and I note what you say about the transferor representatives, and so on.

4689. There has been a major change in the Protestant churches over the past 30 or 40 years. You speak of three main Protestant churches; however, the Baptist Church is probably equal in size to the Methodist Church, for example, and that is not taken into account in any of this. We cannot continue to look at this matter in the way that we do now and expect to find a ready solution to what the public want.

4690. The Acting Chairperson: That issue is one of the most difficult in all of this. It is simple to deconstruct what is there, but when we start to deconstruct all the issues that have been buried for years suddenly come out into the open. It will take time for those to be resolved. There is a strong view from many members that we must consider equality across the sectors. In my view, there was some institutionalised inequality in the past.

4691. Mr Lunn: With respect to the recruitment of governors, Roy said that, anecdotally, there were only about 200 applications. However, am I right in saying that that process has only just begun? Have not invitations just been issued, or are they not about to be issued? It may be early days yet.

4692. Mr Beggs Snr: The invitations have been issued and it is expected that the process will be completed by June. You are right: it is early days. However, my experience of speaking with governors in the schools in which I serve is that there is some apprehension about signing up again.

4693. Mr Lunn: I am not surprised, and I share their apprehension. Fear of the unknown is a big factor, especially when the job is supposed to be voluntary. I have some sympathy with the view that there should be some remuneration.

4694. In your paper, you discuss the make-up of the ESA and the proposal to have between seven and 11 members. Chris Stewart is laughing behind you. It is stipulated that a majority of those members must be local councillors. I think that 11 is nowhere near enough members, but without going into the question of the optimum number, do you consider it desirable that local councillors should dominate the body?

4695. Mr Beggs Snr: As a local councillor with 25 years’ teaching experience and considerable experience as a board member, I think that councillors who are selected to serve should have considerable educational experience.

4696. Mr Lunn: That is not what I am asking.

4697. Mr Duffy: Experience has shown that councillors find it hard to make up their minds on difficult questions. When it comes to closing a school or passing a budget, councillors generally do not want to know, especially if it means making cuts. The Western Education and Library Board had that problem, as did the South Eastern Education and Library Board. How can boards make difficult decisions if councillors are the majority? For that reason, some boards restricted their councillor membership to 40%, with the remainder comprising other stakeholders. Nevertheless, councillors continue to have a big say.

4698. When councillors take the floor, they can speak for as long as they like and get the press to cover it. There is no way that that would be encouraged at every board meeting. That said, councillors are placed in a difficult position when hard decisions have to be made; that is the nature of their profession. I am not saying that they are not important; local accountability is vital. In my submission I mentioned Fermanagh, where councillors take a keen interest. Tom Elliott has attended many meetings in Fermanagh on how schools are delivering the curriculum and on the need for proper decisions to be made. It is difficult for councillors.

4699. Mr Lunn: Of course it is. Conflicts of interest often arise; it is a question of preserving a council seat versus a proper decision. There is plenty of room for representation by local councillors, but not a majority. I am encouraged by what Mr Duffy said, because the chief executives of the boards were a bit more reticent when we asked them the same question.

4700. Mr Duffy: The vocational committees that were set up in the South of Ireland in the 1930s gave councillors the authority to make decisions, but that had to be withdrawn from them and given to the county manager or the chief executive, who could overrule the councillors in some instances, because of the nature of the difficulties in which they found themselves.

4701. Mr Beggs Snr: I reiterate that 11 members is totally inadequate to provide proper representation for Northern Ireland. I agree with Peter: there is a need for significant elected representative membership in order to protect the democratic process. At the same time, the widest possible decision-making capability is also required.

4702. Mrs Sloan: I wondered what number of councillors Mr Lunn was thinking of. Like my colleague, I think that the proposed number of members of the ESA is too small to represent the whole of Northern Ireland adequately, and I wonder how the ESA will do that. A majority of councillors may not be the best way of achieving the wide representation that the ESA board will need. On the other hand, a much larger board can have its problems as well. There is a happy medium to be struck between the proposed 11 members of the ESA and the 35 members that we may have on education and library boards now. I believe in democratic accountability, but not necessarily in having elected representatives form a majority on the proposed ESA board.

4703. The Acting Chairperson: I was going to observe that in some instances local elected representatives are more ready to challenge the Department; that is sometimes overlooked. However, I can see that there are two views on the matter.

4704. Mrs Sloan: Do you mean that elected representatives are more ready to challenge the Department than independent members might be?

4705. The Acting Chairperson: I think so. I am just making a personal observation.

4706. Mrs M Bradley: Moreover, there is no way of controlling who will be elected by the general public or of knowing whether those representatives will have any interest or background in education.

4707. Mr Haire: That is a key factor. A guide to good governance was introduced in the UK in 2006 and was reissued in 2008. It outlined how committee structures should be built and how they should incorporate a skills mix, which is necessary for councillors and for independent members. By using that guidance we should get the best deal.

4708. The Acting Chairperson: Roy Beggs made the point that the library boards would be looking for experience.

4709. Mrs M Bradley: That is what I said.

4710. Mr O’Dowd: The Department informed the Committee that councillors and other members will be appointed through a public appointments process. Therefore, they will require the skills that Roy Beggs Snr outlined.

4711. The Acting Chairperson: The submission highlighted that there was no mention in the Bill of local committees. Would the library boards be happier if local committees’ roles, representations and any appointments process adopted were made explicit?

4712. Mr Haire: The association has considered that and believes that it would probably be better if it was in the legislation, as it would provide greater clarity for those in the system. From a statutory point of view, we would be able to judge whether we were measuring up to the outcomes expected from each board.

4713. The Acting Chairperson: Has the association any views on the strength of the ESA’s role, remit and representation?

4714. Mr Haire: The association has not yet considered that; however, our members may have personal views that will be taken on board.

4715. Mrs Sloan: Of course, we have not seen the second education Bill.

4716. The Acting Chairperson: That is why the Committee is inviting comment.

4717. Mr Elliott: That would really confuse matters.

4718. The Acting Chairperson: Apparently, at present, that will not even be in the second Bill. Perhaps there is a third one that we do not know about coming down the road.

4719. Mr Haire: That is part of the difficulty of looking at the first Education Bill in isolation; we do not know what the second one will hold. To some extent we, like the Committee, are feeling our way.

4720. The Acting Chairperson: I thank the witnesses for their helpful and informative presentation; they are welcome to remain while the departmental representative is questioned. If, after that, the association has any comments, the Committee will be happy to receive them.

4721. I thank Mr Chris Stewart for attending. Having heard and read the submissions, may the Committee have the Department’s comments?

4722. Mr Chris Stewart (Department of Education): Thank you, Mr Chairman, and good afternoon members. After the AQE presentation, I wonder whether my nameplate this afternoon should read “El Greco" or “Lenin". However, I am happy to go under my usual nom de plume.

4723. I am conscious that the Committee has had a long meeting and still has a busy agenda. As ever, I will attempt to be brief and to leave time for members’ questions. I will begin by picking up on the major points raised by the AQE and then move on to the points raised by the boards.

4724. The Department welcomes the AQE’s support for the overall reform of education administration, although, of course, we note and take very seriously its many concerns about specific proposals. Today, and on previous occasions, members have heard concerns that the ESA will be an overly centralised body. I assure you that that is not the case. It will be a single organisation, but with a strong and significant local presence. Back-office functions will be centralised in the interests of efficiency and effectiveness. However, the main role of the ESA is not back-office functions; it is to provide front-line support services to schools and other education providers. Those services will continue to be provided locally, and that will be the major factor in determining the structure of the organisation.

4725. The initial local footprint of the ESA is unlikely to differ significantly from that of the current organisations. In the time available to us between now and 2010, it would not be practical for it to be otherwise.

4726. The AQE has significant concerns about whether the employment arrangements would provide a proper autonomous decision-making role for boards of governors. However, we note that even if we satisfied that concern, the AQE objects to the arrangements on principle, and we understand that.

4727. We have covered the issue extensively in evidence to the Committee, but it is worth re-emphasising some key points. The Education Bill makes it clear that boards of governors will make decisions, and the effect of the relevant clauses is that the ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters. As was mentioned earlier, the ESA can ask a board of governors to reconsider a matter if — and only if — a board of governors has not followed its own procedures. The idea that the ESA will somehow have a charter or licence to interfere gratuitously in the day-to-day business of a board of governors is simply not borne out by scrutiny of the Bill.

4728. We have also said before that the review of public administration employment arrangements closely resemble those that apply in Catholic maintained schools. I agree with Sir Kenneth that it is important to look at what the legislation says. It is worth looking at what the current legislation says about those arrangements, which we propose to apply to all schools. The legislation says that the determination of staff complement is a matter solely for boards of governors and that the employer does not have a role. The legislation also states that it is the boards of governors who draw up and implement the disciplinary rules and procedures and that the role of employer is limited to that of consultee.

4729. Suspension is a matter for boards of governors and principals — not the employer. Most crucially of all, dismissal is a matter for boards of governors only.

4730. Those are not aspirations; they are concrete features of the current legislation and of the arrangements that we propose to apply. They demonstrate clearly that boards of governors can, and do, have an autonomous decision-making role under such arrangements.

4731. The Department notes the concerns that were raised about the requirement for all grant-aided schools to draw up schemes of management. We emphasise that grant-aided schools are publicly funded institutions that provide a public service, as was acknowledged by AQE. The boards of governors of grant-aided schools manage those organisations, which educate some 400,000 of our children and spend almost one quarter of the Northern Ireland public expenditure block. We do not think it unreasonable to ask organisations that have such significant responsibilities to have effective governance arrangements in place and to stick to them. That is the effect of the provisions of the Bill.

4732. Those are not new requirements. Similar provisions have been in statute since 1989, and the only significant change proposed now is that the schemes of management will be approved by the ESA rather than by the Department.

4733. Many of the concerns that were expressed about the appointment of governors might be resolved by a fuller explanation of the relevant provisions of the Bill, which, like many provisions, need to be read in conjunction with existing legislation. As I said before, there is a great deal of existing legislation.

4734. It is important to emphasise that there are no powers in the Education Bill for the ESA to remove or restrain a board of governors; the power to remove governors is already in legislation. Only the Department can remove an entire board of governors. The ESA, like education and library boards at present, could be given the power to remove some governors but only those whom it appoints. That does not include the principal, staff governors, parent governors or foundation governors who are appointed by the school itself.

4735. Another concern was that community governors might outvote foundation governors, thereby significantly changing the character or ethos of a school. That concern, I have to say, is unfounded and perhaps reflects a misunderstanding of the detailed effect of the provisions. The Education Bill makes relatively minor changes to the governance of schools. The key change is that appointments currently made by education and library boards or by the Department will in future be made by the ESA.

4736. The composition of boards of governors will not change, and the proportion of appointments made by the ESA will be the same as that currently made by the Department and by education and library boards. That means that, with the exception of controlled grammar schools, the ESA-appointed, or community, governors will be in a minority. There is, therefore, little prospect of foundation governors being outvoted by community governors, as is the case at present.

4737. The Department heard significant concerns about the definition of community governor as someone “living or working in the local community". The association felt that that definition may be overly restrictive, and we take that concern seriously. We regard a reasonable definition of the local community as being the community served, or potentially served, by a school. Given the broad catchment areas served by post-primary schools, and we heard evidence of that today, the Department does not regard that definition as overly restrictive.

4738. I emphasise that the Department’s view is that having a minority proportion of governors drawn from the community served by a school could only strengthen the links between a school and that community. Such strong links are often the hallmark of a successful school, and we regard that as entirely consistent with the voluntary principle.

4739. If members wish, I can pause or move on to the points raised by colleagues from the education and library boards.

4740. The Acting Chairperson: Do members have any questions on the issues that Chris raised? I have a question about local committees, but I will leave it for now.

4741. Mr Stewart: You are anticipating my response to a question that you have not yet asked.

4742. The Acting Chairperson: You are a prophet. Let us move on.

4743. Mr Elliott: I have a question. Chris, are you saying that if a school in Belfast accepted pupils from Bangor and Donaghadee that that catchment area could also apply to governors?

4744. Mr Stewart: I consider that entirely reasonable. The intention of the provision was never to restrict the potential pool of governors, as that would be unwise; its intention is to strengthen the links between schools and the communities that they serve. We must recognise that the community served by schools does not stop at the end of a street or the boundary of a town. As successful schools have broad catchment areas, it is logical for the composition of their boards of governors to reflect that. If it is felt that the clause does not support that definition or that it is unduly restrictive, the Minister will want to consider the Committee’s view on whether an amendment is required.

4745. Mr Lunn: On the question of employment, have you any sympathy with the Association for Quality Education’s interpretation of the Queen’s English? As you say, the definition seems straightforward, yet the AQE managed to interpret it as having a darker intent.

4746. Mr Stewart: I am struggling with the notion of a civil servant having sympathy with anyone about anything; I am not sure that we are allowed to be sympathetic.

4747. We understand the concerns of the AQE and of other stakeholders. We understand the fundamental nature of their objections to the proposals in principle because they argued cogently and with great sincerity. Nevertheless, the Department must operate within the confines of the policy set by the Minister. Therefore, we recognise the concerns but consider that they are outweighed by the benefits that will be provided by the arrangements proposed in the Bill.

4748. Mr Lunn: I do not understand when you say that you understand. They offer a different legal interpretation of what appears to be — although a Bill is never simple — fairly guidelines, rules, and legalities. Their view continues to differ from that of the Department. Is the Department re-scrutinising the wording of the Bill to consider whether the other interpretation has merit? By that I mean legal interpretation rather than their opposition to change.

4749. Mr Stewart: We have not reconsidered the Bill on that basis. You are right; many legal minds have considered the matter — and I will utter my usual caveat that I am not one of them — and although I am not privy to the legal advice that the Committee has received, I have seen the GBA’s legal advice and that of others who have given evidence to the Committee. To date, no lawyer has been able to disagree with the statement that the ESA cannot lawfully refuse to put into effect any proper decision that is taken by a board of governors.

4750. Mr Lunn: That is the key sentence.

4751. The Acting Chairperson: Is it solely in the ESA’s power to decide whether a board of governors has followed its own procedures or employment scheme? How is a dispute between the ESA and a board of governors resolved?

4752. Mr Stewart: The short answer to your first question is yes. However, the burden of proof — which is, perhaps, an unwise phrase to use — would be on the ESA. Unless there is good reason to doubt that a board has followed its own procedures, the ESA ought not to interfere. The ESA should not second-guess every action of a board of governors. That is not the intention of the provisions, and even if the ESA sought to do so, it would not be a practicable proposition. The ESA will not have the resources to crawl over every administrative action of a board of governors, and there is no need for it to do so.

4753. Mr O’Dowd: At the extreme of an argument over a fine point of law, I assume that a board of governors has the right to a judicial review of the ESA.

4754. Mr Stewart: Yes.

4755. Mr O’Dowd: Therefore, the ESA is not a legal entity that nobody can touch.

4756. Mr Stewart: That is correct. The recourse to judicial review is available. However, who pays the cost of such legal action might be an interesting question, and whether it is desirable for one part of the education system to take legal action against another is another question. However, the Education Bill does not seek to restrict any party’s recourse to law.

4757. The Acting Chairperson: We should, perhaps, move to the second part of the session.

4758. Mr Stewart: I will address several points that were made this morning. We welcome ANIELB’s support for the RPA’s general principles and direction. We note and take seriously its significant concerns, including its support for a single inclusive authority. However, the representatives suggested that, since the original proposals, we had somehow departed from that principle because some bodies would continue to exist or be brought into existence. The point is well made and understandable in relation to the ownership body for controlled schools, which did not feature in the original RPA proposals. Members are aware of the thinking behind and the reasons for that proposal.

4759. It is worth clarifying the position of several other bodies, particularly some sectoral bodies such as the Northern Ireland Council for Integrated Education and Comhairle na Gaelscolaíochata. Under the current or previous administration, it was never proposed to dissolve either of those bodies. Indeed, the original RPA proposals did not include a decision to dissolve CCMS; that was added later by the current Minister. A recognition of the need for sectoral bodies has been a feature of the RPA from the outset and was underlined in the Bain Report, which emphasised the need for sectors to have the capacity to represent their needs.

4760. The association correctly pointed out that the Department’s earlier thinking had not given enough consideration or placed enough emphasis on the needs of the controlled sector in that environment. The Committee knows that we are working on proposals to catch up on that issue. However, we recognise that deficit, and we need to work hard to ensure that the controlled sector is in an equal position. I must emphasise that it was never proposed, at any stage in the RPA, to dissolve sectoral bodies.

4761. Mr Beggs correctly drew attention to the weaknesses of some boards of governors and expressed concern about the need to ensure that boards of governors are adequately prepared, trained and supported to do a difficult and challenging job that we ask people to undertake in a voluntary capacity. We take training and support for boards of governors very seriously, which is why we proposed in the legislation to make it a statutory duty of the ESA to provide such training and support. Of course, putting something in legislation and making it happen are two different things, and we recognise that the Committee and other interested parties will be looking for clear evidence that the ESA is addressing the issue. With regard to the legislation, the Department feels that it has gone as far as it can in placing a statutory duty on the ESA to provide such advice, training and support.

4762. Mr Beggs asked whether model schemes of management would be available for January 2010; they will. He also suggested that we might need to consider the remuneration of school governors, and I understand the arguments behind that. However, that is not a realistic prospect in the current financial climate, and we must continue to ask boards of governors to discharge their responsibilities in a voluntary capacity.

4763. Reference was also made to the need for efficiency savings, and Committee members do not need me to tell them the difficulty of the financial climate in which we are operating. The Department and the ESA, like any other Department or public organisation, must respond to the requirements that the Budget places on us. The issue is whether we can find the necessary efficiency savings more easily under the new arrangements. It is essential that we move to the new structures as quickly as possible to give ourselves the scope to make our education system as effective and efficient as possible.

4764. Much concern was expressed about the size of the ESA, but there are examples to demonstrate that it is possible to have effective regional organisations that deliver local services. For example, the Housing Executive, to which Sir Kenneth referred, the CCMS in the education sector, and the Police Service are all regional organisations that deliver local services.

4765. It was asked where local offices will be located. It will not surprise members that initially they will be in Belfast, Omagh, Dundonald, Armagh and Ballymena, because, as I said, the initial footprint of the ESA will reflect that of the existing organisations. We were asked what will be in those offices, and the answer is: what is in them at present. There is no intention to centralise front-line support to schools; it would make no sense to centralise youth-service provision or the provision of educational psychology. If anything, we need to look for scope to move those services closer to schools and to other education providers.

4766. Size is not, and never has been, a key criterion or reason for establishing the ESA. We are not taking this direction because we think that there is some critical mass that is necessary for us to achieve; it is not the size of the organisation that is the driver, but the number of organisations. We have separate, autonomous organisations that pursue their own policies and practice, and that has led to different outcomes and to inequality. That is the reason for having a single education and skills authority.

4767. I smiled earlier because I was worried that the Acting Chairman might not ask the question that he has asked every week until now about the number of members on the ESA. I was relieved that he did ask it. Committee members are familiar with the Department’s position on that, and I will not go over the same ground again today.

4768. The response to the question from my colleagues from the Association of Northern Ireland Education and Library Boards about where committees would feature in the Bill is schedule 1(7) and 1(8).

4769. Finally, I will address the issues of the employing authority and the respective roles of the ESA and boards of governors. We accept entirely the point made by stakeholders today, and by Committee members on other occasions, that there is a need for greater clarity: people need to see the detail of their respective roles in black and white. We recognise that the Department has a job to do on that issue, which we will address as quickly as possible.

4770. Comments were made on paper 20 and on the ownership and representation of controlled schools. My colleagues from the association outlined what they saw as four key features of the controlled sector: its community focus, its inclusivity, its egalitarianism and its liberalism. Those strike me as necessary components of the ethos of the controlled sector, and we feel that they should be reflected even more explicitly in that ethos.

4771. We understand the association’s concern about the proliferation of bodies. However, members are aware of the reasons for the proposal from the controlled schools’ ownership body. Indeed, it is something that members encouraged us to do and argued was necessary because of the concerns that members expressed about the potential conflict of interest of the ESA, were it to own controlled schools. We welcome the support of association colleagues for a representative body for the controlled sector.

4772. The Acting Chairperson: The ESA will have responsibility for setting and improving standards; however, it will also set the examinations that assess those standards. How do you address that conflict of interest?

4773. Mr Stewart: That potential conflict of interest is addressed by the fact that the role of accrediting qualifications rests with the Department, not with the ESA; the Department decides whether a qualification meets the required standards.

4774. The Acting Chairperson: Who will prepare the examination?

4775. Mr Stewart: The ESA, but it is for the Department to decide, for example, whether the ESA’s GCSEs or A levels are of the required standard. The Department will formally accredit the qualifications that are offered by the ESA.

4776. The Acting Chairperson: There is a great deal of dispute about examinations, and even universities have expressed a lack of confidence in some of them; people want more rigour. Is confidence not undermined by the same organisation both setting and marking examinations? That may be a question of perceptions or confidence rather than anything else, but is that not a potential issue?

4777. Mr Stewart: With respect, those are two separate issues. From time to time, higher-education establishments and employers express concern about the standard of qualifications that are provided by authorities here and in other jurisdictions. There are two safeguards, one of which is the fact that the Department has the formal accreditation role, and it will be very sensitive to any concerns that universities or employers may raise with us.

4778. There are also liaison arrangements in place among all the examinations authorities and bodies in all the jurisdictions to ensure that there is consistency of standard among them and to ensure that there is portability of qualifications for our students and young people. If there is a concern being expressed by universities, it is not a particular concern about Northern Ireland qualifications; it is a concern about qualifications in general, which is a different issue.

4779. The Acting Chairperson: What would be the downside to separating the examinations body and the ESA? Is there not a possibility of having two separate entities that share some background resources and so save money?

4780. Mr Stewart: In fact, the proposal in the original RPA consultation document was that there would be two bodies: one would be responsible for curriculum and examination matters and the other for the remainder of the functions. The view that the Minister of the day took, and which the current Minister shares, is that there would be no real benefit in such an arrangement and some additional cost, stemming from the fact that yet another public-sector body would be in existence.

4781. The Acting Chairperson: I am sure that we will come back to that issue. Schedule 1(7)(1) states that the “ESA may establish committees." We have talked about local committees, but when will there be more substance to that?

4782. Mr Stewart: I have emphasised to colleagues in the Department and ESAIT, who are working on the matter, that it is the Committee’s desire to see some detail on local committees as quickly as possible. I cannot remember the timescale that I gave in last week’s letter. We certainly need to bring something to the Committee within the next two or three weeks.

4783. Mrs M Bradley: Did you say that there would be four support offices?

4784. Mr Stewart: No formal decision has yet been taken on the number of local offices that will eventually be in place.

4785. In the material that the Committee has seen previously, the Department had suggested that our initial thinking is perhaps six local offices in order to be as coterminous with local councils as possible. The local offices that exist on 1 January 2010 will be those that exist today. Even if we wished to do so, there is simply not the prospect of making wholesale change to the organisation of front-line services in the few months that are available to us.

4786. Mrs M Bradley: Who will take the final decision on the number of local offices, Chris?

4787. Mr Stewart: As the ESA reconfigures and transforms its services, we expect it to bring forward proposals. However, it would be the Department — taking account of the views expressed by the Committee, of course — and the Minister who would make the decision.

4788. The Acting Chairperson: I see that there are no further questions. You got off lightly today.

4789. Mr Stewart: Extremely lightly, Chairman, and I am very grateful for that.

4790. The Acting Chairperson: You have three or four weeks, apparently, to prepare the response to the question that we asked.

4791. Mr Stewart: We will try to do better than that, Chairman.

20 May 2009

Witnesses:

Mr Chris Stewart
Ms Eve Stewart

Department of Education

4792. The Chairperson (Mr Storey): The Committee has heard evidence on the Education Bill from 13 key education stakeholders, and has received submissions from all the major educational stakeholders. The Committee has noted the many issues and concerns that stakeholders have raised about the changes that the Bill will introduce.

4793. After each stakeholder evidence session, and in previous policy sessions, the Committee has had the benefit of briefings and question-and-answer sessions with senior departmental officials. We should place on record our appreciation to those officials, particularly Chris Stewart and John McGrath, for all their efforts to date, along with the staff that they have brought with them on various occasions. I thank them in advance for their assistance in the weeks to come as the Committee’s work on the Bill intensifies.

4794. Having completed the evidence-gathering period of the Committee Stage and its scrutiny of the Bill at last week’s meeting, the Committee agreed that it was an appropriate point for it to take stock of some of the key issues and concerns raised about aspects of the Bill and the Department’s responses to date, notably the mop-up response from the Department on 5 May 2009, and the extent to which the Committee is satisfied with that response.

4795. The Committee has kept the Department fully informed of its concerns and those of stakeholders, and we have followed up our weekly meetings with letters confirming requests for additional information that the Committee considered necessary to enable it to determine the merits or otherwise of those issues and concerns. The Committee shares some of the stakeholders’ concerns. Members will by now have had an opportunity to consider the Department’s response of 5 May to the Committee’s requests for information over the past four months. Although some of those requests have been answered in whole or in part, several of the Committee’s key requests remain to be dealt with. I trust that those issues will be addressed soon.

4796. That begs the question of how, given the incomplete information, the Committee can move forward in its consideration of the Bill. For example, one of the issues that has most exercised some major stakeholders and members is the creation of a single employing authority and the schemes of employment that are supposed to maximise the autonomy of boards of governors. The model schemes and guidance will not be available for several months. However, over the next few weeks, the Committee must decide whether it is prepared to approve the general concept of a single employing authority and leave it to the Department and the Minister to produce guidance and model schemes that will allow for the maximum autonomy of boards of governors.

4797. The Committee finds it difficult to see how some of the arrangements in the Bill will work in conjunction with the second Education Bill: for example, a major issue is finding a mechanism to ensure that the controlled school ownership body will be representative of the community that it serves. That difficulty has yet to be resolved.

4798. All members are concerned about the lack of satisfactory progress in establishing the sectoral body and an ownership body for controlled schools. The Committee has been told that it will receive an analysis of the Department’s controlled schools ownership and representative consultation paper in two or three weeks and, perhaps, a revised policy paper after that. At a meeting on 3 June 2009, the Committee will also hear about the contents of the second Bill, but only its area-planning aspects.

4799. In light of all those issues, the Committee will have to decide whether it has sufficient information to leave such matters in the hands of the Department and the Minister. If the Committee does not get clarity, certainty and sufficient information to gain confidence on certain issues in the Bill within the next three to four weeks, it may wish to consider, for example, mechanisms by which it and the Assembly might retain some measure of control. Such mechanisms might include an enabling provision, clause or amendment, already discussed in broad terms, on the employment issue. That would require the Department to provide model employment schemes and guidance through secondary legislation.

4800. Members will have received my draft letter to the Minister on behalf of the Committee; the Deputy Chairperson and I approved its circulation to members last week. A slightly updated version, to reflect the Committee’s consideration of this week’s rather than last week’s meeting, has been provided to members. I hope that members have had time to read it and the accompanying table. The table sets out some of the Committee’s main concerns according to the relevant clause of, and schedule to, the Bill. It details the information still outstanding and reaffirms that the Committee needs to obtain that from the Department urgently. It lists those clauses and schedules to which amendments may be considered.

4801. I propose that we work our way through the table and consider the relevant paragraphs of the draft letter, including paragraphs 3 and 4, as we go along. After that, we will discuss, as necessary, the remaining paragraphs. Are members content with that approach?

Members indicated assent.

4802. The Chairperson: We want to approve the draft letter before going to the table. Although we do not want to rush, I remind members of what I said about efficiency and time, so we will take the letter paragraph by paragraph for members’ approval. Do members have their homework books open at the right place?

4803. The title of the correspondence is:

“EDUCATION BILL-COMMITTEE FOR EDUCATION CONCERNS WITH AND POTENTIAL AMENDMENTS TO THE EDUCATION BILL".

4804. I will begin with paragraph 1. I should point out that the Department’s letter does not commit any party to any particular decision; it merely tries to set the context for what members will do over the next few weeks and ensure that the Committee has all the relevant information. I should underline that it is the Department’s responsibility to suggest amendments to the Committee. That is preferable because it enables the Committee, the Minister and the Department, to agree a way forward. That is my attempt to condense what the Committee will say in response to this correspondence.

4805. Are members content with paragraph 1?

Members indicated assent.

4806. The Chairperson: Are members content with paragraph 2?

Members indicated assent.

4807. The Chairperson: If members have objections, pleases raise them as we go through each paragraph so that we do not have prolonged periods of silence to which the Committee is not used; although they may not be a bad thing sometimes. I see that Chris Stewart gets a mention, so we will pay particular attention.

4808. Mr O’Dowd: I am conscious that the letter does not commit parties to a position; however, I am concerned about the wording of paragraph 3, as some literary licence has been used. Part of the substantive paragraph states:

“The Committee discussed this point at its meeting 20 May and agreed it is clear that it would wish to see the draft amendment(s) to the Bill to make such regulations on schemes of employment (subject to Assembly control)".

4809. That is fair enough, but what does “subject to Assembly control" mean?

4810. The Committee Clerk: The Committee decides whether regulations are subject to negative, affirmative or confirmatory resolution, which are then approved by the Assembly.

4811. Mr O’Dowd: I am happy with that. However, after that statement in paragraph 3, literary licence takes flight. It continues by stating that the Committee would wish to see:

“the terms of the draft subordinate legislation as soon as possible. This would be on the basis of the broad content of the regulations…The acceptability to the Committee of the idea of a Single Employing Authority itself depends upon the Committee being satisfied that the model schemes and guidance will explicitly deliver the maximised autonomy officials have rehearsed in Committee and in various papers. "

4812. That is very definitive and asks parties to sign up to a definitive course of action at this early stage. There is no need for any part of paragraph 3 after the words “1 April."

4813. The Chairperson: Do members have views on that? Do you mean that you would amend paragraph 3 by removing the sentence that begins, “The acceptability to the Committee", and ends with “in various papers."? Are you content with the last few lines of paragraph 3, from:

“The Committee sees this as an urgent issue, since it has been informed"?

4814. Mr O’Dowd: I am happy enough to retain the last sentence.

4815. The Chairperson: Therefore your only objection is to the sentence that begins, “The acceptability".

4816. The Chairperson: Will members read over that section of the letter and decide whether they want to amend it?

4817. Mr Elliott: What is the issue? Surely that sentence merely says that it is up to the Committee to decide whether to run with the idea of a single employing authority. It is just a factual statement, although I accept that I might have misunderstood John’s point.

4818. Mr O’Dowd: It is much more definitive than a mere factual statement. The sentence reads:

“The acceptability to the Committee of the idea of a Single Employing Authority itself depends upon the Committee being satisfied that the model schemes and guidance".

4819. There is much more to deciding whether I will accept a single employing authority than simply being satisfied with the employment schemes. I am aware that some political parties around the table have concerns about the idea of a single employing authority, but there is no need at this stage of the Bill’s scrutiny for the Committee to state definitively that it will reject a component of the Bill based on one issue. Therefore, there is no need for it to be included in the letter.

4820. Mr D Bradley: That is a fair argument, because that point was not put to the Committee, and the Committee has not voted on it.

4821. The Chairperson: We could remove the sentence beginning “The acceptability" down to “various papers" and leave in “The Committee sees this as an urgent issue".

4822. Mr Elliott: We could insert the words “and other matters" after “being satisfied that the model schemes, guidance" so that it would read “being satisfied that the model schemes, guidance and other matters." That would cover everything.

4823. The Chairperson: Let us deal with the first issue so that we do not get confused. Are we happy to remove “The acceptability" down to “various papers"?

4824. Mr Elliot: No. I suggest that we insert a few words into the sentence to make it more acceptable; it would also allay John’s concern. The words “other matters" would not tie us down just to model schemes and guidance. That would leave it open for all the issues to be discussed under the single employing authority.

4825. Mr Lunn: I hear what Tom is saying, but, having reflected on what John said, I do not think that there is any need to have that sentence at all, and removing it does not diminish the effect of the letter. We could be here all day tinkering with the letter.

4826. Mr O’Dowd: Dominic hit the nail on the head. The Committee has not voted on this issue nor has it taken a definitive position on anything. The letter merely highlights the Committee’s concerns to the Department. If we start laying down definitive positions, it will be difficult to agree this letter.

4827. The Chairperson: Tom, are you happy enough with that?

4828. Mr Elliott: I would have preferred to add the words that I suggested, but I am not going to die in a ditch over it.

4829. The Chairperson: The last sentence on that point reads:

“The Committee sees this as an urgent issue, since it has been informed that the draft Employment Schemes and guidance are not likely to be available for ‘several months’."

4830. Are members content?

Members indicated assent.

4831. The Chairperson: Do members have further concerns with paragraph 3?

4832. Mr O’Dowd: The wording of the final bullet point of paragraph 3 is unsatisfactory. It states:

“The Committee discussed this at its meeting on 20 May and agreed that the important point here is that a mechanism needs to be found to ensure that the Controlled Sector Ownership Body is to be representative of the community served by the Controlled Sector."

4833. I realise that that is a major concern for some members; nevertheless, the Committee has not agreed that.

4834. Mr Elliott: We could agree it today.

4835. The Chairperson: It is important that members express their concerns. As John said, the Committee has not agreed that, but the purpose of the meeting is to agree whether the issue should be included in the letter.

4836. Mr McCausland: The first sentence states “The Committee noted the line"; that is just a statement of fact. The second sentence states:

“the Controlled Sector Ownership Body is to representative of the community served".

4837. If that were not the case, the controlled sector would be different from other sectors, and throughout our scrutiny we have espoused equality as a fundamental principle.

4838. On a grammatical issue, the sentence states that “it is to representative" — obviously the word “to" should be omitted. Since we have established the principle of equality of representation in other sectors, the controlled sector should be no different. That is important. If it needs to be agreed, it can be agreed; however, I have not heard anybody dissenting from it until now.

4839. Mr O’Dowd: Chairperson, may I remind you of your opening remarks that the letter is not for parties to make definitive decisions but to raise with the Department concerns that were highlighted at the Committee meeting? There are concerns with which I agree and those with which I do not. Why should we pick out a particular paragraph or issue and have a formal vote on it today to ascertain the Committee’s agreed position? We may return to it in a week, a fortnight or three weeks and agree it as the Committee’s position. There is another way of wording the letter to enable the Committee to reach agreement today rather than splitting the Committee on a division.

4840. The Chairperson: What is your suggestion?

4841. Mr O’Dowd: I suggest something along the lines of “the Committee has raised and heard concerns", for example.

4842. Mr D Bradley: We could leave out “agreed that the" from the sentence; “the Committee discussed this at its meeting on 20 May and agreed that the" so that it reads “and an important point here is that". Would that be acceptable?

4843. Mr O’Dowd: It is acceptable as long as we realise that we will return to it in later discussions; my party is not tying itself to any proposal.

4844. The Chairman: It recognises it as an issue.

4845. Mr O’Dowd: Which it is.

4846. The Chairperson: Therefore we will take out “and agreed that".

4847. Mr D Bradley: No; we will take out “agreed that the" and replace it with “an" so that it reads “and an important point here is".

4848. The Chairperson: Are members content?

Members indicated assent.

4849. The Chairperson: That brings us to paragraph 4.

4850. Mr O’Dowd: I have a problem with the style and presentation of the letter; a great deal of literary licence has been used in the writing of it. It is not how a report from a Committee should be presented.

4851. The Chairperson: It is not a report from the Committee; it is a letter that the Committee Clerk and his staff have drafted as an overview of the concerns that have been raised. We all have personal opinions on the style of various things, but the letter is an attempt to get an overall view. The Committee can make slight changes to it without impinging on any member’s views.

4852. Mr O’Dowd: OK.

4853. The Chairperson: Are members content with paragraph 4?

Members indicated assent.

4854. The Chairperson: Are members content with paragraph 5?

Members indicated assent.

4855. The Chairperson: Are members content with paragraph 6?

Members indicated assent.

4856. The Chairperson: On a grammatical point, paragraph 7 states: With a Bill of the size and complexity of the Education Bill, the Committee will not normally".

4857. Should that be “would not normally"? Is that correct? The teachers among us can keep me right. Are members content with paragraph 7?

4858. Mr Elliott: Does paragraph 7 make it clear that we hope that the Department and the Minister submit amendments?

4859. The Chairperson: Yes.

4860. Mr Elliot: That is fair enough.

4861. The Chairperson: Are members therefore content with paragraph 7?

Members indicated assent.

4862. The Chairperson: Are members content with paragraph 8?

4863. Mr O’Dowd: I have a problem with the wording of paragraph 8, which states that:

“The major problem we currently have with this Bill, as clearly exemplified earlier in this letter, is that the clarification and information requested by the Committee on some key issues is not forthcoming".

4864. I assume that we are trying to get across the point that our major problem is with scrutinising the Bill — which I do not agree with. However, even so, the sentence is not worded properly.

4865. The Chairperson: Do you want it to be amended so that it reads:

“One of the problems we currently have"?

4866. Mr O’Dowd: I assume that the paragraph is trying to get across the point that we have a problem with scrutinising the Bill; I do not agree that there is a problem. We are awaiting important information from the Department; however, I have listened to many, many hours of evidence from the Department that many of the witnesses have repeated. Therefore, we have replicated evidence sessions on several occasions.

4867. The Chairperson: Do you want the sentence to read:

“One of the major problems that we currently have"?

4868. Mr Elliott: I think that John is making the point that the major problem that we have is with the scrutiny of the Bill.

4869. Mr O’Dowd: Aye; I want the sentence to be reworded to reflect that.

4870. The Chairperson: Do you want the sentence to be reworded to reflect the problems that the Committee has in scrutinising the Bill?

4871. Mr O’Dowd: I realise that I am contradicting myself. It is not my job to defend Department officials, regardless of whether my party has a say in how that Department is run. However, the wording of that sentence is somewhat unfair to officials and needs to be reworded.

4872. The Chairperson: Do you have any suggestions?

4873. Mr O’Dowd: Perhaps the sentence could be reworded as follows: “The Committee wishes to scrutinise the Bill effectively, as clearly exemplified earlier in this letter. The clarification and information requested by the Committee on some key issues is not forthcoming within a reasonable timescale, and there appears to be an expectation that the Committee must express more detailed views and proposals to the Department". Does that make any sense?

4874. Mr D Bradley: Say that again. [Laughter.]

4875. Mr Elliott: The basis is OK; I do not have an issue with that form of words.

4876. The Chairperson: Therefore the sentence will start:

“We currently have difficulty in scrutinising the Bill".

4877. Mr Elliott: No, I think that John said:

“The Committee wishes to provide effective scrutiny of the Bill".

4878. Mr O’Dowd: The sentence that Tom said should be followed by: “, as clearly exemplified earlier in this letter. The clarification and information requested by the Committee on some key issues is not forthcoming within a reasonable timescale". Is that fair enough?

4879. The Chairperson: Did you get that?

4880. The Committee Clerk: I hope so.

4881. The Chairperson: Will you repeat it so that we know exactly what the wording will be?

4882. The Committee Clerk: Paragraph 8 will now read: “The Committee wishes to provide effective scrutiny of the Bill, as clearly exemplified earlier in this letter". Did you want to make any changes to the latter part of the paragraph?

4883. Mr O’Dowd: No.

4884. The Chairperson: We must be absolutely clear on what we have agreed so that there is no confusion. Can you read the sentence again?

4885. The Committee Clerk: “The Committee wishes to provide effective scrutiny of the Bill, as clearly exemplified earlier in this letter."

4886. The Chairperson: Insert a full stop after “letter" and start a new sentence:

“The clarification and information requested by the Committee on some key issues has not been forthcoming within a reasonable timescale".

4887. The Committee Clerk: “has not been"?

4888. The Chairperson: Yes; that makes the sentence grammatically correct.

4889. The Chairperson: That brings us to paragraph 9.

4890. Mr Lunn: I take it that the grammar will be tidied up.

4891. The Chairperson: I hope so.

4892. Mr Lunn: The start of paragraph 9 reads “the Committee desired approach" when it should read “the Committee’s desired approach". Paragraph 3 also reads:

“the Controlled Sector Ownership Body is to representative"

4893. It should be “to represent" or “be representative of".

4894. The Chairperson: Yes, the word “to" should be taken out. Also, as you pointed out, paragraph 9 should be amended to read “the Committee’s desired approach".

4895. Are members content with paragraph 9, subject to that change?

Members indicated assent.

4896. The Chairperson: Are members happy with paragraph 10?

Members indicated assent.

4897. The Chairperson: Are members happy with paragraph 11?

Members indicated assent.

4898. The Chairperson: That brings us to the end of the letter. Are members happy to approve the changes that have been agreed?

Members indicated assent.

4899. The Chairperson: We now move to the table of the Committee’s outstanding concerns about the Bill. I am aware that there is a considerable amount of detail, but we will go through the table item by item. The first item is membership.

4900. Mr O’Dowd: Given that the Committee has not reached any definitive position on the matter, could we use the phrase “Concerns that have been raised by Committee members" rather than “Committee concerns"?

4901. The Chairperson: You mean rather than a generic reference to concerns?

4902. Mr O’Dowd: It could say “have been raised by some Committee members".

4903. Mr Lunn: If we do that, we will have to repeat the phrase throughout the whole table.

4904. Mr O’Dowd: That is what I am suggesting.

4905. Mr Lunn: It could be covered in one sentence.

4906. The Chairperson: As the Assistant Clerk suggested, we could put at the top of the page the line, “Concerns that have been raised by some members."

4907. Mr O’Dowd: That would do.

4908. The Chairperson: Is the Committee happy to go through the table item by item?

Members indicated assent.

4909. The Chairperson: I will give members a couple of minutes to read the paragraph on membership. The format is straightforward: the table lists the clause, the concerns and the implications for the Education Bill, and, where appropriate, any amendments.

4910. Mr Lunn: The third bullet point states that there were concerns about the requirement for a majority of Members to be councillors because of the small membership of the ESA. Now, this is my view rather than the Committee’s view, but the concern was not about having a majority of councillors on a body with such a small membership; rather it was that there should not be a majority of councillors on the board of the ESA, regardless of its size. If the membership happened to be 21 instead of 11, I still do not think that there should be a majority of councillors. That view was shared by stakeholders galore. I propose that we leave out the phrase:

“with the small membership of the ESA".

4911. The Chairperson: And put in the word “and"? So, if the line read “Concerns that the requirement that ‘at at any time a majority of Members are councillors’ and the small membership of the ESA …"

4912. Mr Lunn: No, I am suggesting that we leave out the phrase:

“with the small membership of the ESA"

4913. and have the line read “Concerns that the requirement that ‘at any time a majority of Members are councillors’ and the requirement ‘that each Member has experience in a field of activity …"

4914. The Chairperson: OK. Are members happy enough with that?

4915. Mr O’Dowd: Will you read that back? Well, it is a concern for Trevor, so it is fair enough.

4916. The Chairperson: We would just remove the phrase:

“the small membership of the ESA".

4917. Are members happy enough that we do that? OK. I will take silence as consent. Are we happy enough with the page about membership?

Members indicated assent.

4918. The Chairperson: We move on to the next item in the table, ‘Committee’s and Delegation to Committee’s and Staff’. Are members happy enough? It states that:

“alongside a request for a worked up example of what the envisaged change in structure and approx. staffing levels would look like".

4919. I think that we all had issues about what the committee would look like and what its functions would be.

4920. Mr McCausland: Could we remove the apostrophes from the heading ‘Committee’s and Delegation to Committee’s and Staff’?

4921. The Chairperson: Yes, to keep it grammatically correct.

4922. If members are happy, we will move to the next section, ‘ESA to employ all staff of grant-aided schools’, which deals with clauses 3 to 12. The first line says:

“Concerns to address concerns raised by the GBA, NIVGSBA, NICCE and CCMS etc."

4923. We have put in “etc", but is it possible to list everybody who raised those concerns? Is that line all-encompassing?

4924. Mr McCausland: Those were the only organisations that I can recall.

4925. The Chairperson: Are there any more? I make that point just in case anybody else raised those concerns, but I am not aware of anyone else having done so.

4926. Mr Lunn: What is NIVGSBA?

4927. The Committee Clerk: It is the Northern Ireland Voluntary Grammar Schools Bursars’ Association.

4928. Miss McIlveen: If that is the list, we should just remove the “etc."

4929. The Chairperson: Yes, we do not need it.

4930. The Committee Clerk: “Concerns to address concerns" could read “Concerns to address issues" if members are minded that way.

4931. The Chairperson: OK. Are members happy enough?

Members indicated assent.

4932. The Chairperson: That brings us to page 3, which is still under the heading of ‘ESA to employ all staff of grant-aided schools’. A lot of it repeats the factual report by Hansard.

4933. Miss McIlveen: Equally, there are those who would not have a problem with that issue and who stated as much in their responses. They were quite definite that they did not have an issue with it.

4934. Mr McCausland: It may be useful, therefore, to include those groups.

4935. Miss McIlveen: It is not very balanced.

4936. The Chairperson: That is a valid point.

4937. Mr D Bradley: Before the list is completed, can we check the Hansard report to ensure that there are no other groups, other than those that are mentioned, that were concerned about that point?

4938. The Committee Clerk: Perhaps the Association for Quality Education (AQE) is an example.

4939. The Chairperson: I suppose the purpose of the table is to raise the concerns that people had. We were then to list all the issues on which people had agreement. That will probably be a fairly long list.

4940. Mr McCausland: On the other hand, other people’s concern was that the ESA should be a single employing authority. This is a pretty unique issue in that there were strong views on both sides.

4941. The Committee Clerk: There were 38 submissions in total, members. We had 13 evidence sessions. We tried to highlight the oral evidence and the Committee’s discussions on it. If you want the entire 38 submissions to be reflected, that can be done.

4942. The Chairperson: Yes, we do, with particular regard to that issue.

4943. Miss McIlveen: It is a huge issue.

4944. The Chairperson: It is an important issue. Michelle’s point is about balance. While concerns were raised about that issue, equally, many oral submissions were received from organisations and bodies that have no difficulty with it. Is it easier to include a final paragraph that would state as much?

4945. Mr Elliott: Yes. That is reasonable.

4946. The Chairperson: That would be fair. What would be the detail of that paragraph? Again, we do not want to hold onto the issue for much longer. In fairness, we have accused other people of not responding in time. We do not want to drag our feet. I do not want the issue to linger for another week. I want it to be dealt with today. A line could be inserted that states that during their presentations, other organisations and bodies did not raise concerns on that particular matter.

4947. Mr McCausland: They actually went further than that and said that they support the idea of a single employing authority.

4948. The Chairperson: It should be stated, therefore, that they did not raise concerns and that they support the idea of a single employing authority.

4949. The Committee Clerk: For instance, the Transferor Representatives’ Council (TRC) said that it supports it.

4950. Miss McIlveen: TRC, the unions and the boards all said that they support it.

4951. The Assistant Committee Clerk: Therefore, the line should state that the Committee is mindful that other stakeholders support the idea of a single employing authority.

4952. Miss McIlveen: That is fine. As long as there is balance, we will not be accused of taking one side or another.

4953. The Chairperson: It is a fair point.

4954. Mr Elliott: To be fair, Chairperson, officials know the line that we are getting at. There is no objection to it. Therefore, I am happy enough to leave that to them and to the Committee staff.

4955. The Chairperson: Are we happy enough?

Members indicated assent.

4956. Thank you for that.

4957. That brings us to page 4, which is a continuation of the issue. That line would go in at the end of the section that is entitled, ‘ESA to employ all staff of grant-aided schools’, and just before the start of the next section, which is entitled, ‘Transfer of Assets, Liabilities and Staff of Dissolved Bodies’.

4958. We will now look at that part, which starts at the bottom of page 4 and takes us through to page 5. I ask members to reflect on it, please.

4959. Mr Lunn: I do not understand what is meant by the words at the middle of the final paragraph on page 5:

“but until the matter is satisfactorily resolved".

4960. Is that what we mean, or do we mean, “in order that the matter can be satisfactorily resolved"?

4961. The Chairperson: It relates to points that were raised about the representative body. Therefore, it means until that matter is resolved.

4962. The Committee Clerk: The purpose is to allow the Committee time to come to a decision.

4963. Mr McCausland: The final sentence states:

“The Committee needs to consider the detail on these options".

4964. The options that are mentioned include a broader role for the non-statutory representative body. Reference is also made to an element of the education and library boards. Surely we are looking not just at those options but at other options to see how it might be done? Perhaps we should include the words, “on these and other options". The other option is simply to have a statutory body that would be representative.

4965. The Chairperson: So, we will include the words “on these and other options". Are we happy enough with that? Again, that is not being prescriptive.

4966. Mr McCausland: We are also awaiting information on what can be done to produce a statutory body that is truly representative. The other options are, for some people, second-best options.

4967. The Chairperson: That will be included in the letter. We have now reached the end of the table. Are Members happy enough?

Members indicated assent.

4968. The Chairperson: We are almost on time; we are doing well. I appreciate members’ indulgence. So that there is no confusion, members can, if they wish, remove those papers from their folders and return them to the clerks, and new ones can be produced. That is just for the good governance of members’ folders. I know that members have been very good at keeping their folders up to date.

4969. Mr Elliott: As a matter of practicality, could we have the updated versions of those documents emailed to us?

4970. The Chairperson: Yes, that is fine.

4971. We move to the departmental briefing on the education advisory forum. Chris Stewart is joining us again, as well as Eve Stewart. You are very welcome. I refer members to the distributed papers.

4972. Mr Chris Stewart (Department of Education): Good morning. On behalf of the team, I thank you, Chairman, for your kind words on the work that we have done in support of the Committee. We also heard the Committee’s comments on where we could, and should, have done better, and we are mindful that we still owe members some information.

4973. We look forward to receiving the Committee’s letter and will respond to it with alacrity. From your description of it, it sounds as if it will be extremely helpful, because it will make clear to us the areas in which the Committee wants further work to be done. That will help the Minister to respond to the Committee and, hopefully, reach the point where there will be consensus around at least some of the issues.

4974. My colleague Eve Stewart will give a short presentation on our paper on the education advisory forum, after which we will be happy to take questions.

4975. Ms Eve Stewart (Department of Education): I thought that today you would like to hear a different voice to Chris’s. [Laughter.]

4976. The Chairperson: We could not possibly comment.

4977. Mr C Stewart: Same tune, different singer.

4978. Ms E Stewart: When the RPA programme was announced in November 2005, it was stated that there would be a new statutory education advisory forum. The primary focus of the forum will be the provision of advice to the Department of Education and the Department for Employment and Learning on strategic issues in relation to the policy, planning and delivery of education at a very high level.

4979. The intention is not for members of the forum to lobby for their particular groups. The plan is that members will engage in open and robust debate and will strive to offer advice to both Departments that is representative of the consensus view of the forum. Members will not be there to represent their particular bodies; they will be there as part of a participative culture.

4980. The forum will be established as an advisory, non-departmental public body (NDPB), and it will have all the attendant appropriate governance arrangements. The legislative provisions to establish the forum will be in the second RPA education Bill. It is intended that the power to make regulations to cover more detail on the composition and role of the forum will also be included therein. At present, it is intended that the forum will be established at the same time as the ESA, on 1 January 2010. Of course, that will be subject to the timing of the second Bill’s passage through the Assembly.

4981. I will turn now to the structure and membership of the forum. One of the key considerations was the need to provide a balance between the customer side and the supplier side of education. The Department was also to keen to hear the voices of those who are not heard through any other formal mechanism. To ensure effective communications, we do not want an overly large body. It is proposed that there will be a maximum of 26 core members, along with a chairperson and a vice-chairperson. Neither the chairperson nor the vice-chairperson will have a vested interest in any education organisation here.

4982. The members will be drawn from three groups: the education sectors, the practitioners of education and the customers of education. I will not go into the detail of the proposed membership; that is contained in a table in our summary paper and in the policy paper.

4983. The chairperson and the vice-chairperson will be appointed by the Minister of Education in consultation with the Minister for Employment and Learning. The appointments will be in accordance with the Office of the Commissioner for Public Appointments (OCPA) principles. The other members will be drawn from the groups that they represent, and it is planned that OCPA principles will also apply to those appointments. It is proposed that members will serve a term of up to four years and that the term could be anywhere between two and four years to allow for a rotation of members.

4984. The ESA will not have membership of the forum, and it will not be involved in the development of the forum’s annual work plan. The forum will develop an annual work plan, which the chairperson will develop in consultation with DE and DEL. The ESA’s involvement in the development of policies will be at an earlier stage, when DE will consult the ESA to try to identify and consider practical implementation issues, which must be taken into account before a draft policy document is passed over to the forum for consideration.

4985. The budget for the forum will be very modest. It is not anticipated that the forum will cost a lot of money. The chairperson and the vice-chairperson will receive an annual allowance, and other members will receive travel subsistence and other reasonable expenses. It is not intended that the forum will have its own premises. It is anticipated that rooms will be booked at hotels and so on.

4986. The Department of Education and the Department for Employment and Learning want to ensure that the forum will bring added value to the policy-making process. When Departments give subsequent policy submissions to Ministers and various other people, they will include a copy of the advice that the forum has given to the Ministers and indicate how that has influenced the development of the policy.

4987. Finally, it is intended that the forum will be subject to informal review during its initial year of operation and, thereafter, at regular intervals to identify areas where changes might be needed, for example, in the groups that are represented on the forum.

4988. The Chairperson: Thank you, Eve. Obviously, we are aware of the thinking around the establishment of an education advisory forum. Policy paper 19 states that sectoral bodies are expected to highlight how the policies that are under consideration might affect their particular sector but that they are not to represent their sector. Given that, on the other hand, encouragement is being given to maintain sectoral bodies, how can it be ensured that self-interest will not be paramount in the advisory forum?

4989. Paragraph 6 of policy paper 19 states:

“However, it will be a unique source of advice in that it will be the only group mechanism that has a special advisory relationship with DE and DEL, set in statute."

4990. If a sectoral body raises a concern on a particular policy to the Department, but the advisory forum has met and come to some other conclusion, does the view of the advisory forum take priority over the concern raised by the sectoral body? In simple terms, is it possible for the advisory forum to gang up and leave one sector — whatever it may be — isolated, with its message unheard?

4991. Mr C Stewart: I think that the answers to both questions are fairly similar. There will always be an understandable tendency, particularly on the part of the sectoral members of the forum, to promote their own self-interests. Clearly, those members will be nominated by the sectors on the basis of their ability to reflect the thinking of those sectors.

4992. We would attempt to discourage that type of behaviour and encourage different types of behaviour by saying that the weight that we would attach to advice from the forum is likely to be directly proportional to the extent to which the forum is able to come to a consensus on matters. Therefore, if there is a broad consensus on an issue throughout the entire forum — which will cover all sectors, a range of practitioners and a range of consumers of education — the Department is likely to attach very considerable weight to its advice on that issue. However, a consensus such as that is not easily or often achieved. On the other hand, if the forum falls into the trap of simply producing a series of sectoral views without achieving consensus, then it is unlikely that the forum, as a mechanism, will add any value to our policy deliberations or that its advice will carry any weight.

4993. On your second point, it is, of course, important to allow room for an individual sector to take a different view if it feels compelled to do so. We would be worried if the forum ganged up on a particular sector, as you have described it, because we do not want there to be any unfair treatment. However, again, when it comes to us assessing the views that we receive, in general, a broad consensus view from the forum is likely to carry more weight than a minority view from a particular sector.

4994. The Chairperson: This is a personal comment, but if the education advisory forum were to become the Civic Forum of education, how useful and valuable would it be to the education sector? I am not asking you to pass comment on the Civic Forum.

4995. Mr C Stewart: I am relieved, Chairperson.

4996. The Chairperson: Given how the Civic Forum worked and the added value that it brought to whatever its purpose was, I think that people will be very cynical about whether a similar exercise in a very defined area such as education will bring any added value to the education system.

4997. Mr C Stewart: I understand those concerns. Without commenting on the Civic Forum, it is nevertheless an observable fact that on few occasions was the Civic Forum ever able to achieve the sort of consensus that we would want an education advisory forum to achieve. Given that we are dealing with the narrower, but nonetheless complex, field of education, we hope that the risk will be smaller.

4998. It is also incumbent on the two Departments, in setting up the forum and providing it with a secretariat— and I am sure that John and Alyn would agree that the secretariat of any forum or Committee plays an important role — to support the forum. We will not just leave the forum members adrift with that difficult challenge. Without in any way impinging on its independence, the Departments and the secretariat will need to support and advise the forum’s members and help them to reach views on those particular issues.

4999. We recognise that danger, which is why the Department’s policy paper refers to an early review of the forum’s effectiveness. If it fails to provide the clear, consensual advice that we seek, changes to it will be considered later.

5000. The Chairperson: The forum must demonstrably add value to the policy-making process and it is envisaged that it will hold the Department to account. The forum would have no comeback if the Department and the Minister set aside its views. There is no requirement for the Department or the Minister to take any heed of what comes out of the forum — it can be ignored.

5001. Mr C Stewart: That is correct, and the Department does not want to create a false expectation. As the policy paper states, the advice would be in no way binding. However, it would be incumbent on both Departments to feed-back to the forum. If the Department disagreed with advice, it would have to explain why clearly. That approach is essential and one to which both Departments would want to commit.

5002. Miss McIlveen: I want to know about the role of the Department for Employment and Learning (DEL), because the Department of Education is paying for and providing the secretariat for the service, even though Eve said that it will be a modest sum. What will DEL contribute to the forum and what will it get from the arrangement?

5003. Mr C Stewart: The potential for DEL to contribute to the costs has not yet been raised by the Department of Education, although the Minister may want to take that up with Sir Reg Empey. Our colleagues in DEL have been aware of this development from the outset and are broadly supportive.

5004. It is fair to say that they have not been as closely involved as we, the lead Department, have. However, they remain committed to the project, as they see value in it and regard it as a useful source of advice in areas of policy for which they are responsible. Without pre-empting ministerial discussions, there is an argument that DEL ought to contribute to the costs.

5005. Miss McIlveen: Is it not incredibly vague? At present, all we have is a requirement in statute.

5006. Mr C Stewart: That is something that Ministers must pursue. I am not aware that the Minister has formally raised it with Sir Reg, but she may wish to.

5007. Miss McIlveen: I also note that the Department of Education will have observer status, whereas DEL’s status is not defined in the paper.

5008. Mr C Stewart: If a member of the inspectorate performs the observer role, they could serve both Departments because the inspectorate works for three Departments — Education, Employment and Learning and Culture, Arts and Leisure. However, in addition to the observer, both Departments will have members formally appointed to the forum; therefore, DEL will be represented in that capacity.

5009. Miss McIlveen: How often will the forum meet?

5010. Mr C Stewart: It is envisaged that the full forum will meet six times a year, but that will depend on its effectiveness, on the work pattern that it develops and on the use that it makes of subgroups or subcommittees, which is difficult to gauge at this stage. However, most of the work is likely to be done in subgroups or subcommittees, which may meet much more often during the year, with their work signed off by meetings of the full forum on fewer occasions.

5011. Miss McIlveen: Are there any costings? Depending on outcomes, “modest" can become astronomical.

5012. Mr C Stewart: It is difficult to say at this stage. The Department has not produced a business case.

5013. Miss McIlveen: What about expenses?

5014. Ms C Stewart: We will have to pay close attention to expenses. A ballpark estimate off the top of my head — and it is no more than that — is £200,000 or £300,000. Even a small secretariat of three staff will quickly take costs into the realm of £100,000. As Eve said, it is not envisaged that the forum will have a headquarters or offices; it will use public-sector facilities or hire them if required.

5015. A budget of between £300,000 and £400,000, or perhaps higher, would not be out of the question.

5016. Miss McIlveen: Is a scrutiny mechanism proposed for the forum?

5017. Mr C Stewart: I imagine that the Education Committee would want to scrutinise the work of the forum and its effectiveness.

5018. Mr D Bradley: Point 8 of your summary of policy paper 19 states that one of the key considerations is to achieve a balance between the customer side and the supplier side of education. However, if children and young people and parents were taken as those who represent customers, only four members out of a total membership of 26 would represent customers. A representation of four customers out of a total of 26 members would mean that 22 members of the board were, with one or two exceptions, suppliers. How can you argue that you have achieved a balance between customers and suppliers?

5019. Mr C Stewart: That is a fair point. We are at the consultation stage on that, and we welcome members’ views on whether those figures are correct. We recognise the challenge; it is difficult to achieve a balance without making the numbers unworkably large. It is an accurate observation that the proposed number of customers for the board is low. We will have to put considerable thought into ensuring that the presence of children and young people, irrespective of numbers, is in no way tokenistic.

5020. The forum’s raison d’être will be to allow us to hear from those in the education system from whom we do not normally or easily hear. It is not difficult for us to hear suppliers’ views; we talk to them every day. However, we do not find it as easy to create mechanisms to hear the views of parents and children, and that is where the real added value of the forum will be. That adds weight to your comment.

5021. Mr D Bradley: You said that another key consideration is the need to hear the voices of those who are not heard through any other formal mechanism. On the same point, where is the opportunity for people who represent customers with special needs or disabilities or members of marginalised groups to have a voice in the forum?

5022. Mr C Stewart: That could be addressed in several ways. If the Committee felt that the suggested membership was not correct, that it was not broad enough or that more groups and participants ought to be identified, we would consider that. We also want to ensure that the mechanisms that we use for the appointments process and to encourage nominations for any composition of membership are broadly based. We want to ensure that people from the groups that you mentioned are aware of the process and are encouraged to make nominations.

5023. Mr D Bradley: In the designations that are set out in annex A of policy paper 19, there is no designation for special needs or disability or for marginalised groups such as Irish Travellers or the newcomer population.

5024. Mr C Stewart: That is correct; we have not specifically identified such groups on the consumer side, although we have identified them on the supplier side. We do not want to exclude them, far from it; we want to encourage those groups. If the Committee felt that the composition should be amended in that respect, we would consider that carefully.

5025. Mr D Bradley: I made that point in light of your comment that hearing the voices of those who are not heard through any other mechanism is a key consideration. Perhaps the Department will give more consideration to that area.

5026. Mr C Stewart: That is a fair point.

5027. Mr McCausland: The Civic Forum was mentioned earlier. Having sat through the Bill of Rights Forum, the word “forum" is indelibly etched in my memory — and not in a good way. How will you get two representatives for parents and two for children and young people?

5028. What constitutes “the sector"? A failure to identify was a fundamental flaw in the Bill of Rights Forum. Some small organisations felt that they could represent all the children of Northern Ireland; yet some of them persistently expressed partisan views. If that happened with this forum, it could create difficulties. How would the representatives for parents and children and young people be chosen?

5029. Mr C Stewart: It is very difficult to ask two parents and two children or young people to represent everyone in those groups. That is why Eve stressed the importance of the forum not only having a representative culture or ethos — if I may use that word — but a participative one. I have had some experience of identifying people who might be nominated to a forum and encouraging them to come forward. When I worked in the Office of the First Minister and the deputy First Minister, we had a forum of some 50 children and young people. We cast the widest possible net for nominations by encouraging young people in schools, youth organisations, faith-based organisations and churches to come forward.

5030. Mr McCausland: We are not talking about organisations that purport to represent the children’s sector.

5031. Mr CStewart: I am not talking exclusively about such organisations.

5032. Mr McCasusland: As long as it is inclusive; that is the key point.

5033. Mr C Stewart: We want the forum to be as broadly based as possible. We do not want any child or young person to feel that they have been overlooked or denied the opportunity to come forward.

5034. Mr McCausland: Therefore children from all backgrounds will be able to submit their names.

5035. Mr C Stewart: Yes.

5036. Mr McCausland: Who would select the representatives?

5037. Mr C Stewart: The Department.

5038. Mr McCausland: Will the same process be used to select representatives from the voluntary and community sector, the voluntary youth sector and trades unions? Will the Irish Congress of Trade Unions (ICTU) nominate someone or can any trade unionist put their name forward?

5039. Mr C Stewart: We will have to talk to the trades unions about that. I suspect that ICTU will be the most likely route, but we want to be guided by the trades unions.

5040. Mr McCausland: I have some difficulty with that, as, in recent months, some trades unions have expressed strong political views on issues that have nothing to do with trades unions: for example, the ICTU pro-Palestinian demonstration in Belfast city centre. That was an offence to many people because of the way in which it was carried out and the actions associated with it.

5041. Would it not be better to let all card-carrying trades unionists apply rather than allow a trade union that has a political aspect and that is not necessarily representative of all trades unionists and workers in Northern Ireland to nominate someone? If you asked a group whether it would prefer to nominate someone or to open the nominations up to everyone, I have a fair idea what its choice might be. If you leave the nomination with that group, you will get a predetermined outcome. Would it not be better to open the nomination up to all trades unions and let people apply in the same way as every other category?

5042. Mr C Stewart: I understand your point. However, before coming to a conclusion, we will take a view from the trades unions on how a trades-union nominee might be identified. We will make it clear to all potential members of the forum that, whatever their political views, the sole focus and function of the forum will be to provide advice on education policy to the two Departments.

5043. Mr McCausland: In the Bill of Rights Forum some people brought their political baggage to the table.

5044. Mr C Stewart: Of course that happens. We cannot expect someone who is nominated to the forum because they represent or have knowledge of a particular sector or component of education to leave their beliefs at the door. Nevertheless, in drawing up the operating rules and protocols for the forum, we will strive to make it clear that we are not interested in creating a body in which people advance or debate sectoral positions with a view to one prevailing over the other.

5045. We are looking for consensus-based advice to Departments. As I said, where that consensus can be found, the advice will carry weight; where it cannot, it is likely to carry very little weight.

5046. Mr McCausland: Would representatives from the community sector simply write to say that they want to be in the forum and departmental officials would interview them?

5047. Mr C Stewart: It is incumbent on us to have the broadest possible recruiting and notification arrangements. We would look to our colleagues in various statutory authorities, particularly in the Department for Social Development, where there are networks and channels of contact with a broad range of community organisations to advise us.

5048. Mr McCausland: The Bill of Rights Forum’s experience was that what emerges through the network organisations may not be representative of Northern Ireland as a whole. One could encourage people in the community sector, not all of whom belong to a network organisation. I regard community organisations as anything from a pipe band to an Orange Lodge, but they may not belong to NICVA. Umbrella organisations have an important role to play, but one cannot concentrate solely on them; membership of the forum should be open to anyone from a community organisation, including Church organisations.

5049. Mr C Stewart: I agree. There is no intention to be narrow or restrictive in any way.

5050. Mr McCausland: It should be done in a way that does not allow sectoral organisations to guide the forum in a particular direction.

5051. Mr C Stewart: I have no difficulty with that. Someone from an Orange Lodge, for example, would be in the forum because they would bring a community perspective on the consumption of education; they would not be there to represent the Loyal Orders or any other organisation of which they might be a member.

5052. Mr McCausland: I am simply making the point that an Orange Lodge is just as much a community organisation as Ballygobackwards community group.

5053. Mr C Stewart: Having community organisations on the forum is not to advance the cause of those organisations; it is to find a communication route for consumers of education. It is simply a means of contact or of identifying people who can play a role in a personal capacity on the forum.

5054. Mr Elliott: If the forum ever comes into existence, I wish it well. The Minister has not taken kindly to advice from other bodies in the Province, and I am not sure that this group will fare any better. I am not convinced that it will get off the ground or that it will be what I want it to be.

5055. Like Nelson, I want to ask about the appointments process. Would people have to apply under individual areas? Would someone from a commercial organisation apply under that area as well as under the area of voluntary and community organisations?

5056. Mr C Stewart: Yes.

5057. Mr Elliott: Would they submit two application forms?

5058. Mr C Stewart: We would not ask them to submit two application forms. We would ask anyone who applies to tell us what they could bring to the forum. An individual who felt that they could bring a commercial, an Irish-medium, community, teaching or parents’ perspective would add to the weight of their application.

5059. Mr Elliott: It will be interesting to see the appointments criteria.

5060. Mr C Stewart: I have no doubt that the Committee will want to scrutinise that.

5061. Mr Elliott: Can you highlight the areas where membership will come from the nominated sectors?

5062. Mr C Stewart: They are mentioned in table 7, but they are not exclusive.

5063. It is likely that most applicants representing Irish-medium education would be put forward by Comhairle na Gaelscolaíochta. However, that body does not have an exclusive right to nominate; others in the Irish-medium sector could put themselves forward.

5064. Mr Elliott: Therefore just because a sector nominates you does not mean that you automatically represent it on the forum.

5065. Mr C Stewart: That is correct.

5066. Mr Elliott: My understanding of point 9 on page 10 was that representatives would be appointed by their respective sectors. Is that not the case?

5067. Mr C Stewart: No. All appointments will be made by the Department. Nominations may come from sectoral bodies, individual members of the public or, indeed, anyone else; however, appointments will be departmental.

5068. Mr Elliott: In other words, the Northern Ireland Council for Integrated Education (NICIE) could nominate a person, but there could still be 10 other applicants from the integrated sector.

5069. Mr C Stewart: Yes. However, our intention is that the composition of the forum will be broadly based and, as far as possible, will reflect the composition outlined in the table. It is important to draw a distinction between illustrating the composition that we seek and the sources that we have identified as nominees while making it clear that appointments will be made by the Department.

5070. Mr McCausland: Therefore, even if the Irish Congress of Trade Unions nominates a trades-union representative, that does not stop Jimmy Brown, who is a sheet metal worker and a trades union member, putting forward his own name.

5071. Mr C Stewart: That is correct.

5072. Mr McCausland: The Department will consider all those applicants equally.

5073. Mr C Stewart: That is correct.

5074. Mr Elliott: Supposedly. I have heard enough, Chairperson.

5075. The Chairperson: That was not how it was normally done, was it?

5076. Mr C Stewart: We never had a forum before.

5077. The Chairperson: The forum is a non-departmental public body. At present, when a non-departmental public body is established, a nominee, say, John Smith, is put forward by the controlled sector’s representative body, for example, as it is one of the sectors that have been identified. However, if someone from the controlled sector put forward his or her own name, he or she would be considered equally.

5078. Mr C Stewart: Yes; there is no reason why not.

5079. The Chairperson: Therefore the nominating body does not have preferential treatment over the sector as a whole.

5080. Mr C Stewart: That is not what we propose. The alternative would be to give certain sectoral bodies or organisations formal guaranteed nominating rights in legislation. That approach is technically more difficult and would require us to give careful consideration to ensure that we do not fall foul of equality legislation or of the oft-mentioned section 6 of the Northern Ireland Act 1998.

5081. As we point out in the policy paper, sectors and groups change and new interests emerge. A degree of flexibility on the forum’s membership is needed to ensure that it continues to meet its core objective of being broadly based and giving us the broad range of voices that we need to hear. That is why we are not minded to give sectors formal, fixed nomination rights in statute. However, it is possible to do it in that way.

5082. Mrs M Bradley: Can you explain what you mean by “commercial organisations"? What organisations are you talking about?

5083. Mr C Stewart: We are likely to phrase that in legislation as, “organisations that represent the interests of industry, commerce and the professions". Although education is extremely important for its own sake, it is also important because it fuels and drives the economy; therefore we want to hear from those who steer the economy about whether our education policies deliver what they need. For example, we want to hear from chambers of commerce, chambers of trade, and representative organisations from any aspect of commerce and the economy.

5084. Mr B McCrea: The usual suspects.

5085. Mr C Stewart: I would not necessarily use that phrase, but it is a pithy description.

5086. The Chairperson: What autonomy will the forum have to determine its work programme and agenda? Would they be set by the permanent secretary, the Department or the Minister, or will the forum have autonomy to decide the issues that it wishes to address?

5087. Mr C Stewart: The agenda will be set by the two Departments. The expectation is that the forum will provide advice on matters that are referred to it by the two Departments; therefore it will not set its own work programme.

5088. The Chairperson: What would the forum do if it wanted to express a view on an issue that had not been referred to it by the two Departments?

5089. Mr C Stewart: The forum would simply not be permitted to advise on an issue that had not been referred to it by one or other of the Departments; that is not the policy intention. If the forum disagreed with the work programme or felt that it wished to advise on something that the Departments had not referred to it, it would be free to approach the Minister with that suggestion. However, it would be for the two respective Ministers to decide which topics they referred to the forum.

5090. The Chairperson: Thank you very much, Chris and Eve.

27 May 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:
Mr Chris Stewart (Department of Education)

5091. The Chairperson (Mr Storey): The Committee agreed at last week’s meeting to look in some detail at clauses 1 and 2 of the Education Bill, which deal with the creation of the education and skills authority (ESA), its functions, and the general duty of schedule 1, which deals with the ESA membership committee arrangements. We had also intended to consider clauses 3 to 12; however, after speaking to the Committee Clerk this morning I felt that we were trying to cram too much into too short a time. Unfortunately, the members of one of the parties are not present, which puts us in a slightly difficult position. Nevertheless, we should consider clauses 1 and 2 and schedule 1.

5092. At last week’s meeting we amended and approved a letter to the Minister regarding the Committee’s concerns and outstanding requests for information. In that letter the Committee made it clear that its preferred course of action is to reach agreement with the Minister and her officials on any amendments to the Education Bill. The letter also stressed the Committee’s urgent need to receive some of the information that is still outstanding, and we will await any papers in that regard.

5093. In fairness to the Minister and the Department, it would be worthwhile for the Committee to know whether the Department is to propose any amendments on which we can agree and work together. We still have no indication whether those will be made available to us by next week, but we are working towards that.

5094. Members and education stakeholders have expressed their concerns during our evidence sessions, and we have also had the benefit of a response by departmental officials to those concerns. However, I remind members that there is no guarantee that the Minister will propose amendments that address members’ concerns.

5095. The Committee should urgently consider the Bill and arrive at decisions on amendments. Given that the Committee has only five scheduled meetings before the summer recess, it is imperative that we commence our scrutiny; members should consider the provisions of each clause and express their views on what amendments, if any, they support. Members may want to suggest amendments as proposed changes in principle, rewording or additional wording. Moreover, members should consider what further information and clarification are required from the Department or stakeholders to satisfy our concerns.

5096. The Committee’s objective in today’s session and in further clause-by-clause sessions is to arrive at as clear a position as possible; that will allow the Committee to communicate its clear view to the Department and the Minister on appropriate amendments. If the Department and the Minister do not agree with the Committee, we will have to decide whether to pursue our own amendments. Having a clear view on those issues will allow us to draw up our own amendments for consideration.

5097. I am sure that all members have brought a copy of the Bill; if not, they will be marked down. Furthermore, I draw members’ attention to the spreadsheet that John, Alyn and their staff have prepared for us. Given the raft of information from oral sessions during the past weeks, I want to place on record the Committee’s appreciation of their work in creating a coherent document that we can follow logically.

5098. Members should mark clause 1, “The Education and Skills Authority", into their books — this is like a classroom — and return to schedule 1. I refer members to paragraphs 2(1)(b), 2(2)(a) and 2(2)(b) of schedule 1. The concerns about the membership of the ESA are outlined on page 1 of the table that is attached to the Committee’s letter to the Minister of the 20 May. Are members content to continue in this format?

Members indicated assent.

5099. The Chairperson: Clause 1(1) states:

“There shall be a body corporate known as the Education and Skills Authority (referred to in this Act as “ESA")."

5100. It would be useful to go through each line of schedule 1. I suspect that paragraphs 5 and 10 are standard inclusions in any schedule.

5101. Schedule 1(2)(1) states that membership of the ESA shall consist of:

“(a) a Chair, and

(b) not fewer than 7 or more than 11 other members appointed by the Department."

5102. The Association of Northern Ireland Education and Library Boards (ANIELB) and the Association for Quality Education (AQE) raised issues to which the Department responded thus:

“The Department notes the Association’s comments on the membership of the ESA. This matter has been raised by a number of stakeholders, and the Committee is familiar with the Minister’s position."

5103. The Department’s response continued:

“The AQE has expressed concern that the ESA will be a highly centralised organisation, and that this will impair its effectiveness in delivering key services. The Department emphasises that the ESA will be a single organisation, but with a strong and significant local presence. Back office functions will be centralised in the interests of efficiency and effectiveness. However, the main role of the ESA will be to provide front-line support services to schools and other education providers. These services will continue to be provided locally, and this will be the major factor in determining the structure of the organisation at local level."

5104. The spreadsheet also outlines issues that were raised by the Belfast Education and Library Board (BELB), the Western Education and Library Board (WELB), head teachers and the Northern Ireland Commission for Catholic Education (NICCE).

5105. Is there anything that the Committee feels should be amended or changed? I remind members that we are not taking a decision this morning; I just want to get a sense of members’ views on that element of the Bill.

5106. Mr Lunn: Although I have not studied the spreadsheet in great detail, it seems that all the witnesses had a problem with the proposed membership of the ESA, as a membership of between eight and 12, including the chairperson, did not seem sufficient to provide the necessary spread of expertise and experience. Some, although not so many, had a problem with the fact that a majority of members must be councillors. I have a problem with that aspect of the ESA’s membership, and I was beginning to think that perhaps I was not the only member to do so.

5107. As you said, Chairman, we are not going to make a decision today. If you asked me what I want, I could not tell you today, but I certainly do not want councillors to comprise the majority of the membership of the ESA. I have no problem with councillors having significant representation on the ESA; someone suggested 40%, which is fine.

5108. Mr D Bradley: What is the Department’s position on the size of the ESA’s membership?

5109. The Chairperson: Can we bring Chris Stewart in at this stage?

5110. The Committee Clerk: That has not been organised. If members wish to bring Chris in —

5111. The Chairperson: Chris, are you happy to come to the table?

5112. Mr Chris Stewart (Department of Education): I knew that I would not get a week off, Chairman.

5113. The Chairperson: We would appreciate it.

5114. Mr Lunn: I meant to ask whether particular bodies should have representation on the ESA as of right. There is an active lobby to have the Transferor Representatives’ Council (TRC) involved in the membership of the ESA, and I support that.

5115. Mr D Bradley: What is the Department’s position on the number of members of the ESA?

5116. Mr Stewart: The Department’s position is that the number of members stipulated in the Bill should stand; however, we made the Minister aware of members’ views. Trevor summed it up neatly: most, if not all, stakeholders who have given evidence to the Committee raised concerns about the number of members of the ESA and whether councillors should comprise the majority of its membership. The Minister is considering her position on those issues but has not yet indicated whether she is minded to make any changes.

5117. Mr D Bradley: Could the ESA be described as an arm’s-length body of the Department, in the same way as Sport Northern Ireland is an arm’s-length body of the Department of Culture, Arts and Leisure?

5118. Mr Stewart: I am not familiar enough with the relationship between Sport Northern Ireland and the Department of Culture, Arts and Leisure to say whether that is a good analogy. It is fair to say that it is an arm’s-length body; however, that is not to say that there will not be a strong measure of accountability between the ESA and the Minister. Given the importance of the public service that the ESA will be responsible for and the size of its budget and workforce, it may be an arm’s-length body but it will not be stand-alone.

5119. Mr O’Dowd: It is our view that there is a democratic imperative that elected members comprise the majority of the membership of the ESA. We remain to be convinced that the number of members of the ESA should be increased; we do not have a firm view about that as yet. Trevor asked whether representative bodies such as the TRC should have a place on the ESA as of right. We do not see the necessity for such a right; in any case, there are legal barriers to such a proposition.

5120. Mr McCausland: I am not hung up on numbers; I am open to persuasion on the issue. However, the notion that any particular group should have automatic representation on the ESA is an equality issue. If one group has automatic membership, others, such as the Catholic bishops, would say that they were entitled to a place as of right. That would lead to the entire membership being appointed, and there would be no open recruitment because no places would be left.

5121. Mr Lunn: That would depend on how many places there were.

5122. Mr McCausland: Five or six sectors will seek representation on the ESA, including the Irish-medium lobby, the integrated schools’ movement, the Catholic bishops and the TRC. We would get to a point at which there were only two or three places available to be filled by open recruitment. The role of the TRC and the Protestant Churches is a fundamental issue, but this is not the most appropriate way to address that.

5123. How will the Department ensure that political representation on the ESA, assuming that people are competent to serve on the body, reflects the political reality of Northern Ireland?

5124. Mr Stewart: Following advice from the Commissioner for Public Appointments, we understand that it is possible for the arrangements to be centralised under the merit principle but to allow for a degree of leeway. It is not a strict requirement to appoint members on nothing but merit; that is to allow a balance to be struck on gender, geographical and political representation. However, we cannot have an overt mechanism such as d’Hondt in the arrangements, with the explicit intention of achieving a political balance. That, ironically, would be unlawful.

5125. Mr McCausland: I have some concerns because that would depend on the goodwill of the person making the appointments — the Minister.

5126. Mr Stewart: Yes; it would be the Minister.

5127. Mr McCausland: After all, a Minister might not have the full confidence of the entire Assembly.

5128. Mr Stewart: I do not think it appropriate for an official to comment on that in relation to any Minister. With respect, I will decline to do so.

5129. Mr McCausland: I am only speculating that such a situation could exist. I am concerned that there is an understanding that that will be taken into account. The difficulty is that such an appointment process would depend on a trust and goodwill that may not exist.

5130. Mr Stewart: The Minister is aware that if the arrangements were based solely on the merit principle, the ESA could have an unusual gender, geographical or political membership. The informal advice that we have had, which we will follow up with formal advice from the Commissioner for Public Appointments, is that it is possible to construct appointment arrangements that allow sufficient leeway to manage the process so that we do not have a perverse outcome. There is a difference between that and including overt mechanisms to achieve a particular political or gender balance.

5131. Mr McCausland: You talk about perverse outcomes and outcomes that are not perverse. Would that cover party-political as well as broad political opinion? For example, all the unionist representatives could be drawn from one political party to the exclusion of another.

5132. Mr Stewart: I will answer that generally. The Minister is aware of the difficulty that would be caused if any particular composition of the education and skills authority did not lead to the broadest possible trust and confidence in the organisation in doing its job. However, it is possible, within the arrangements, to mitigate that risk, which is, as I understand it, the Minister’s intention.

5133. Mc McCausland: What would be required to enable appointments to be made under the d’Hondt mechanism?

5134. Mr Stewart: At the risk of giving you an answer that you have heard before, it would take a change to section 6 of the Northern Ireland Act 1998. The difficulty is that applying d’Hondt would amount to discrimination on the grounds of political opinion, whereas reserving a number of places for councillors does not; that would be discrimination on political status, which is not unlawful. Discrimination on political opinion is.

5135. You might ask how it is possible to use the d’Hondt mechanism as we do. The answer is that the d’Hondt mechanism is in Westminster legislation, which is not bound by section 6 as the Assembly is.

5136. Mr McCausland: I would like that issue to be explored further. An understanding is all very well, but if it is not written down in black and white it can be forgotten about. The issue of education, as the Committee is only too well aware, is controversial and contentious in many ways. It is of fundamental importance to our society; therefore we should consider a legislative way of ensuring that the membership of the ESA reflects political reality.

5137. Mr D Bradley: An education and library board has 35 members and covers a fifth of the area that the ESA will cover, why does the Department think that a third of the number that makes up an education and library board will be sufficient for the board of the ESA?

5138. Mr Stewart: A key factor that drove the size of the membership of education and library boards was that those bodies were intended to be representative from the outset. Therefore, in order to get sufficient spread it was necessary to have membership of that size to include local council, TRC and trustee membership; that is in the legislation. Since the ESA is not intended to be a representative body, its board or membership was intended to be small and of a size effective for the discharge of its business, as opposed to securing a broad representation of interested parties.

5139. Mr D Bradley: Since the ESA will have responsibility for education in all of Northern Ireland, it strikes me that 11 members will not be sufficient. It might be restrictive because it might be difficult to ensure that councillors have the required range of expertise. A bigger board would be desirable to allow for a greater range of independent expertise.

5140. Mr Stewart: That is a valid view that we have put to the Minister and which she is considering. We have included in the Bill a provision to enlarge the membership by means of an Order if it proves necessary to do so. Therefore, the choice is whether the Committee is satisfied with that fallback mechanism, which would allow us to enlarge the membership later if it was thought necessary, or whether the Committee wishes the Bill to be amended so that we can enlarge the membership from the outset. Either way, the Committee would be confident that the ESA would not be left with a membership that is too small to do the job, even under the legislation as it stands. Therefore, if the membership were too small, there would be a mechanism in place to make a rapid change and to appoint more members.

5141. Mr D Bradley: I agree that a huge membership could become cumbersome and might not help the smooth running of the organisation; however, too small a membership could create its own problems.

5142. Mr Stewart: That is correct, given the importance of the committee work that will be done in the ESA.

5143. Mr D Bradley: There is a balance to be struck between a huge membership and one that is too small, and I am not sure whether the membership proposed in the Bill strikes that balance.

5144. Mr Lunn: We are constantly told that we are creating the biggest ever organisation in Northern Ireland with the smallest ever board. I assume that the composition of the education and library boards has a statutory basis; it is set up in legislation. That is what we are trying to achieve here. How can legislation give organisations such as the TRC membership of boards as of right but we cannot construct a Bill to do the same thing? We are constantly told that the Bill refers to education Orders going back to the 1950s. It would be much easier if the slate were wiped clean and a brand new Bill introduced, because we could all understand it better. That said, the Bill could refer to the legislation that formed the education and library boards; in fact, it probably does.

5145. Mr Stewart: You raise several points. The watershed is the Northern Ireland Act 1998, which defines the legislative competence of the Assembly; therefore any legislation made after that date must comply with its provisions. Education and library board members are appointed in accordance with the Education and Libraries (Northern Ireland) Order 1986, which predates the Northern Ireland Act 1998. Therefore, there are provisions in legislation that were lawful and proper at the time but for which the Assembly could not legislate in a similar way today.

5146. It is possible to cleave existing provisions on the statute book, and they continue to have effect. That is the solution that we are following as regards maintaining the TRC guaranteed membership of school boards of governors. That is possible only by leaving the existing legislation intact.

5147. There would be many advantages if we were to wipe the slate clean, as you say, and start with a clean piece of legislation. However, one of the downsides would be that we might wish to retain some provisions in current legislation but be unable to do so because we could not re-enact them.

5148. Mr Lunn: I am not saying that there is any suggestion of obstruction here, but we seem to be using previous legislation to prove that we cannot do what appears to be clearly right.

5149. Mr Stewart: Whether an issue is clearly right or not is a matter for —

5150. Mr Lunn: Clearly desirable, then.

5151. Mr Stewart: Whether something is clearly desirable is a matter for the Committee to comment on; it is not for me to comment on. I can merely advise you on what is legally possible and what is not. Some things that were possible in 1986 are not possible today.

5152. Mr Lunn: We are drafting legislation here. Anything is possible if we put it into the Bill.

5153. Mr Stewart: With respect, that is not quite correct. This is one area where that is simply not possible. The Northern Ireland Act 1998 and the Westminster Parliament remain sovereign in that respect, and that has placed quite significant restrictions on the legislative competence of the Assembly and the administrative competence of Departments in what we are permitted to do.

5154. That issue was explored in detail by colleagues in the Department of Culture, Arts and Leisure in relation to membership of the library authority. They received very clear advice from senior counsel that it simply was not possible to employ a d’Hondt-type mechanism when deciding the membership of the library authority. Exactly the same situation applies here.

5155. Mr Lunn: I am not suggesting d’Hondt. This is getting even more complicated. It is Westminster’s fault that we cannot do what appears to be clearly desirable and wanted by the population and the Committee.

5156. Mr Stewart: That is a fair point. As I told the Committee before, section 6 of the Northern Ireland Act 1998 is an extremely blunt instrument. I am not certain that those who drafted section 6 had this particular situation in mind. Nevertheless, the effect of the section is quite clear.

5157. Mr McCausland: The difficulty is that schools are very different from libraries. When one has discussions about libraries, one does not get quite the passion and range of representations that we are getting here. One does not have integrated libraries, Catholic libraries, Irish-medium libraries or whatever. There are just libraries. Therefore, this is a totally different and special situation.

5158. We should not rule out, or allow others to rule out, the possibility of legislative change at Westminster. If that is what it takes to get education in the right shape in Northern Ireland, and if it is in order to advance the principle of equality, then how could they possibly stand it the way of that? It would seem the most natural thing for us and for all parties to ask for, and for Westminster to deliver, because it would advance the cause of equity across the education system.

5159. The Chairperson: The way that the Bill is numbered is an absolute minefield. The simplest approach is to turn to page 31 of the Bill and the heading “Membership". Paragraph 2(2)(b) states the Department will secure:

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

5160. How do we determine whether a person has experience in a field of activity relevant to the discharge of the functions of the ESA? Is it simply enough that they were a teacher, worked for an education and library board, or were a school caretaker? What would be the definition of experience?

5161. Mr Stewart: There would not be a formal definition that would go any further than that. However, the three examples that you gave would be very weighty examples and would count as very significant experience. Likewise, so would, for example, experience of running a large organisation, delivering a public service, managing a large budget, managing a large workforce and managing or delivering youth services. Therefore, it is a very broad provision.

5162. We must attempt to ensure that we address one of the issues that Trevor raised. Although the ESA will have a small membership, it should have the skills, experience and competence that are necessary to manage the delivery of a key public service. There are many different routes by which the necessary experience can be gained. We do not want the Bill to be too prescriptive in tying that down.

5163. Mr Lunn: Chris has just mentioned six areas of expertise. However, there are only 12 places on the ESA, and seven of those will be filled by councillors.

5164. The Chairperson: Let us set aside the seven councillors for a moment. What will govern the appointments of the other four members? Will it be experience of education, of finance, of running a —

5165. Mr Stewart: The same experience requirement applies to all members, both councillors and non-councillors.

5166. The Chairperson: Therefore, in that respect, each individual is a member of the overall 11, rather than of the groups of seven or four members.

5167. Mr D Bradley: I sit on the Committee for Culture, Arts and Leisure, and in the aftermath of the difficulties experienced by the Northern Ireland Events Company, we did a lot of work on arm’s-length bodies. A protocol is now in place whereby members of the boards of arm’s-length bodies — and the ESA is a type of arm’s-length body — must undergo rigorous training to ensure that they are fit for purpose. They must have the proper expertise to perform the required functions and to operate an organisation efficiently and effectively.

5168. You said that you will initially identify people who have the relevant and appropriate experience. Does the Department view compulsory training as an important element of membership of the ESA board?

5169. Mr Stewart: Yes, absolutely. It is essential that the ESA board is fully trained and competent and that it takes account of the issues that you have raised. For example, it is essential that one of the members is in a position to chair the audit and risk committee, which I am sure the organisation will have. That person must be experienced and competent and have an understanding of audit and financial management and the very issues that you considered in respect of the Northern Ireland Events Company.

5170. The Chairperson: Chris, I appreciate your giving evidence today, because you were not briefed that that would happen.

5171. Mr Stewart: I had an inkling. [Laughter.]

5172. The Chairperson: It never crossed my mind to ask you until I saw you this morning.

5173. In the table of stakeholder comments, the South Eastern Education and Library Board (SEELB) said that:

“Until the standing rules and orders (SROs) for the new ESA are available it is extremely difficult to make meaningful comments. In the interests of operational efficiency the Board believes the size of ESA should not exceed 12 members, and also welcomes the provision for delegation of functions in 8 (1)."

5174. Will the standing rules and orders be agreed by the ESA itself, or will they be separate from what we are considering in the schedule?

5175. Mr Stewart: They are separate in that they are not part of the schedule. However, the standing orders of the ESA will be subject to the Department’s approval.

5176. Mr Lunn: On the issue of membership, paragraph 2(1)(b) of schedule 1 states that the ESA should have:

“not fewer than 7 or more than 11 other members, appointed by the Department."

5177. Will the Commissioner for Public Appointments have some input? Does “appointed by the Department" actually mean appointed by the Minister?

5178. Mr Stewart: We are indivisible. The Minister is the Department, and the Department is the Minister.

5179. Mr Lunn: A lot of the comments refer to the Minister, but the Bill refers to the Department. Could the Bill refer to the Department in conjunction with the Commissioner for Public Appointments?

5180. Mr Stewart: That would be an unusual approach. Those particular appointments will fall within the commissioner’s formal regulatory framework. The Minister has already made clear that the appointment arrangements will take full account of the principles in the commissioner’s guidance. The approach that we adopt will be whatever the Commissioner for Public Appointments deems to be best practice.

5181. Mr Lunn: As with any other senior public appointment, when the Department produces a list of potential appointees, that must be scrutinised by the Commissioner for Public Appointments. If the commissioner did not agree with that list or felt that there had been some sort of political bias, to what extent would the Minister have to take note of that advice?

5182. Mr Stewart: The commissioner will scrutinise the arrangements and the process that we follow. The Minister may wish to have an observer from the commissioner’s office involved in the arrangements, although she has not decided on that yet. That is done from time to time, and it is a positive step. It is helpful for Departments to have someone from the commissioner’s office present to keep officials right as they operate the procedures. There will be scrutiny, and if the commissioner feels that something that has been proposed or carried out is sub-par or suboptimal, she will quickly make the Department aware of it.

5183. Mr Lunn: The Commissioner for Public Appointments recently gave evidence to the Public Accounts Committee in relation to the NI Events Company and similar conflicts of interest. She gave the impression that she was quite frustrated by her lack of independence. I detected that she thought that her advice was not always followed and did not have to be followed. That is why I am asking the question.

5184. Mr Stewart: It is difficult for me to comment on the legislation governing the powers of the Commissioner for Public Appointments. That is for my colleagues in the Office of the First Minister and deputy First Minister to comment on. However, the Minister has emphasised that she regards it as extremely important that the arrangements that are put in place follow best practice, and are clearly seen to do so. I have no doubt that the Minister will take seriously any advice that the commissioner offers on how to go about that.

5185. Mr D Bradley: Did you say that the councillors who would be members of the ESA would reflect the political make-up of Northern Ireland?

5186. Mr Stewart: I cannot go so far as to say that. The merit principle will be central to the arrangements. The arrangements will be based on establishing criteria against which candidates will be assessed. If I can oversimplify it, there will be a pass mark, and a pool of potential candidates who have exceeded that pass mark or met the criteria will be determined. It is not necessary for the Minister to follow strict merit order in appointing candidates if that would produce a result that might be perceived as being inequitable in some way. Although the merit principle must always be uppermost in the Minister’s mind, she can select people for appointment from that pool in order to try to achieve a balance, or better balance, of political viewpoints. However, the Minister is not trying to achieve one particular outcome or a membership of a certain shape.

5187. Mr D Bradley: Under the current draft of the Bill, it is not inconceivable that the majority of councillors on the board could be from the same political party as the Minister. The challenge role of the board members would be severely lessened under those conditions. Surely that would be a cause for concern for everyone. Is there no mechanism in place for ensuring that that does not happen?

5188. Mr Stewart: It would be the Minister’s intention to ensure that that does not happen. Theoretically, the arrangements could mean that the board could comprise 12 men or 12 women from one town, or 12 people from one political persuasion. However, the Minister is on record as saying that it is important to have local democratic accountability in the membership. She is also on record as stressing the importance of equality. I am sure that the Minister will take those factors into account when she is selecting people for appointment to the board.

5189. Mr D Bradley: The legislation will not apply to the current mandate, but it will apply to future mandates. Therefore, surely we need to have a guarantee in the legislation that a situation will not arise whereby the challenge function and role of the board is in any way compromised.

5190. Mr Stewart: I am not exactly sure what you mean by the challenge role of the board. It will not be the board members’ function to challenge the Minister; it will be the other way around. There will be an accountability relationship between the ESA members and the Minister. I do not see it as a challenge role.

5191. Mr D Bradley: Surely the board will have the role of challenging the senior officials in the ESA.

5192. Mr Stewart: Yes, very much so.

5193. Mr D Bradley: If the situation arose where the majority of members were from the same party as the Minister, that challenge role might be lessened.

5194. Mr Stewart: I am not certain that that would be the case. One of the things that we have attempted to do in the legislation is to make clear the relationship between the Minister of the day, the Department and the ESA. There have been times in the past when our colleagues in the education and library boards have seen that relationship differently to how we see it. They do not necessarily agree that there is a clear line of accountability between education and library boards and the Minister. What view one might take on that is a matter for oneself, but we have sought to put the matter beyond doubt in the legislation. The relationship between the ESA and the Minister will be one of accountability.

5195. The Chairperson: The Committee is now inquorate, but we are not taking any decisions, so we can continue.

5196. Mr Stewart: I am happy to be co-opted.

5197. The Chairperson: We thought that you were already an honorary member.

5198. Irrespective of who the current Minister is or who the future Minister will be, surely a mechanism must be put in place to give people confidence that the board members will not simply be appointed on the whim of the Minister of the day. The Minister continually tells us about equality, so, if this is about equality, why is there a fear of putting equality legislation in place to deliver that intention? I have heard many times in this Committee and in other places that it does not matter how well intentioned people are, if something is not written into the Bill, it cannot be guaranteed.

5199. We go back to the core issue, which is section 6 of the Northern Ireland Act 1998. If we want to get to a place where everyone believes that we are operating in a fair and equitable manner, surely the legislation should be changed to remove that legal impediment. That was a sticking point in the Culture, Arts and Leisure Committee, and you were right to refer to that, Chris. They kept saying that they could not do a particular thing because of legislation in Westminster, but no one ever went to Westminster and asked for it to be changed. Nelson made the point that we do not have maintained libraries, Irish-medium libraries or independent libraries; we just have libraries. However, different sectors deliver education here; it is a completely different ball game. There are concerns about that.

5200. I am interested in members’ comments, because I want to draw a line under the matter at this point. We have had a good discussion, but I want to ask members some questions. Although we cannot take a decision on the matter, is there a view that we should consider an amendment to section 6 of the Northern Ireland Act 1998 in order to reach a position in which proper mechanisms and controls are in place that assure everybody that the system is fair? I ask that question in light of comments about how appointments would be made. Another issue is the overall number of ESA members; should there be 12 or another number? Of course, the first part influences the second, because if section 6 is changed, the d’Hondt principle could be used to appoint the elected representatives.

5201. Mr Stewart: I could assist members in responding to your point. The need to amend section 6 would arise most sharply if there was a desire to use a mechanism such as d’Hondt or a desire to meet the TRC request for it to be guaranteed membership of the board.

5202. It may not be necessary to amend section 6 if one adopts the approach that Nelson suggested, which reflects a broader requirement for the membership to be representative of the community in the way that the membership of the Equality Commission and the Human Rights Commission is required to be. I add the caveat that I would need to talk to the lawyers about that matter. However, it does not strike me that that idea would cause as many problems with section 6 as some other approaches would.

5203. That crystallises the issue, which is: does the Committee want the membership of the ESA to be representative, or should membership be driven by competence or the need to ensure that it is able to manage the services for which it is responsible? The Bill’s approach has placed an emphasis on ensuring that the ESA has the skills and competence to run the service while recognising the importance of equality, trust and confidence. The alternative approach would shift the emphasis: if the desire is to, first and foremost, create a body that is representative and that, as a secondary requirement, has skills and competence, the legislation would be framed very differently. The Minister’s approach is very much to place competence at the top of the list and to ensure that the board is fit for purpose.

5204. The Chairperson: Are you saying that we could change the emphasis and avoid amending section 6?

5205. Mr Stewart: I think that it may be possible, but not quite in the way that was suggested by some stakeholders. The TRC made the point that it is seeking —

5206. The Chairperson: It is seeking representation.

5207. Mr Stewart: That is simply not possible.

5208. The Chairperson: The Committee recognises the problems that that would create.

5209. Mr Stewart: There are more than three Protestant Churches; we cannot simply pick out three.

5210. The Chairperson: Moreover, there is a raft of other organisations that could say that if one body has a right, they also should have a right. That could start a legal debate that would also touch on their place on education and library boards.

5211. Mr Stewart: It is possible, and Nelson summed it up neatly earlier. It is probably possible — if that is not an oxymoron — to draft a provision that would allow for a broadly based representative body. Whether that is a wise idea is another question.

5212. Mrs O’Neill: There must be some balance. The body needs skills and competency, but it must also be representative. The challenge is to incorporate those elements. Experience in the field is relevant, but the body needs to be representative, too. That is not easy.

5213. Mr Stewart: It is not an easy one. It is a political question as to whether or not the membership of public organisations ought to be representative in character or more executive in character. The Bill’s approach is to take the executive line.

5214. Mr D Bradley: I would be more concerned about the range of expertise in a body with just 11 members. That number would be restrictive.

5215. The Chairperson: My next comment in no way casts aspersions on my council colleagues — I should say our council colleagues, and then we will all be condemned. If membership of the ESA is limited to seven or 11, the spread of expertise will also be limited, particularly given the number of council representatives that will sit on it.

5216. Mr Stewart: There is no doubt that the larger the membership, the easier it will be to ensure that there is the necessary spread of competence. The Minister’s view is that it is possible to ensure that level of competence with a membership of 12.

5217. Mr D Bradley: I would have thought that a membership of about 20 would allow for a range of expertise.

5218. The Chairperson: Would you still favour a split whereby the majority of the members would be elected representatives?

5219. Mr D Bradley: Yes.

5220. The Chairperson: Do members have any other views? Trevor, you have rehearsed your point well, but I am not stopping you from repeating it.

5221. Mr Lunn: I am not going to repeat it. However, if section 6 of the Northern Ireland Act 1998 had to be tinkered with in some way and Westminster could see that we were being constructive and trying to make progress — after all, this is a major piece of legislation and we are talking about a big problem — I would have thought that Westminster would look benignly on our request as long as we were not trying to break the rules completely. The impression seems to be that asking Westminster to make a change to basic legislation is a terrible thing. Nowadays, legislation can be passed in a couple of days. Look at the how quickly the criminal justice legislation went through Westminster — if you blinked, you would have missed it.

5222. The Chairperson: Their minds are on other issues at the minute.

5223. Mr Stewart: I do not emphasise that point because I think that it presents any sort of insurmountable technical challenge; technical challenges can be overcome quite quickly, and, indeed, frequently are. The issue is the significance of section 6 of the Northern Ireland Act 1998. It stems directly from the Belfast/Good Friday Agreement and is rather central to it. Any change to it would be very significant. It is not for me to anticipate what might be said at Westminster, but in view of the seriousness and significance of that section, I am sure that the Secretary of State would want to consider any change to it very carefully. There may well be a particular purpose in mind here for the education sector and that may have a broad measure of support, but the Secretary of State would also have to consider what further ramifications or unexpected consequences there might be were any change to be made to section 6.

5224. The Chairperson: On a previous occasion, you mentioned two other pieces of legislation that dealt with the promotion of Irish-medium education and integrated education. I think that they flowed from the Belfast Agreement. Are they covered in section 6?

5225. Mr Stewart: No, they are not; that is a different matter. A provision in the Education (Northern Ireland) Order 1998 places a duty on the Department to encourage and facilitate Irish-medium education, the origins of which can be traced back to the Belfast Agreement. The similar provision for integrated education pre-dates it.

5226. The Chairperson: It will take us some time to cover the next provision in schedule 1, and we must move on. However, I would like members to consider the connection between paragraphs 2, 7 and 8 of schedule 1.

5227. It might be helpful to move to page 31, which is the start of schedule 1, and go through any issues of concern. There are no issues with paragraph 3, which deals with the tenure of office of the ESA. There is obviously an issue around remuneration and allowances for members. Everyone will be paying due regard to that, I hope.

5228. I hope that it will be well scrutinised and open to public inspection.

5229. After remuneration, allowances and pensions of employees, we come to committees, and there is an issue concerning the link between the ESA board and the establishment of committees; to date, we have not had a clear indication about the shape of the committees. Members will know that this matter was referred to in the letter that the Committee agreed to send to the Minister. The Minister’s view is that local committees will comprise elected representatives and that the relationship with the local ESA unit will not be specified in legislation. Members will recall that the reference to an ESA footprint and other such aspects must be flexible to allow the ESA to develop and transform itself.

5230. We shall leave our considerations for the time being, and committees will be our starting point when we return to the Bill. Thank you, Chris, and I thank members for their indulgence. Once again, I thank the staff for their invaluable contributions in preparing the paperwork to enable us to do our work.

5231. Are members happy to work on, even though we do not have a quorum? No decisions will be made; we will just be hearing presentations.

Members indicated assent.

3 June 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Basil McCrea
Mrs Michelle O’Neill

Witnesses:

Mr Tom Flynn
Mr John McGrath
Mr Denis McMahon
Mr Chris Stewart

Department of Education

5232. The Chairperson (Mr Storey): I welcome the departmental officials to discuss area-based planning, which is part of the second education Bill. I also welcome staff from Hansard, who have made the journey down.

5233. Before the Committee are the deputy secretary of the Department of Education, John McGrath; the honorary member of the Committee, Chris Stewart, who comes before us regularly; Dennis McMahon, head of the investment and infrastructure division; and Tom Flynn, head of programme delivery support. Tom has been with us before. You are very welcome.

5234. Mr McGrath will give us a brief overview of area-based planning before we ask questions. I remind members that we are under a time constraint and that the school has laid on lunch for us. Some pupils also wish, for reasons that I do not understand, to meet Committee members. We do not want to curtail that in any way.

5235. Mr John McGrath (Department of Education): Thank you, Chairman. My colleagues and I are glad to be before the Committee today in different surroundings; we are also glad to discuss the policy and legislation proposals for area-based planning.

5236. The Department last appeared before the Committee to discuss area-based planning on 11 February 2009, when it circulated papers that dealt with issues that were raised during the consultation exercise on the draft policy paper. At the beginning of April 2009, the Department sent the Minister’s updated policy paper to the Committee. It also forwarded two tables to the Committee showing how it proposed to address the issues highlighted in the consultation exercise and by members of the Committee.

5237. Following my contribution today, Chris will speak briefly but in some detail about the legislative proposals for area-based planning. However, before that I will make some comments on the key issues that have been outlined and the changes that have been made to the policy paper since the February meeting. The Department reported in February that responses to the consultation were broadly supportive of the approach outlined in the draft policy paper. However, the consultation exercise raised issues of roles and responsibilities, community planning, development proposals and the definition of areas. During that briefing, the Department outlined its likely response to those issues, and the two tables sent to the Committee at the beginning of April set out how the Minister proposes to deal with those issues.

5238. Members raised additional points at the February briefing, and I will now touch on the response to those points, which have been set out in the updated policy paper. First, members asked how the post-primary exercise would operate if full area plans were in place. The policy paper makes it clear that the post-primary exercise will provide information for the full statutory area-based planning process. Furthermore, the five local area groups involved in the post-primary exercise reported to the central group in April and that group’s report to the Minister is expected in the next week or so. No doubt, the Committee will hear more about that process at the margins of its sessions today.

5239. Committee members asked about the road map to achieving full area plans across the region and what would happen with the development of proposals in the interim. The policy paper explains that the migration process to put full area plans in place across the region will take time, with some areas requiring, or deserving, attention earlier than others. Furthermore, the policy paper and the legislative proposals that Chris will cover make it clear that all development proposals must be published through the education and skills authority (ESA) when it is established. Chris will elaborate on the distinction between the handling of development proposals under the ESA when area plans are or are not yet in place.

5240. The Committee also asked for more clarity on the roles of the various bodies in the process. The policy paper includes an expanded section on that issue, and explains that the ESA will have the statutory role in preparing area plans. The various interests and sectors will also have an involvement through representation in the ESA-led area-planning groups, and there will be wide consultation on draft plans.

5241. In February, the Committee also made the point that the sustainable schools policy should be reflected more in the area-based planning policy paper. Furthermore, it highlighted the fact that many rural schools that fall beneath the 105-pupil threshold will face a challenge in area-based planning and that that should be explicitly acknowledged in the policy paper. Moreover, the Committee questioned the non-weighting in the sustainable schools policy criteria and how smaller schools could be protected if those schools had a plan that was not accepted by the ESA.

5242. In examining those points, the updated paper refers to several policies and states that the sustainable schools policy, although not the only policy, is a key one. The Department believes that the singling out of enrolments in the paper will require expanding on other criteria and policies, some of which may change and are covered elsewhere. Furthermore, the updated policy paper acknowledges that small schools present particular challenges and that their position will need to be examined carefully, taking account of their local circumstances. In particular, the ESA will be asked to justify how it applies the sustainable schools policy criteria in each circumstance, and how it will ensure that it is consistent with the policy’s recognition of the need for transparency in decision making.

5243. The updated paper acknowledges that small schools are needed, that they must be supported and that there should be local flexibility in defining solutions. The challenge, in many cases, will be to come up with those flexible solutions.

5244. That was a brief run-through of the papers that have been sent to the Committee. I hope that those papers, and today’s presentation, will reassure the Committee that we have considered all the issues that were raised during the consultation and at the Committee meeting. I will ask Chris to complement my remarks by dealing with the proposed legislation.

5245. Mr Chris Stewart (Department of Education): Thank you, John. Good afternoon, members. Our second paper focuses on the proposed legislation and is a companion piece to the policy paper. I will outline briefly the provisions that we believe are necessary to give effect to the policy that is set out in the first paper, although I will not rehearse all the detail. I apologise that, as usual, it is very dry and technical; that is the nature of legislation.

5246. We will be happy to take questions on any aspect of the proposed legislation, but in my presentation I will focus on three key areas that will be of interest to members and the approach that the legislation will take on those issues: what do we mean by an area plan? What is the legislative process for developing an area plan? Who is involved, how will area plans be controlled, and what is the effect of an area plan once it has been drawn up?

5247. The policy paper that John presented describes the concept of an area plan. In the legislation, an area plan will be defined as having three components. The first is an assessment of need for all education in a defined area — primary, secondary and special education, youth services, and what we refer to in legislation as educational services but which are normally known as early years. The second component is an assessment of the adequacy of provision of education in an area. The third component is the developments that are necessary to close the gap between the first two components and to ensure that that need is adequately met. That is how we will define an area plan in the legislation.

5248. Areas will not be defined in the Bill but in the area plans. Each plan will define the area to which it refers, which will allow for a flexible and evolving approach. As John said, it will take time to achieve full coverage of Northern Ireland with area plans, but we will be able to do that without having to change primary legislation each time practice moves on. A pattern of plans will develop over time, and for that reason the basic planning function of the ESA will be defined as a power rather than as a duty in the legislation. That recognises the fact that it will take time before we have complete coverage.

5249. The second key issue is the legislative process for developing area plans, establishing who will be involved, and the means of controlling the process. Under the provisions of the Bill, the role of the ESA will be to develop plans while the role of the Department will be to consider and approve them. The ESA will be empowered to develop new plans for an area as well as revise, revoke or replace them. That will allow, for example, for defined areas to be changed. We may start off with a pattern based on local council areas, but, over time, as planning develops and becomes more sophisticated, we may move to what we call travel-to-education areas, with a more detailed modelling of education need and uptake. The Department may approve a plan that is submitted by the ESA with or without modification.

5250. The ESA is important, but it is not, of course, the only participant. The involvement of education interests is very important; the consumers and the providers of education — pupils, parents, staff and governors — are as important, if not more so, than the sectoral representative bodies that we often talk about. We have listened carefully to the views of stakeholders and Committee members on aspects of the first Education Bill, such as employment, and we recognise the need to provide clarity and certainty about the roles of participants.

5251. The aim of the area planning legislation will be to strike the right balance. On the one hand, the role of education interests must be real and meaningful and must be guaranteed in legislation to ensure trust and confidence in the arrangements; on the other hand, we must not be over-prescriptive on operational matters, and we must not turn the sectoral bodies in particular into statutory planning authorities.

5252. There will be only one planning authority: the ESA.

5253. The legislation will achieve that balance with powers and duties for the ESA to involve education interests in the preparation of plans. The arrangements that we have in mind are set out in the policy paper and in the operational guidance that goes with it. We envisage a duty in the legislation to involve sectoral bodies and a power to involve other interests. Members may ask why a different approach is taken for each type of interest. The answer is that although there must be a clear policy commitment to involve all interests, it would not be practicable to have an absolute duty to involve every child, parent, staff member, and every governor in the planning arrangements.

5254. The second key issue is control over the process. In addition to its formal approval function, the Department will exercise a proportionate degree of control over the ESA in the discharge of its planning functions. That will be primarily by means of guidance to which the ESA will be obliged to have regard. However, it is likely that there will also be reserved powers for the Department to make regulations on the form and content of plans and on the arrangements for consulting and involving stakeholders.

5255. There will be a power to direct the ESA in the exercise of its functions if necessary. It is important to emphasis that we regard those as reserved powers. The Department will hold the ESA to account; however, it will intervene only when necessary, and it will not micromanage the ESA in the discharge of its role.

5256. The third key issue is what effect an area plan will have when it is drawn up. Area plans will be central to determining the future pattern of development and the allocation of capital resources. The effect of the provisions is that no development proposal will be approved that does not conform to an area plan. That will apply equally to development proposals of any nature for any school in any sector. In particular, it will include proposals to transform a school to acquire integrated status.

5257. The test of conformity will be central to the legislation, and it will develop as the planning process develops. As plans become more sophisticated and detailed, the rigour of the test will increase, and the latitude for development proposals will decrease. Therefore, an initial plan without much detail could be satisfied by various development proposals. However, a more detailed plan would be more difficult to satisfy, and a smaller range of proposals would receive approval. If no area plan is in place, the current process for considering and deciding on development proposals would apply, as set out in article 14 of The Education and Libraries (Northern Ireland) Order 1986.

5258. Proposals that do not conform to an existing plan would be rejected at an early stage before consultation. Proposals that pass the test of conformity are not guaranteed approval; they will go through the normal consultation and consideration process, which will include an assessment of how well they would meet the assessed need as set out in the plan. Plans will be used to assess and prioritise development proposals and the allocation of resources to make the best use of them.

5259. Drafting of clauses to give effect to that is well advanced, and although it needs more work, we hope, subject to ministerial approval, to let members see the wording of the clauses within the next two weeks. Chairman, that has been a quick gallop over the ground. I will stop at that point for members’ questions.

5260. Mr D Bradley: Good afternoon, gentlemen. Area-based planning needs to operate within defined geographical boundaries and known pupil populations, and there must be flexibility along the borders of those areas. I believe that you said that in your paper. That might be particularly relevant to Irish-medium and integrated education. It implies, however, that area-based planning will lead to the end of open enrolment. You will want to contain pupil populations between area-based planning boundaries. At present, the transfer system is unregulated, which means that pupils may move into areas other than those in which they live or attend primary school.

5261. The movement of pupils from primary to post-primary schools might go unchecked in future. The system of unregulated transfer will surely present difficulties for area-based planning because it will be more difficult to check the number of pupils in an area, and that will create tension. Will that problem be resolved if the legislation enables open enrolment to be discontinued?

5262. Mr McGrath: I do not think that there is any commitment to address the policy of open enrolment and how that is linked specifically to area-based planning. You are right about how we define particular geographical areas; at present, we cast a fairly wide net when looking at pupil movement to post-primary schools in Belfast.

5263. We will have to define areas by taking account of circumstances and the existing pattern of pupil movements. We will just have to deal with those difficult issues, Dominic. We must plan provision, because we cannot stop until there is an entirely new or different pattern of pupil movement. We must accommodate that by having sufficient flexibility in the arrangements, in the early days at least.

5264. Most of the physical plans, such as those for school modernisation, are already in place; however, it will be several years before the new plans for provision emerge. By then, I hope that those plans will be able take account of a more settled environment as regards pupil movement from primary to post-primary schools.

5265. Mr Stewart: Denis and Tom may wish to say a bit more about the practice of area planning as it develops. There are no plans to change the legislation on open enrolment. However, as planning becomes more sophisticated and our ability to predict pupil movement becomes better, it will be easier for us to reflect and accommodate the consequences of open enrolment in area planning.

5266. Mr D Bradley: Surely, open enrolment flies in the face of area-based planning as described in the briefing paper. Does it not make sense to end open enrolment in order to assist area-based planning?

5267. Mr Stewart: Whether we should end open enrolment is a separate policy issue. At present, the policy is one of open enrolment. I accept that there is a tension between open enrolment and area planning. As John said, it is incumbent on us to design area-planning arrangements that recognise and cope with that tension. It is not beyond the wit of man or of the ESA to develop a model of education choices and to ensure that area planning reflects that.

5268. Mr D Bradley: Is there a sufficiently sensitive system of prediction to accommodate that?

5269. Mr Stewart: Tom may wish to say a bit more about that. We recognise that the model has room for development.

5270. Mr Tom Flynn (Department of Education): Open enrolment and parental preference are key policy principles in the education system. We have to work around a raft of education policies, some of which lend themselves particularly well to a central planning approach and some of which do not. We need to recognise that. I call area planning an optimisation technique; it is not really about maximisation, because the policies make it more difficult to take a centralised approach.

5271. As regards geographical areas, patterns of pupil-to-school flows have been relatively stable. Therefore, it is possible to envisage area-planned boundaries that internalise those flows in a geographical area. The wider an area is extended, the more flows will become internal to the area plan.

5272. As regards projecting need, it is possible to envisage and define an approach that allows for, if you like, the import and export of pupils into an area. We need to distinguish between the need to delimit a geographical area for the presentation of an area plan, because area plans are like pieces of a jigsaw that make up the region.

5273. There is an analytical need to define hinterlands in a way that completely covers pupil flows to individual schools. For instance, post-primary schools will have much larger geographical hinterlands than primaries, and different sectors will cover different geographical hinterlands. I see no contradiction in the requirement to account for all pupil flows at an analytical level and the need to have a boundary to define an area plan so that we have a set of plans.

5274. The same issue arises in relation to community planning and proposals for new local government districts. People will flow across those boundaries and avail of services in different government districts, but, from a planning perspective, a boundary must be drawn. Therefore, I do not see that open enrolment should be an issue.

5275. Mr B McCrea: Despite what I have just heard about optimisation, I come back to Dominic’s point that open enrolment is incompatible with area-based planning, because moving parents and children around leads to a completely different result. To say that, in Civil Service-speak, parental preference and open enrolment generate a “certain tension" is an understatement.

5276. Your presentation informed me that the ESA retains absolute power to direct and that the Department retains absolute power to direct the ESA if it is not right, despite the ESA Bills’ promises to maximise local autonomy. I see nothing in this proposal that gives any comfort to schools or sectors; that reinforces my view that the ESA is a Trojan horse that is designed to let the Department dictate to all and sundry that they must do what the Minister wants. Would the witnesses like to disabuse me of those views?

5277. Mr McGrath: I will comment on them. The Department runs a major public service, and it is important that we plan for its provision by developing a sustainable pattern of services that are sensitive to local needs and deliver good value to the taxpayer. That principle applies across major public services. The Bain Report suggested that we must adopt a strategic planning approach that had hitherto been absent. That is what area-based planning is about.

5278. The ideal planning in a command-and-control system is to tell everyone the school, hospital or benefits office to which they must go so that one can plan around that. However, that is not how it works here. People’s preference for the hospital, clinic or school that they wish to attend must be accommodated. Therefore we do our best to make a strategic assessment and plan provision around it.

5279. Despite managing the tensions created by the scope for individual preference and the need to develop a long-term template, it would be a gross dereliction of duty towards the education sector to suggest that the Department should not take a strategic approach to assessing need and planning long-term provision. Most arguments for area-based planning came from the Bain Report, which was an impressive piece of work that was carried out independently of the Department.

5280. The scope for maximised autonomy relates to how the schools work from day to day and nothing in this works against that. However, a strategic-planning approach is needed, whether the project involves education, health or infrastructure services. I am curious about how that could be abandoned in the long-term as we plan an investment strategy and a robust and sustainable estate. Some issues of pupil flow, for example, could be a question of whether a new school should have one more classroom, not whether the school should be built at all.

5281. That is where the issues about the degree of sophistication in the plan come from. Concerns about open enrolment and individual preferences are not reasons not to adopt strategic planning. They simply demonstrate that there are challenges to be faced.

5282. Mr Stewart: Your question linked two policies in a way that they are not linked. As John McGrath said, the policy of accountable autonomy is designed to ensure that school leaders, boards of governors and school principals are allowed to take responsibility for the day-to-day running of their schools. The separate area-based planning policy has never been predicated on the suggestion that schools would, themselves, plan the future provision of schools. That is the arrangement that we presently have, and it has led to what has at times been adversarial competition between schools and sectors. I do not think that the evidence suggests that that has always resulted in the best use of resources or the most sustainable delivery of education provision for learners, which is why, in order to ensure both efficient and effective outcomes, as John said, we must move to more strategically planned education provision, particularly given the resource restraints that we presently face.

5283. Mr B McCrea: We had two presentations before this one, the first of which dealt with specialist status for schools. This school, St Paul’s High School, decided to seek that status. Under your proposals, the school would not be allowed to make that decision unless it falls in with area-based planning. The second presentation was about learning communities working together, and one of the key messages to emerge was about the need to deal with things delicately and proportionately and to bring people with us. Your plan to dictate to schools will work against such co-operation.

5284. Moreover, although I accept that it is good to have a plan and that we should attempt to work matters out, neither the will of the Department of Education, the Minister, Professor Bain nor anybody else must be allowed to prevail; the democratic will of the people must prevail. If you attempt to push those outcomes through, contrary to what parents want for their children, you will have a revolt on your hands. I tell you here and now, everything that I have heard suggests that your proposals are a tool to do just that and that you plan to go through the normal consultation process without listening to what we say. If there is no democratic involvement in the development of area-based plans, the project is doomed to failure. The fact that you are asking us to give you the tools to do that reinforces our concerns. Although those tools might be used benignly we cannot trust that, in the wrong hands, they will not be used against us. As things stand, we are opposed to them.

5285. Mr Stewart: You will appreciate that I cannot comment on the hands that might use the tools. However, we are satisfied that those are the tools that are required to do the job. I think, perhaps, that you overlooked part of the arrangements that we described. We think that it is very important that both consumers and providers of education play a key role in shaping the plans. That is why it is extremely important that the legislation includes provisions to underpin that role.

5286. As I said, we have listened carefully to the Committee’s concerns that, when framing the first Bill, we did not give sufficient clarity and certainty to the role of stakeholders in relation to employment arrangements. We have received that message, and it is important that the legislation gives clarity and certainty about the role of educational interests when drawing up area plans. Therefore, it is not the case that area-based plans will suddenly appear out of the sky and be dropped or forced on learning communities or anybody else. Indeed, we hope that learning communities will play a central role in developing area-based plans. Schools leaders are the best-placed people to advise on, and shape, the future configuration of the education that is to be delivered in their communities.

5287. Mr B McCrea: That is a bit like gun manufacturers saying that guns are neutral and that it does not matter which side has them. Whoever gets control of the set of tools that you produce will be able to do with them as they please. My point is that there must be some way to achieve acceptable buy-in from all sections of the community, including elected representatives. You said that you have listened to people, but I do not think that those who have a democratic mandate are fully involved in those proposals.

5288. I will say what everyone knows: people talk about consultation, but it is a joke. One gets informed, but one does not get a chance to change what is going on. Until and unless we discover a way to have genuine engagement with communities, those proposals will not work. I do not need to go on because I have made my point quite forcibly.

5289. The Chairperson: Following on from that point, there are concerns about article 14 and article 101 of the Education and Libraries (Northern Ireland) Order 1986, and about the issue of control and absolute authority resting with the ESA or the Department. Will there be any appeal mechanism at all? If a decision comes from on high or a conflict arises whereby there is a clear difference between what has been proposed at a local level and what the ESA or the Department sees as the preferred route, is there any arbitration or appeal other than simply to say that it exists in legislation in article 14 or article 101?

5290. Mr Stewart: You have anticipated my answer.

5291. The Chairperson: That is why you are an honorary member of this Committee.

5292. Mr Stewart: It is contained in article 101. Article 101 is an extremely important mechanism, and sometimes we overlook the most important half of it. We focus on the first half of the article, which provides the opportunity for the Department to direct the ESA, or, at present, the education and library boards, if the Department feels that, for whatever reason, they are not pursuing an appropriate course.

5293. However, the second half of article 101 is, perhaps, more important. That is the mechanism that allows someone who is aggrieved by something that has been done to challenge that action. If the complaint is upheld, the Department is then legally obliged to direct the ESA or education and library board to remedy the matter.

5294. The thinking behind that is to have an accessible mechanism for stakeholders to challenge actions of the ESA without having to resort to, for example, a judicial review, which, although an effective mechanism, is not terribly accessible to education stakeholders. Article 101 provides that accessibility but is just as powerful as the judicial review mechanism in that the directions can be enforced by the courts.

5295. The Chairperson: The key words, surely, are “if the complaint is upheld". Therefore, if the Department deems that a complaint is not worthy of being upheld, how does one challenge that? There would still be the same area of conflict in that the Department says that it listened to your concern and believes that you have a reasonable case, but it will not uphold your complaint. Therefore, one is no further forward.

5296. Mr Stewart: We are, perhaps, getting into the realms of the democratic process. We, as officials, have to operate within the policies and legislation on which legislators and politicians decide. If the complaint is that the legislation is wrongly framed, the Assembly, not us, will decide on that. If the complaint is that the policy is wrong, the Assembly and politicians will direct a change on that matter. However, once policy is set and legislation passed, it is our job, and the job of the ESA, to operate the legislation and to give effect to that policy. It is not for us to take a view different from that taken by the Assembly.

5297. The Chairperson: The key issue, therefore, is to get the policy and legislation right. That is why we have a lot of work still to do.

5298. Mr McGrath: The proposals are the building blocks, the lyrics. The melody, I agree entirely with Basil, is how these matters are implemented. We are talking about a process that will involve the ESA, in consultation with different stakeholders, having to work up draft proposals, which will go out for public consultation.

5299. I suspect that that will be a challenge to the education system as a whole, because it will involve not simply sectoral interests; it will involve, as Mr McCrea put it, consumers. At times, the public view might well not be the same view as that of the education providers. The ESA will then have to come to a judgement in finalising its proposals. There might be difficult issues such as the sustainability of small schools, and the ESA will have to come up with ideas.

5300. If the ESA then submits a plan to the Department and Minister for approval that is the subject of debate, discussion or controversy, the Department and Minister, in considering whether to approve the plan, would want to take soundings on it. In certain circumstances the Department may wish to consult again, if hot issues are involved. That is the democratic process, and that is what happens in many other areas. Before any legalistic processes are begun, that is what will happen. There will probably be issues of viability in some cases, and the conclusion may be that a school does not have a future in the long term because it is not sustainable and no one has come up with a solution.

5301. My suspicion is that the process will be very open, with more public debate than is perhaps usual in the education sector. There may well be some tensions between the stakeholders, who are, in a sense, the providers of the system, and the consumers, who will get more of a say, and rightly so. That will be a challenge. Although there are basic legislative datum points, there will also be an accompanying behavioural process that will prove a challenge to everyone.

5302. Mrs M Bradley: You say that small schools should be supported when they are needed for an area. Is there a need for a rural factor in funding to ensure that the schools that are removed from the main hubs are consistently supported?

5303. Mr McGrath: Although not directly related to the matter you raise, there are issues around the funding formula, and we are currently working on proposals for a review of that formula to take account of such issues. The funding formula will be under constant review, but it is safe to say that, with the constraints on expenditure in the future, the cost-effectiveness of certain patterns of revision will also have to be considered. We cannot plan for a pattern of provision that we cannot afford. Increasingly, questions related to sustainability will also have to involve a consideration of cost-effectiveness. A funding formula may fund the school, but it could be argued that once the per capita funding has gone over a certain threshold, it is not a good use of taxpayers’ money.

5304. Mrs M Bradley: So, in the meantime, the teachers and partnerships in the learning communities will have to soldier on and struggle in whatever way they can to gel together and collaborate. They are not able to do it.

5305. Mr McGrath: Funding is something that will be considered. The area-planning process will give rise to challenges in many areas around small schools. The issue will be whether one can come up with solutions that would sustain those schools in collaboration with others, in federated models with others, or in shared governance arrangements. Those are all possible ways of dealing with the challenges that will arise. Once those are dealt with, the Department may then need a funding formula that takes account of the fact that there are smaller units.

5306. In some cases, the conclusion may be that a school is simply uneconomical, not sustainable in education terms, and may well not have a future. Those are the issues on which the ESA will have to make judgments and submit its views to the Department. That is why I made the point at an earlier meeting that the solutions in each area will not necessarily be the same; much depends on the circumstances involved.

5307. Mrs M Bradley: You said that consumers would have to be consulted on area planning. By consumers do you mean the young people as well as their parents? A lot of young people know exactly what school they want to go to, and they want to choose that school. Will they be listened to?

5308. Mr McGrath: The Department and the Minister envisage that the area-planning process will take account of the views of local communities, and, in particular, pupils, parents and families. It will be a broader debate than has perhaps been the case in the past, because there may well be some tensions between what the consumers — kids and their families — want and what providers want. That may prove to be a challenge for all education stakeholders in the future, and there may well be disagreements about preferred patterns.

5309. For that reason ESA will be involved in a process at a local level that includes local consultation, local engagement and local meetings, which has not been the case to date. That will provide a context for the mechanical legislative process that we are setting out and will address some of the issues about which Basil is rightly concerned.

5310. Mrs M Bradley: So the young people will have their say as well as the parents; that is fine. Thank you.

5311. Mr Lunn: I do not share Basil’s fear and trepidation about the consultation process, because, in my view, the biggest risk is that this country will eventually drown in a sea of consultation. Consultation to the nth degree is quite normal, and the process will take place on this issue just as it does in all other fields of Government. I do not share the fear that the consultation will be held and then ignored and that we will be dictated to. Basil’s problem is that he does not trust the person at the top of the pyramid — the Minister — to do the right thing.

5312. Basil has a habit of using the word “we" in Committee meetings. In the previous evidence session, he said that we will try to do something about the transportation problems for learning communities, and that is fair enough. That is not a party position, but a sensible proposition that members can all support. However, I want to make it absolutely clear that when he says that we have fears about what is happening — appearing to indicate the Committee — that is a party position, not the Committee’s position. If we took the views of everyone sitting around this Committee table, we would find that members have different views, including much lower levels of suspicion about what is going on. Some elements distrust the whole ESA process and the Minister in particular. We do not all share that distrust.

5313. Mr B McCrea: May I respond as the comment was about me directly?

5314. The Chairperson: Yes, briefly.

5315. Mr B McCrea: I am sorry if my command of grammar has let me down, but I want to make it clear that as far as the issues that we are talking about here are concerned, I am speaking on behalf of the Ulster Unionist Party. I am surprised that Trevor does not understand that because he has been at a number of meetings with me. I will be careful to make a point on the particular matter discussed because there are fundamental differences between the approaches that Trevor and I take. He is quite entitled to his approach. If there is any ambiguity on that, I am happy to clarify it.

5316. The Chairperson: Thank you.

5317. I thank members, and I also thank the Department officials for their help today.

10 June 2009

Members present for all or part of the proceedings:
Mr Trevor Lunn (Acting Chairperson)
Miss Michelle McIlveen (Acting Chairperson)
Mrs Mary Bradley
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr Chris Stewart
Mr Jeff Brown

Department of Education

5318. The Acting Chairperson (Miss McIlveen): The Committee now moves to the scrutiny of clauses 1 and 2, schedule 1 and clauses 3 to 12. Members are thin on the ground this morning, and the spokesmen — and “spokesmen" is the correct word — from the Ulster Unionist Party, the DUP and the SDLP are absent. Are members content to continue with the clause-by-clause scrutiny, even though it may be deemed inappropriate to make decisions in the absence of those members?

Members indicated assent.

5319. The Acting Chairperson: Several papers have yet to be forwarded to the Committee from the Department. Although Chris Stewart is not here in his capacity as a witness, are members happy for him to aid us in our deliberations?

Members indicated assent.

5320. The Acting Chairperson: Chris, you are more than welcome.

5321. Mr Chris Stewart (Department of Education): My colleague Jeff Brown is with me today.

5322. The Acting Chairperson: Members will recall that at its meeting on 27 May 2009 the Committee began its detailed scrutiny of clause 1, which creates the education and skills authority (ESA); and schedule 1, which deals with the ESA’s membership and committee arrangements, among other matters. The Committee considered clause 1 and discussed in some detail schedule 1(2), which deals with the membership of the ESA. Members had no comments on schedule 1(3) to schedule 1(6). The Chairperson reminded members to consider their position on the make-up and role of local committees before the next meeting.

5323. I propose that the Committee continue its scrutiny of the remaining paragraphs of schedule 1 as well as clauses 2 and 3 to clarify our position on them.

5324. I remind members that, having heard many stakeholders’ concerns and the Department’s response to them, the objective of the session is to obtain clarity on members’ views; in particular, whether they are content with the clauses or whether they would like them amended. Members may wish to express that as proposed changes in principle or suggested rewording or additional wording; they may request additional information or clarification as a matter of urgency from the Department or from stakeholders in response to their concerns.

5325. Schedule 1(7)(1) states:

“ESA may establish committees"

5326. There is no requirement in paragraph 7 or elsewhere in the Bill, as far as I am aware, for the ESA to establish either local or any other kind of committees, although the Minister and officials said that it is the intention to create local committees. The Department of Education’s response to the Northern Ireland Council for Integrated Education (NICIE) submission was that although the ESA’s committees and local units will be a key part of the organisation, it was not the Department’s intention to specify the detail of committee arrangements in the Bill. The Department is preparing a paper on local committees, which was to have been with the Committee three or four weeks after the Department’s letter of 5 May. However, it has not yet arrived. Is there any further information on it?

5327. Mr Stewart: We hope that the paper will be with the Committee next week.

5328. The Acting Chairperson: The Committee does not know the content of the paper. However, if the Department’s position continues to be that the committee arrangements should not appear in the Bill, are members content with such an approach? Would they wish the Bill to require the Department to create and fix the number of local committees or spell out their role and function and what regard the ESA and its local manager and delivery units should have to local committees? It depends on whether we want to go into such detail.

5329. Another approach would be the inclusion of an enabling provision for the Department of Education to make regulation covering the composition, role and operation of local committees. The mechanism that the Department of Education proposes is similar to what it proposes for the education advisory forum. A component for that could include a timing requirement, possibly linking the commencement of the Bill to the making of the regulations. Members may also wish to consider whether such a regulation should be subject to positive or negative approval by the Assembly. Have members views on that paragraph?

5330. Mr Lunn: Four words seem scant preparation for committees and their duties. Is there a comparison with what happened with the Library Authority?

5331. Mr Stewart: Such wording is by no means unusual in review of public administration legislation. It would be unusual to specify in primary legislation the subregional or local organisation of a regional body, although that is not the case with the Housing Executive or the Police Service. I understand that the Police Service legislation requires a subregional structure, but does not specify what that structure might be. For example, it is regarded as an operational matter for the Police Service to determine the configuration of the various divisions in the service. Likewise, the Housing Executive’s local structure is based on regions, divisions and local offices, but that is not specified in legislation.

5332. Mr Lunn: Should an enabling provision be inserted in the Bill to allow the Department to make regulations?

5333. Mr Stewart: If such a degree of control were considered necessary, that would be a possible approach. However, the Department will always have the power to direct the ESA if it felt that the ESA was falling short or taking a fundamentally wrong approach on local structure. An enabling provision for regulations would simply be a more specific means of doing the same thing.

5334. I take the Acting Chairperson’s point about linking the regulations to the commencement arrangements overall. However, it would be necessary at least to commence the powers to make regulations so that those regulations were brought into operation when the ESA comes into existence. Making the commencement arrangements under such an approach could become complex and would have to be thought through carefully.

5335. Mr Lunn: Are you happy with the provision as it is? I do not have a firm view on it.

5336. Mr Stewart: The happiness, or otherwise, of departmental officials is not important. [Laughter.] It is the Minister’s view at present that the provisions should remain as drafted.

5337. Mr O’Dowd: Is there any legal impediment to changing schedule 1(7) from “ESA may establish committees" to “ESA will establish committees."?

5338. Mr Stewart: No.

5339. Mr O’Dowd: Without going into the details of what the committees will be, would that be possible?

5340. Mr Stewart: Subject to legal advice, I do not see that being a problematic change.

5341. Mr Lunn: Can I take it that the ESA cannot operate a nationwide system without local committees?

5342. Mr Stewart: It would be extremely difficult for it to operate effectively without local committees. Without such committees there would not be the necessary local input from elected representatives and stakeholders to allow the organisation to be sufficiently in touch with what it needs to do.

5343. Mr Lunn: I agree with John’s suggestion that 1(1) should be changed from “ESA may establish committees" to “ESA will establish committees."

5344. Mr O’Dowd: The Committee should check the legal advice on that change. Sometimes changing a small word in legislation can make a huge difference.

5345. Mr Stewart: It can indeed. I suspect that the draftsman might prefer “ESA shall establish committees" rather than “ESA will establish committees". He will also advise the Department of any other changes that may be required to be made to the legislation.

5346. Mr Lunn: Here we go again.

5347. The Acting Chairperson: Will that information be included in the paper that the Committee will receive from the Department next week?

5348. Mr Stewart: If the Committee wishes, the Department can suggest that to the Minister.

5349. The Acting Chairperson: Are members content for that suggestion to go to the Minister?

Members indicated assent.

5350. The Acting Chairperson: Schedule 1(7)(2) makes the membership of any committee of the ESA subject to the approval of the Department. Are members content with that approach? It is linked to our previous discussion on committees.

5351. Mr Lunn: Am I reading schedule 1(7)(2) correctly? It states that:

“A person who is not a member of ESA shall not… be appointed to a committee of ESA."

5352. The Acting Chairperson: In full it states that:

“A person who is not a member of ESA shall not, except with the approval of the Department, be appointed to a committee of ESA."

5353. Mr Stewart: That is a fairly standard provision. It is intended to allow for the committees of the ESA not to be exclusively composed of full members of the ESA. Rather, the provision inserts a requirement, as Trevor correctly pointed out, for departmental approval if the ESA wishes to appoint someone who is not a full member of the ESA to a committee.

5354. There will be what one might regard as wholly internal committees in the ESA. For example, every non-departmental public body of this nature would have an audit and risk committee, but that is an internal matter, and the ESA will decide which of its full members will be members of that committee. It would not be required to seek departmental approval for such appointments.

5355. Mr Lunn: Yes, but we are discussing local committees. Schedule 1(7)92) —

5356. The Acting Chairperson: It deals with committees that are much broader than the local committees.

5357. Mr Lunn: It would make more sense to me if it did not say “not".

5358. Mr Stewart: That provision allows for the full range of the committees that the ESA may require, both those that one would expect at the headquarters of a regional organisation, as well as local committees.

5359. Mr Lunn: Does:

“A person who is not a member of ESA"

5360. mean that a member of those seven to 11 people at the top of the tree cannot be appointed to a sub-committee?

5361. Mr Stewart: They can, but only with the approval of the Department.

5362. Mr Lunn: OK. “except with the approval of the Department". Does that mean that the Department has to approve every member of the ESA’s sub-committees?

5363. Mr Stewart: Yes. That is not an unusual approach. Since the Department will be giving the ESA £2 billion of taxpayers’ money, it has a strong interest in who that body appoints to look after those funds.

5364. Mr Lunn: Why is that decision left with the Department rather than the ESA?

5365. Mr Stewart: The ESA will decide whom to appoint to committees. However, the appointment of people who are not members of the ESA will be subject to departmental approval. That is not unusual, and, indeed, I am not aware of any organisation that does not have a similar requirement.

5366. The Acting Chairperson: Are members content with schedule 1(7)(2)?

Members indicated assent.

5367. The Acting Chairperson: Schedule 1(7)(3) provides that the ESA may pay to members of its committees who are neither members nor employees of ESA such remuneration and allowances as ESA may, with the approval of the Department, determine. Are members content with that provision?

Members indicated assent.

5368. The Acting Chairperson: Schedule 1(8)(1) permits the ESA to delegate any of its functions to any committee or employee of the ESA; 1(8)(2) permits a committee of the ESA to delegate any functions to any employee of the ESA; and 1(8)(3) makes such a delegation of functions subject to law and to any regulations that the Department may make under schedule 1(8)(4).

5369. Such regulations would enable the Department to require prescribed functions of the ESA to be exercised on its behalf by a prescribed employee of the ESA, and it would allow the Department to regulate the ESA’s appointment of an employee for the purposes of exercising such functions.

5370. Are members content with that approach or is further clarification required? Would members prefer the functions to be specified in schedule 1(8) or are they content to let the Department deal with them in regulations?

5371. Mrs M Bradley: We should go with your suggestion.

5372. Mr Stewart: Such detailed specification would be most unusual in either primary or subordinate legislation. Schedule 1(8) is a standard paragraph with a standard approach to the internal governance of a non-departmental public body. We do not envisage the power to make regulations being used very often, but I will give an example of a situation in which it might be used.

5373. The ESA will have a director with responsibility for children’s services. I am not saying that we would, but, in certain circumstances, the Department might want to ensure that that member of staff took the lead role in child protection issues, perhaps in liaison with other public authorities. We might also wish to ensure that the holder of that post is suitably qualified and experienced in child-protection matters. If necessary, we could prescribe that in regulations under schedule 1(8)(4)(a) or schedule 1(8)(4)(b).

5374. It would require a great deal of additional detail to try to specify precisely the role of a local committee in either primary or subordinate legislation. That would be a very unusual approach, and not one that I recommend.

5375. The Acting Chairperson: Will you provide a breakdown of the nature of the regulations?

5376. Mr Stewart: I imagine that the regulations will be very short; they would simply identify the posts for which we want to prescribe duties and the qualifications that the post holder should have.

5377. The Acting Chairperson: Is there any information about the powers?

5378. Mr Stewart: I am sorry; I do not quite follow the question.

5379. The Acting Chairperson: Will you explain what you said in advance of that?

5380. Mr Stewart: If we felt it necessary, the regulations could apportion functions and duties to the ESA’s senior staff or specify that a post should be responsible for child protection, for example, rather than leave it all to the ESA.

5381. If we wished to be particularly directive, we could specify all the posts and functions and all the qualifications that all post holders must have. I do not envisage the Department having to do that.

5382. Mrs M Bradley: The Department again uses the word “may" rather than “can". I do not believe that that shows that the Department is disposed towards taking action. The word “may" is not strong enough.

5383. Mr Stewart: I will convey the Committee’s views to the Minister. It is not for me to encourage the Committee one way or another, other than to say that that would be a most unusual approach.

5384. The Acting Chairperson: Will the regulations go through the Department or the Assembly?

5385. Mr Stewart: I would have to check the Bill, but I imagine that the regulations will be subject to the normal Assembly control, almost certainly by negative resolution.

5386. Mr O’Dowd: Mary questioned the use of the word “may"; however, schedule 1(8) allows the Department to decide whether it may or may not act in a particular way, whereas “shall" would be more prescriptive.

5387. Am I correct in assuming that the authority to delegate powers to an employee exists in many agencies and Departments and in local councils, the officers of which can be delegated powers by their council?

5388. Mr Stewart: Yes, absolutely; all RPA legislation has similar provisions.

5389. The Acting Chairperson: Are members content with schedule 1(8)?

Members indicated assent.

5390. The Acting Chairperson: Schedule 1(9), 1(10), 1(11) and 1(12) provide for the ESA to make standing orders to regulate its procedures and committees. They deal with the validity of its proceedings, those of its committees in certain eventualities, the application of the ESA seal in the execution of documents and the service of documents on the ESA. Members will note from the information that was collated by the Committee Clerk that the Ulster Teachers’ Union was the only organisation to comment on those provisions. Do members have any views?

5391. Mr Lunn: They appear standard; however, does section 19(1)(a)(v) of the Interpretation Act (Northern Ireland) 1954 restrict the ability of the ESA to make its own rules?

5392. Mr Stewart: No. That is a standard and well-worn piece of legislation that sets the governance rules for every public body.

5393. The Acting Chairperson: Are members content with schedule 1(9), 1(10), 1(11) and 1(12)?

Members indicated assent.

5394. The Acting Chairperson: Schedule 1(14), 1(15) and 1(16) provide for the funding of the ESA by the Department of Education and the Department for Employment and Learning. They prevent the ESA from borrowing money, require it to keep proper accounts and to provide those accounts to the abovementioned Departments and to the Comptroller and Auditor General. Are members content?

Members indicated assent.

5395. The Acting Chairperson: Schedule 1(17) and 1(18) provide for the sending of an annual report to the Department of Education and the Department for Employment and Learning, for the laying of it before the Assembly and for other such reports and returns that the Department of Education and the Department for Employment and Learning may reasonably require. Are members content with those provisions?

Members indicated assent.

5396. The Acting Chairperson: Schedule 1(19) would add the ESA to a list of organisations whose members are disqualified from serving as MLAs. Members will recall that the Committee sought legal advice on this, which it considered at its meeting on 27 May 2009. The legal advice was that without 1(19) there would be no legal impediment and that, in respect of a conflict of interests, an MLA could serve on the ESA provided that they declared their membership in the way that they declare membership of an education and library board.

5397. Do members consider a declaration of interest sufficient, or would it be preferable to rule out the possibility of such conflicts, as paragraph 19 would? I know that some absent members have an opinion on the matter. Should we continue the discussion or should we wait until those members return?

5398. Mr O’Dowd: I am happy to wait. I think that there is more to the legal advice than has been outlined today. I am happy to return to the issue, but members should study the legal advice.

5399. The Acting Chairperson: Since the issue could cause problems, are members content to return to it at a later date?

5400. Mr Stewart: For members’ benefit, the paragraph is a standard one. There is a similar requirement on all the new public bodies established by other Departments under the RPA. The Minister will, of course, consider any view expressed by the Committee, but if the Committee wishes to suggest a change, the Minister will no doubt wish to know why the Committee sees a need for MLAs to be members of the ESA when they are disqualified from membership of similar public bodies established by other Departments.

5401. The Acting Chairperson: Are members happy to return to the issue?

Members indicated assent.

5402. The Acting Chairperson: Paragraphs 20 to 22 of schedule 1 make the ESA subject to the ombudsman and the Freedom of Information Act 2000, and set the financial year end as 31 March. Are members content with those provisions?

Members indicated assent.

5403. The Acting Chairperson: We move on to clause 2. I refer members to the spreadsheet of stakeholder comments and concerns, the Department’s responses, and the wording of the clause covering the functions and general duty of the ESA.

5404. Members will recall concerns that the ESA’s duty regarding youth services is referenced in clause 2(2)(b); 2(2)(a) covers the ESA’s duty in respect of primary and secondary education and educational services. Members will recall that the Committee heard from officials that the reason for a separate subsection is that youth-services provision extends to the age of 25, which is beyond the age limit of 18 for children and young people to which the duty in clause 2(2)(a) refers. Do members have views on clause 2 or are they happy with the Department’s approach? Officials explained that educational services encompass pre-school education, but several witnesses, primarily those from the Southern and Belfast boards, expressed doubt.

5405. Mr Stewart: The definitions are extremely complex, and some overlap. Educational services include pre-school provision other than that in schools, which would be part of the definition of primary education. By means of a combination of the various definitions, clause 2 provides complete coverage of all the various services and stages of education. However, it is not an easy read because of the complexity of the definitions involved.

5406. The Acting Chairperson: Do members have any comments?

5407. Mr Stewart: The Minister may wish to suggest an amendment to clause 2(2)(b). We have given the technical explanation of why youth services have to be mentioned separately, but we recognise, as was pointed out by various stakeholders, that the language in clause 2(2)(a) is different from that in clause 2(2)(b). Clause 2(2)(b) looks rather bald by comparison. The Department may seek to make the language in clause 2(2)(b) more similar to that in clause 2(2)(a) to make it clear that youth services are seen as an important and intrinsic part of the education system, and that, just like primary and secondary education, it is their purpose to contribute to the spiritual, moral, cultural, social, intellectual and physical development of those who receive youth services.

5408. The Acting Chairperson: Have Members anything further to add?

5409. As there no further comments, I will move on. Members will note that in response to C na G’s concerns and suggestions, the Minister has agreed that the ESA should have a statutory duty to encourage and facilitate Irish-medium education. The Department is considering how that might be reflected in the legislation. The Committee was provided with a copy of a letter sent to Dominic Bradley and the proposed wording of the Minister’s amendment. The Committee has not seen the detail of the amendment, and my party colleagues and I may have a view on it. Do members have any views on the clause and the Minister’s proposal, or do we want to wait until we see the detail of it? Are members happy to wait for the detail?

Members indicated assent.

5410. Mr Stewart: I suspect that the duty would look very similar in construction to the existing duty on the Department, which, if memory serves me correctly, is contained in article 89 of the Education (Northern Ireland) Order 1998.

5411. The Acting Chairperson: Do you have an idea of when the Committee might be given a copy of that wording? There is obviously some urgency with this.

5412. Mr Stewart: We hope that the Minister’s reply to the Committee’s letter of 20 May will include that wording and most, if not all, of the other information that the Committee seeks.

5413. The Acting Chairperson: Clause 2(3) contemplates a situation whereby the ESA will temporarily be the owner of the schools currently vested in the education and library boards, pending the creation of a new statutory ownership body. Clause 22 and schedule 3 provide for the transfer of the property of the dissolved bodies, including education and library boards, to the ESA. Clause 2(3) specifically imposes a duty on the ESA that in exercising its duties it will:

“ensure that schools whose premises are not vested in ESA are treated on the same basis as schools whose premises are vested in ESA."

5414. The Council for Catholic Maintained Schools (CCMS) has flagged up its concerns regarding the fundamental contradiction inherent in the ESA having ownership of schools in one sector but not of schools in other sectors. My reading of that would be that CCMS sees that as positive discrimination, although I may take another view. I cannot speak on behalf of members who are not present, but a mechanism with which my party would be happier would need to be found in advance of the ESA being established. Do other members have a view on the nature and membership of the ownership body?

5415. Mr Lunn: CCMS has flagged up a concern, and that is fair enough, but clause 2(3) makes it abundantly clear that the ESA cannot discriminate in any way against schools whose premises are not vested in the ESA. It could not be simpler. For once, I agree with the thinking. I do not see what the problem is.

5416. The Acting Chairperson: So you are happy with that paragraph as it stands?

5417. Mr Lunn: Yes.

5418. The Acting Chairperson: Other bodies have made a number of comments. Members are extremely quiet this morning. [Laughter.] I do not know whether that is good or bad. Do members wish to discuss any other aspects of clause 2 at this stage?

5419. Just before we move on to clauses 3 to 12, which fall under the heading of ‘ESA to be single employing authority for grant-aided schools’, I must make my apologies as I have to leave. I will now hand over to Mr Lunn. As I am leaving and only four members will remain, the Committee will not have enough members present to make decisions.

(The Acting Chairperson [Mr Lunn] in the Chair).

5420. The Acting Chairperson (Mr Lunn): Are members content that I take the Chair?

Members indicated assent.

5421. Mr O’Dowd: We will see how you behave yourself.

5422. The Acting Chairperson: Clauses 3 to 12 fall under the heading ‘ESA to be single employing authority for grant-aided schools.’ Although we do not have enough members present to make decisions, we can still discuss the clauses.

5423. Before moving to the wording of each clause, I propose that the Committee consider the general issues that some stakeholders raised about the ESA employing all staff in grant-aided schools. A record of the issue and the position reached with the Department is set out on pages 2 to 4 of the table that is attached to the Committee’s letter to the Minister of 20 May 2009. I draw members’ attention to some points included in the departmental submission that was discussed at the Committee’s meeting on 1 April. I also draw members’ attention to some of the comments that were made by departmental officials at that meeting, which are reproduced on pages 3 and 4 of the table.

5424. The first bullet point of paragraph 3 of the Committee’s letter to the Minister concludes that:

“the Committee had not expressed a formal view to the Minister on the suggestion".

5425. The suggestion is to amend the Bill to include a provision for the Department to make regulations on schemes of employment as set out in broad terms on 1 April. We can discuss the suggested amendment and regulation to give greater clarity and certainty about the detail of the arrangements and the content of employment schemes, but we cannot reach a view on them. Do members have any comments?

5426. As members have no comments, I will move on. Members will recall that when the chief executives of the education and libraries board gave evidence to the Committee on 1 April 2009, Mr Cargo stated that:

“Certain consequences flow from being an employer that must be clearly identified in the Bill. There is potential for those to be included in the Bill, but the heading of the clauses relating to employment and the ESA refers to it as an “employing authority". That has been part of the problem over the past 20 years in our dealings with boards of governors on employment issues. Boards of governors often claim that they are the employer and that the education and library board is only the employing authority; however, we have never been able to get legal clarity about the difference, and we were looking forward to that being provided by the Bill."

5427. That legal clarity has still not been provided.

5428. Following that meeting, the Committee obtained legal advice on the employer/employing authority distinction, which highlighted that the Department, in relation to CCMS, had made regulations clarifying who the appropriate respondent was in the event of an employment dispute resulting in litigation and confirming the right of CCMS to be joined in any proceedings brought against the governors of a Catholic maintained school. Again, the Committee awaits a response from the Department on questions arising from that.

5429. 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."

5430. Clauses 4 to 8 provide for a system of employment schemes. An employment scheme is to be prepared by the submitting authority of every grant-aided school and submitted to the ESA for approval. Members will recall that a number of stakeholders, including the Governing Bodies Association (GBA) and the Northern Ireland Commission for Catholic Education (NICCE), raised serious concerns about those clauses and their consequences for the ethos of certain sectors and schools. Members will be able to recall that, so I will not read out the words that the representatives from NICCE used. Other stakeholders, such as C na G, the Northern Ireland Council for Integrated Education (NICIE), the North Eastern Education and Library Board, the Ulster Teachers’ Union (UTU), the Irish National Teachers’ Organisation (INTO) and other unions welcomed the concept of a single employer of all staff.

5431. Do members have any thoughts on that, or will we keep moving?

5432. Mr O’Dowd: I am happy enough.

5433. The Acting Chairperson: Clause 3(2)(a) defines the submitting authority. For Catholic maintained schools, the submitting authority will be the trustees of a school, whereas in other grant-aided schools it will be the board of governors.

5434. The views on the submitting authority are diverse. For example, on the one hand, the INTO said that all boards of governors — with no distinction for spurious ethos — should be submitting authorities. On the other hand, NICCE said that it welcomed the Bill’s recognition that the owner and trustees will have a key role in determining the scheme of employment and scheme of management of each Catholic grant-aided school. It believes that that is essential if owners/trustees are to fulfil their duty to ensure that the ethos and defining character of a school are sufficiently recognised and present. Members will recall that the Minister is minded to propose an amendment to the definition of submitting authority to ensure that the owners or trustees would be the submitting authority for all schools. The Department’s response to the unions is included in members’ packs.

5435. At our meeting on 22 April, after the session with the Transferor Representatives’ Council (TRC), departmental officials advised the Committee that:

“one particular function — the role of the submitting authority — presents us with a challenge in relation to the controlled sector."

5436. Chris Stewart said:

“We have outlined two options that might help overcome that. The first is to place the submitting authority role directly with the boards of governors, most of which will, of course, include TRC governors. The second is to place a requirement on the ownership body — if it has a submitting authority role — to consult and involve the representative body."

5437. The Committee is still awaiting a paper from the Department on the general issues that were raised by several stakeholders to achieve clarity and certainty on the employer/employing authority issue through draft amendments to the Bill to make regulations and the terms of the draft regulations on schemes of employment as set out on 1 April. Do you have any thoughts on that, Chris?

5438. Mr Stewart: I will make a few points that could assist the Committee. The terms “employing authority" and “employer" have attracted a great deal of mystique. Members will notice that the term “employing authority" appears only once in the Bill, over the heading of the clauses. At times, perhaps too much is read into the phrase “employing authority"; it is simply the authority that employs. That is the Department’s fault, because that is the phraseology that it used at the beginning of the RPA.

5439. I now tend to refer to the ESA as the single employer, which is what it will be. The ESA will employ all staff in all grant-aided schools. Boards of governors will have a range of employment functions that they will discharge on behalf of, and in the name of, the ESA. Any action of a board of governors will be on behalf of, and in the name of, the ESA. We recognise the point made by stakeholders about the need for clarity and certainty about what exactly boards of governors will be allowed to do. The Minister is considering the suggestion that that ought to be set out in regulations rather than in guidance only. She will, I hope, respond to the Committee on that matter next week.

5440. At the same time, we can consider the issue on which your legal advice touched; whether the ESA, as the employer, will have the right to be joined to any action that is taken against a board of governors. I do not imagine that it would be difficult to include a provision that will make that the case. However, I do not think that there is as much uncertainty or lack of clarity on the matter as some stakeholders have suggested. The arrangements and the model that we have proposed are very similar to the arrangements that currently apply in Catholic maintained schools. Essentially, the CCMS model will be applied to all schools. That model has worked successfully since CCMS was established, and we propose to extend the arrangements on that basis.

5441. The Acting Chairperson: Do members wish to make any comments? I do not think that you will get any argument from the members who are currently present. We cannot do much about that presently; we will have to return to the issue.

5442. Mr Stewart: We appreciate the depth of concern that stakeholders have expressed to the Committee. At times, they tend to overlook a particular aspect of the policy. Many have sought to interpret the provisions as an attempt on our part to introduce some kind of command-and-control arrangements for employment. Nothing is further from our minds.

5443. The intention is that the schemes of employment will be based on model schemes and that the stakeholders will have a very significant input — in fact, they may go as far as to write the model schemes for the ESA. For example, we would strongly encourage the Catholic commission to let us have its views and, if possible, suggestions for a model scheme that would apply to Catholic schools. Likewise, the GBA, if it chooses to resume contact with us, may wish to contribute to a model scheme for grammar schools.

5444. The Acting Chairperson: We will move on to look specifically at each clause. I will highlight some of the key issues and concerns around clauses 3 to 12 and schedule 1. Members may have other concerns, and I ask them to indicate whether they wish to raise them as we proceed. I will refer to the spreadsheet and some of the information in the letter and table that the Committee issued to the Minister on 20 May.

5445. Clause 3(1) deals with the underlying principle of that part of the Bill. Do members have any proposed amendments in the light of what has been said, or will we have to leave the matter until the Committee has more of a representation?

5446. Mrs O’Neill: With respect, it may be safer to leave it. We can talk the issue through today, but we will have to come back to it if other members who are not present today have concerns to raise. That would mean that we would have to go over it again.

5447. The Acting Chairperson: If we had a quorum for decisions, I might even agree with you. Unless Edwin Poots walks through the door, we are goosed. If members wish to propose amendments, we can take note of them for future reference. The officials are present if members would like anything to be clarified.

5448. Mrs O’Neill: Is there any point in going over these clauses now, given that we will have to go over them all again when more members are present? Should we stop the scrutiny now and address other business?

5449. The Acting Chairperson: Do other members have any comments?

5450. Mrs O’Neill: We can talk about the Bill, but we cannot make any decisions or do anything. I know that we can get clarification from officials, but we will have to do it all again when more members are present.

5451. The Committee Clerk: The decision is up to members.

5452. Mrs M Bradley: We do not even know when the other two members will arrive.

5453. The Acting Chairperson: We have received an apology from Nelson McCausland, and Edwin Poots indicated that he would be here at around 11.00 am. Basil McCrea and Tom Elliott were supposed to be here. We can stop the scrutiny at this point, if that is the wish of members.

5454. The Committee Clerk: We could suspend the meeting for a period and see if other members will appear and recommence when we have a quorum to make decisions, if members are minded to take a short break.

5455. The Acting Chairperson: It is not question of being quorate; it is a question of having a representation from each party, which we do not have at the moment and which I am not sure we will have.

5456. The Committee Clerk: I suggest that we reconvene at 11.15 am, and I will make some phone calls to find out whether the UUP and DUP representatives will arrive at that time.

5457. The Acting Chairperson: OK, members, will we suspend the meeting and reconvene in 10 minutes’ time?

Members indicated assent.

Committee suspended at 11.05 am.

Committee adjourned at 11.17 am.

17 June 2009

Witnesses:

Mr Jeff Brown
Mr Chris Stewart

Department of Education

5458. The Chairperson (Mr Storey): A letter from the Minister covering several issues arrived at 9.10 am this morning. It comprises roughly 30 pages, and I doubt that members will have digested it all before today’s meeting. It contains issues that we need to address, and I ask members to bear that in mind. We will return to the letter next week.

5459. The Committee Clerk: Members could invite officials to clarify the letter at the meeting.

5460. The Chairperson: Chris Stewart is always willing to help. At last week’s meeting, the Committee continued its scrutiny of the Education Bill under the acting chairmanship of Michelle McIlveen and Trevor Lunn, and I appreciate their help in the absence of the Deputy Chairperson and myself. Chris Stewart and Jeff Brown are here and may want to answer members’ questions.

5461. Last week, the Committee commenced its scrutiny at paragraph 7 of schedule 1 and considered the remainder of schedule 1 and clause 2. The Hansard report of last week’s meeting shows that the Committee agreed, because of the absence of the education spokesmen of two parties and because only five members were present, not to take any decisions on the Bill. That was entirely appropriate.

5462. I hope that members have had the opportunity to consider my letter of 12 June about making the best use of the Committee’s time on the Education Bill in the run-up to the summer recess. I trust that members are content with the way forward outlined in my letter. In particular, we should try to make decisions on clauses based on the information that is available at the time in order to give the Clerk and his team clear instructions to prepare the draft report, which the Committee will revise in light of its final deliberations in September. That is important.

5463. The Committee will produce a report, and members who sit on other Committees will know that the report will return to the Committee, whereupon we will study it line by line to establish an agreed position. Members should not worry that they may have agreed to matters that cannot be changed at some stage; the Committee will examine the report before it is submitted to the Assembly on 30 September 2009.

5464. Stakeholders’ concerns and the Department’s response to them are set out in detail by individual clause in the spreadsheet. The objective of this meeting is to obtain maximum clarity on members’ views on several issues and to determine whether they are content with the clauses or whether they propose amendments. Members may wish to express that support as proposed changes in principle, suggested rewording or additional wording to clauses.

5465. Moreover, we want to consider what further information or clarification, if any, we wish to have as a matter of urgency from the Department or the stakeholders that may satisfy our concerns. The departmental officials are here today to clarify any points that members want to make.

5466. I note from the draft minutes and the Hansard report of last week’s meeting that Chris Stewart expected a lengthy and detailed response this week from the Minister on the concerns that the Committee raised in its letter of 20 May. The Committee received that response this morning, and members should have a copy of it in front of them.

5467. I propose that the Committee re-examine certain key provisions in the Bill. Schedule 1(2)(1)(b), which we have already considered, deals with the number of members of the education and skills authority (ESA). Are members content that the ESA should have seven to 11 members and a chairman? If not, what numbers do members suggest? Does anyone want to comment on that issue? I ask members to turn to the Minister’s letter. Chris, do you want to comment?

5468. Mr Chris Stewart (Department of Education): I begin by apologising for the late arrival of the letter; that is not what you or we would have wished.

5469. The Minister addresses ESA membership in the letter. There are two important considerations to draw to members’ attention. She considered carefully the point that was raised by Mr Lunn and by some stakeholders about whether the majority of ESA members should be local councillors. The Minister has given careful thought to that issue and remains of the view that, in the interests of ensuring local democratic accountability, the majority of members of the ESA should be local councillors.

5470. The Minister also considered carefully the representations that were made about the total number of members of the ESA. Although, at this stage, she is not minded to bring forward an amendment to the Bill, she has indicated that she wants to give more consideration to the total number of members of the ESA.

5471. Mr Lunn: I heard what Chris said, but I do not see it in the letter. The Minister says that some members consider that local councillors ought not to form a majority of the membership of the ESA, but that is as far as the letter goes. I am reading the letter for the first time now. I cannot see where she rules that out.

5472. Mr Stewart: Please bear with me for a second, Chairperson.

5473. The Chairperson: It is at the third paragraph on page 2.

5474. Mr Lunn: I still cannot see it.

5475. The Chairperson: It says:

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

5476. Mr Lunn: That is fair enough; we are talking about the number of members of the ESA. I can find no reference to the majority of ESA members being councillors except for the first paragraph on page 2 of the letter.

5477. Mr Stewart: It is there because the Minister has indicated that she is not minded to change the relevant provisions; therefore, she feels that the requirement that a majority of ESA members should be councillors ought to remain.

5478. The Chairperson: Trevor has expressed a concern about the intention that a majority of ESA members ought to be councillors. Is that correct, Trevor?

5479. Mr Lunn: Yes. I am curious to know whether I am the only one who has that concern.

5480. The Chairperson: Have members other comments on that issue?

5481. Mr Lunn: We can change our minds, I suppose.

5482. The Chairperson: We will move to the provisions of the Bill to which the merit principle applies. Can the merit principle, which the Department has indicated will apply to all appointments to the ESA, be reconciled with ensuring that ESA members, as a group, are representative of the community in Northern Ireland?

5483. Appointments on merit, particularly if the number of members is small, might result in a membership that was not representative of geography, sex or community background, which might affect public confidence in the ESA.

5484. Do members have views on the merit principle? If members are not content, what amendments do they propose?

5485. Mr McCausland: I am disappointed by the response on the issue of a membership being broadly representative of the community. The argument is made that that is appropriate for the Equality Commission and the Human Rights Commission.

5486. We are told that this case is different because a representative membership is appropriate for commissions that are operationally independent of Ministers in the Assembly. That is true, but that does not preclude it also being appropriate for an issue as sensitive as education. There is no logic to the Minister’s argument.

5487. In the next paragraph of the letter, the Minister states:

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

5488. Does balanced mean the same as representative?

5489. Mr Stewart: In answer to the last question, balanced and representative are two different concepts. The Minister’s letter states that she has considered the suggestion of some members for a board that would be broadly representative but that she does not consider that to be appropriate. Nevertheless, the Minister recognises that, in view of the sensitivity surrounding education as a public service and the importance of the ESA’s enjoying a broad measure of trust and confidence, the membership must not be unbalanced or perceived as such. That is why the Department sought clarification on the extent to which it is possible to combine the merit principle with steps to deal with that issue. The Department considers it possible to retain the merit principle’s centrality to the arrangements to ensure that there is not an imbalance in gender or geography.

5490. Mr McCausland: My point is that there are two separate issues. Some members asked for a body that would be broadly representative, but the Minister says that the body will reflect the need to ensure balance. What is the difference between a body that is broadly representative and one that is broadly balanced?

5491. Mr Stewart: The difference is between proactivity and reactivity. If certain provisions required a representative membership, the approach to the appointment arrangements would have to reflect that, and we would have to seek membership of a certain composition proactively and overtly. The proposal that will be reflected in the appointment arrangements is a safety mechanism so that if the application of the merit principle would, without alteration, provide an unbalanced membership, something could be done to address that.

5492. Mr McCausland: I find that answer confusing. In one case, the end result is a body whose membership is based on merit and that is also representative of the community; in the other, the body’s membership reflects the balance of the community. What is the difference? There may not be that much difference, but experience tells me to get the issue nailed down properly and clearly, but I find it confusing.

5493. Mr Stewart: The approach that we propose means that it is not possible to predict the outcome, whereas that would be possible were the requirement proactively to seek a representative membership.

5494. Mr McCausland: Could you end up with a body that was not balanced?

5495. Mr Stewart: It is impossible to predict exactly how balanced the body would be, because we do not yet know who will apply and who will satisfy the merit principle.

5496. Mr McCausland: In other words, the phrase:

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

5497. could be removed as it is meaningless: ultimately, appointments will be made on the merit principle and on nothing else.

5498. Mr Stewart: That is not what we are saying. Let me give a hypothetical example: if all the applicants to the ESA board who satisfied the merit principle were of the same gender, there would be nothing that we could do to achieve a balance. On the other hand, if the top 12 candidates were of the same gender but there were candidates of the other gender who, although not in the top 12, were nevertheless above the line so to speak, it would be possible to depart from strict adherence to the merit principle to ensure a better balanced membership.

5499. Mr McCausland: If, in extreme circumstances, there were to be no applications from one gender, would the position be advertised again?

5500. Mr Stewart: That would be likely.

5501. Mr McCausland: Therefore you could achieve a body with a representative membership.

5502. Mr Stewart: We will strive to achieve a balanced membership, but it is not the Minister’s policy that we seek a representative membership.

5503. Mr McCausland: If the attitude is that we cannot even achieve equality in a body that should be representative of Northern Ireland society, we are not getting off to a good start.

5504. Mr Lunn: I agree with Nelson. We must balance education interests, the needs of the broader community and gender-equality requirements. It looks as if we will have a 12-person body, seven of whom must be councillors, so there will be room for only another five members with whom to balance other interests. It is plain to see that, no matter what we say, that is how it will be. I will watch with interest the Department and the Minister attempt to square the circle, because doing so appears to be impossible.

5505. Mr O’Dowd: There are several layers to the structure of the ESA. The layer that we are discussing comprises the management body, which will implement departmental and Assembly policy, and this Committee will scrutinise those policies. The management body’s sole function will be to carry out that role; it has a mechanical function. The underlying layers include the sectoral support bodies, which must reflect the sectors that they represent. Below that layer are the local area teams, which will also have a mechanical role, and, below them, will be the committees, which will be able to be representative and balanced in the way that some members wish.

5506. As the Minister’s letter says, many organisations, including health bodies, the Housing Executive and the PSNI, have management structures that are based on the same merit principle on which this body will be based. Therefore, this type of body is not an invention of the Minister, my party or a Marxist guerrilla in the Department of Education; it is fundamental.

5507. Mr Stewart: How do we spell “guerrilla"? [Laughter.]

5508. Mr O’Dowd: It is a fundamental structure that might be found in any administration.

5509. The Chairperson: I accept that such functions would be preformed mechanically, but it is the power that the ESA will have that is the issue. We are not talking about a distant mechanical structure; the ESA will be a very powerful organisation that will be able to say no to schools, despite article 101 of the Education and Libraries (Northern Ireland) Order 1986. It is an oversimplification to say that the body that we are constructing is merely mechanical.

5510. Mr O’Dowd: The Minister, whoever that may be, will hold all the power. Therefore, if we want to achieve the balance that you talk about, we will need four Ministers of Education. As things stand, the Minister will hold those powers.

5511. The Chairperson: We have enough trouble with one Minister, never mind four or five.

5512. Mr B McCrea: I am with the others on this issue. We are trying to cover a great deal of policy with one body. I did not get a chance to talk about councillors, but my position on that is on the record.

5513. The Chairperson: Do you want to clarify your position, because our discussions are being recorded by Hansard?

5514. Mr B McCrea: I am not absolutely convinced that democratic oversight should lie with councillors; that would be asking a great deal. Therefore I record my reservations about that once again.

5515. There seems to be a clash between the merit principle and the equality principle; it seems that we cannot have both. I understand that the original supposition was that appointments would be made entirely on merit, but we are now trying to do too much. It all comes back to the fact that we have not yet resolved what we are trying to do. It is a triumph of process over principle, and we have not settled on how much power should be given to the ESA.

5516. I accept Mr O’Dowd’s point that the Minister already has the power, but, frankly, that is my concern. If that power does not command cross-community or sectoral support, many people will be dissatisfied with the democratic process. I do not wish to be negative about everything; however, the Ulster Unionist Party is concerned about the amount of power that will be given to the ESA, and we are reluctant to support it in its current form.

5517. Mr McCausland: The powers of the ESA are another matter; we are dealing with its membership. I would like the Committee to be given a short paper on how membership works in the Equality Commission and the Human Rights Commission. Chris talked about being proactive and reactive, but I would like to know how it is done in practice. The Minister is at the top of the pyramid, but it is important that every sector of the community have confidence in the structures at every level. The only way to build confidence is to have representativeness across the board.

5518. There is representativeness on crucial issues such as equality and human rights, and there is no more crucial issue than education. Various sectors have expressed passionate and earnest views to the Committee about the importance of education. Education is especially important; it is at the heart of every home and every family; it is different from libraries, the Sports Council and other bodies. We need to get the system right, and there needs to be representativeness in the membership of the ESA.

5519. Mr Poots: I approach the matter from a slightly different angle. The Minister proposes that the ESA board should have 12 members and says, in effect, that a larger board would be ineffective. We have five education boards, each of which has 35 members, so it seems that larger boards work to a greater or lesser degree. An ESA board of 12 members is not sufficient to reflect adequately the diverse range of views in education across Northern Ireland; we need to move away from such a small figure.

5520. I have a problem with the Minister’s proposal to establish subgroups to feed into the main board of the ESA, whereas a larger board could accommodate the necessary subgroups. However, the Minister proposes to bring in far more than 17 or 19 people, which would have been an appropriate board size.

5521. Therefore, the Minister needs to reflect seriously on whether to opt for a small board. Education is far too diverse, as Mr McCausland said. We are not talking about the Housing Executive; the plethora of issues that exists in the education sector does not exist in the housing sector. Having an education and skills authority with a small, unrepresentative board would be hugely damaging to education.

5522. The Chairperson: With regard to the merit principle, how would you defend against complaints from very highly qualified applicants who cannot be appointed because of the need to achieve balance? Would you have to re-advertise, as has been suggested?

5523. Mr Stewart: If an insufficient number of candidates applied or an insufficient number of candidates satisfied the requirements of the merit principle, then, yes, we would have to re-advertise.

5524. The Chairperson: Nevertheless, if a raft of highly qualified people applied but you did not achieve balance, what would you do?

5525. Mr Stewart: It is important to remember that we cannot depart from the merit principle to the extent that we would appoint someone who is not above the line. Anyone who is appointed to the membership of the ESA will satisfy the merit principle. Yes, some will satisfy it more than others, and it may be necessary to depart from strict merit order, but that is in keeping with the Commissioner for Public Appointment’s guidance and code of practice.

5526. Mr D Bradley: I made my views on this subject known previously. Having a bigger board with somewhere in the region of 20 members would make it easier to achieve the necessary range of expertise and balance, and the board could still have a majority of councillors.

5527. Mr O’Dowd: Mr McCausland has requested a paper, which I think would be useful, but it might also be useful for members to get a copy of the commissioner’s code of practice on appointments. There has been an overemphasis on the word “balance", and it would be useful to look at the matter in the context of the commissioner’s code of practice.

5528. The Chairperson: We are looking at paragraph 2 of schedule 1, which deals with membership. Obviously, there is no consensus on the number of members of the ESA being between seven and 11. There is a view that there should be more members than that. There is also the question of whether the Committee needs to suggest that an additional sub-paragraph be added. Paragraphs 2(2)(b) states:

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

5529. Is there a requirement for an additional sub-paragraph? The difficulty is that the letter that we received this morning from the Minister tells us that she will reflect on the number of board members, so we still do not know what the definitive position will be.

5530. Mr Lunn: We could coalesce around a particular number. Edwin said 17 or 19 and Dominic said 20. There should be a figure in that range that we can agree on and that would allow for the various interests to be more easily represented.

5531. The Chairperson: Is the Committee agreed that the figure should be larger than what is outlined in the Bill?

5532. Mr Poots: We need to lay down a marker. If the Committee were to say that the membership should be more than 11, the Minister may come back with 12 or 13. I am easy with a figure of in and around 20, and whether it is 18, 19 or 21 is not a big issue for me. The education system is diverse; it includes the Catholic system, the state-run system, the integrated system and the Irish-medium system, so we will not get away with that smaller number, particularly given the number of public representatives that are to sit on the ESA. It is just not feasible.

5533. Mr B McCrea: My concern is about what we want that body to do. If it starts out as being purely managerial and mechanical, a different composition would be needed. If it becomes involved in bringing together community and sectoral issues, a much broader view would be required. My fear is that we are just getting layer upon layer of red tape, and that no one takes decisions.

5534. I thought that the idea that we wanted to convey in the Bill is that we have to take decisions about the demographic downturn and all sorts of other issues. It seems to me that this Committee is trying to design a horse but will end up with a camel. There is no clear consensus around how we will tackle the diverse and challenging views on education, and we will not get a good structure until that consensus is reached.

5535. Mr Poots: We are talking about the composition of the board. We should stick to talking about that rather than going down some by-path meadow that is not really relevant at present.

5536. The Chairperson: We have to try to work our way through the schedule methodically, if we possibly can. I do not think that the Committee is going to come up with any suggestions for an additional sub-paragraph for inclusion in the paragraph on membership.

5537. Mr O’Dowd: Is the Committee minded to write to the Minister about its various views? There have been discussions about numbers. Some members feel that we should have 15, 17 or 19 board members. I note that the Minister said that she wants more time to reflect on that. However, the Committee could ask the Minister to come forward with a definite number.

5538. The Chairperson: I think that that was Edwin’s suggestion, rather than to set an arbitrary figure. We are certainly talking about more than seven or 11 board members.

5539. Mr Poots: The board of the ESA should have a skills base. It should have people with experience in corporate and financial matters and educational psychology. Fewer board members would not provide that range of experience, and it would then be necessary to get into the issue of additional support. I suggest that we try to get the entire range of experience on the one board.

5540. The Chairperson: That is, in a sense, reflected in paragraph 2(2)(b) of schedule 1, which states:

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

5541. Mr Lunn: I hear the suggestion, but I am a bit concerned. The Minister has said that she is prepared to reflect on the size of the board, and the Committee seems to have accepted the suggestion that we should ask her to reflect on it. We are getting close to the finishing line, so perhaps it is time that we started to make some firm suggestions to the Minister. The Committee should be writing to her to say that although we take on board her point that it is possible to increase the number of board members by Order, the board should comprise at least 18 members at the outset.

5542. The Chairperson: I am reluctant to get the Committee to agree a figure. Where does one draw the line — at 18 or 20?

5543. Mr Elliott: It is an issue that might resolve itself when the Minister comes back to the Committee.

5544. The Chairperson: That would probably be more productive. The letter states that the Minister wishes to reflect on the matter. The departmental officials here today and the Minister know that the Committee is not happy with the figures outlined in the Bill. Therefore, we have to find agreement between what is in the Bill and where we want to be. I believe that we can get that agreement. I am a bit reluctant simply to pull a figure out of the hat. The Committee agrees that the figure should not be as contained in the Bill, but we are not agreed on what it will ultimately be.

5545. Mr Lunn: It will come back as 13.

5546. Mr Poots: The information that Chris will take to her will show that that would not be acceptable.

5547. Mr D Bradley: Can the Committee write to the Minister asking for the outcome of her reflections on the issue?

5548. The Chairperson: Yes.

5549. Mr McCausland: We are requesting information on the Equality Commission and the Human Rights Commission. Will we do anything more today on the issue of the representativeness of the board of the ESA, or will we leave it until we receive that information?

5550. The Chairperson: There is a clear difference, whether it is on emphasis or in interpretation, between members’ views on that issue and the Department’s suggestion. We need to consider whether we want to do something that expands and clarifies the issue of the ESA’s representativeness.

5551. Miss McIlveen: I am mindful that we wrote to the Minister on 20 May and received correspondence only today. We should, surely, make it known that we require urgent responses if we intend to deliberate and possibly make amendments.

5552. The Chairperson: That should be a given. Some of the information has been in the domain for six months.

5553. The Committee Clerk: I suggest that, procedurally, the final limit should be Friday 26 June. The Committee must bring recommendations on amendments to the House by 30 September. If the Committee is to engage in an iterative process with the Minister, she needs to respond to the Committee’s issues on a weekly basis.

5554. The Chairperson: Paragraph 2(3) of schedule 1 states:

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

5555. Chris, will you explain the meaning of that?

5556. Mr Stewart: It is a safety-net mechanism. If we discover that the ESA’s board is not big enough, we can add to the membership.

5557. The Chairperson: Can it also reduce the membership?

5558. Mr Stewart: It could, technically, reduce it.

5559. The Chairperson: If it goes one way, it can also go the other.

5560. Mr Stewart: That is correct, the provision could be used to reduce the membership, but I have heard no argument anywhere that the proposed numbers are too large.

5561. The Chairperson: Are members happy with that provision? Personally, I have no issue with it.

5562. Mr Poots: Can the Minister change the membership without Assembly approval?

5563. The Chairperson: The legislation states:

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

5564. Will you clarify the procedural implications of the phrase “by order"?

5565. Mr Stewart: The Order would be subject to Assembly control by the negative resolution procedure. Therefore, it would come into effect unless the Assembly voted against it.

5566. The Chairperson: That is a difficulty for some members.

5567. Mr D Bradley: What happens if that situation arises during the summer?

5568. The Chairperson: That could cause a difficulty.

5569. Mr Stewart: I would need to check that, but I am sure that the Assembly will have considered that matter and that that would not be possible.

5570. Mr B McCrea: The issue is whether the Order would be subject to a cross-community vote.

5571. The Chairperson: What if it were subject to negative resolution?

5572. Mr B McCrea: It would pass unless it is defeated by a cross-community vote.

5573. The Chairperson: What if it were subject to affirmative resolution?

5574. Mr B McCrea: Making the Order subject to affirmative resolution would be a stronger safeguard.

5575. Mr Stewart: That is correct; a cross-community vote would happen only if a petition of concern triggered the cross-community vote mechanism.

5576. Mr B McCrea: It is possible that if the Minister amended the numbers by Order, a petition of concern would be submitted. Making the Order subject to affirmative resolution would create more confidence in the process.

5577. Mr D Bradley: What are the likely circumstances under which such an Order would be used?

5578. Mr Stewart: It would be used if we found that we had significantly underestimated the number of members required to discharge the responsibilities of the ESA. It is a safety net in the event that we get our homework wrong and find that the ESA’s effectiveness is impaired by having too few members.

5579. The Chairperson: But, equally, if it is a safety net to deal with concerns, the regulations could be subject to affirmative resolution rather than negative resolution.

5580. Mr Stewart: Yes.

5581. Mr B McCrea: I am happy to suggest that the provision would be OK if it were subject to affirmative resolution. That does not seem to be a problem.

5582. Mr O’Dowd: Before I agree to anything, I would like to see a written report that explains the difference between negative and affirmative resolution. We are getting information from various angles, but I would like to hear from the experts.

5583. The Chairperson: To return to an earlier example, my understanding of the difficulty that we face with the regulations on teacher redundancies is that the Department could lay the regulations over the summer recess. We could pray against them but they would come into effect because they were laid during recess under negative resolution procedure. However, if they were subject to affirmative resolution procedure, that scenario would not arise because cross-community support would be required. Is that correct?

5584. The Committee Clerk: As was pointed out, the requirement for cross-community support would be triggered only by a petition of concern, and the House would then affirm the regulations under affirmative resolution procedure. The Chairperson is right; if the particular regulations that were referred to earlier are laid over recess under negative resolution procedure, they could come into operation under the 21-day rule. However, under a 30-day rule that applies when the House is in operation, the House could pray against the regulations in September or October, depending on the statutory period for praying against the rules. However, the regulations could be brought into operation over the summer and, of course, utilised.

5585. The Chairperson: That is the difficulty. We could be praying against regulations that have already been introduced. If members are happy, we can request a paper on that. Who would provide that?

5586. Mr O’Dowd: Perhaps the Bill Office or a research officer could provide that paper.

5587. The Committee Clerk: I can certainly provide information on the negative and affirmative resolution procedures.

5588. The Chairperson: We will note down that there is a suggestion that the regulations should be subject to affirmative resolution.

5589. Mr B McCrea: I would like it to be recorded that I would be much happier if the regulations were subject to affirmative resolution.

5590. Mr O’Dowd: Can we also check whether a similar provision is included in the latest RPA legislation for other Departments? .

5591. The Chairperson: Before we go any further, I want to clarify an issue with the Clerk; we are now moving on to paragraph 7(1) of schedule 1, yet we still have to deal with paragraphs 3, 4 and 5.

5592. The Committee Clerk: At last week’s meeting, the Committee went through the other paragraphs and had no substantive comments to make, but there was some debate on paragraph 7.

5593. The Chairperson: As there was no comment on the paragraph entitled ‘Tenure of office’, we shall move on to the next paragraph, ‘Remuneration and allowances of members.’ That is a very touchy subject, to which members should have regard. Paragraph 5 is entitled ‘Employees’, and it sets out the role of the chief executive, and so on. The next paragraph is entitled ‘Remuneration, allowances and pensions of employees’. That brings us to the paragraph 7(1) of schedule 1, which falls under the heading of ‘Committees.’ Are there any comments on that?

5594. Mr Elliott: Can we go back a little to paragraph 5(4)? It states that:

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

5595. What will be the process for that appointment? Does that mean that the ESA board will appoint the chief executive but that the appointment will then need the approval of the Department?

5596. Mr Stewart: Yes. The ESA will carry out the necessary competition; it will choose a top candidate and then ask for the Department’s approval to make the appointment formally. The reason for that — and it is not as draconian as it might first appear — is that the chief executive of the ESA will be the accounting officer of that organisation and the Department needs to confirm him or her in that role. It is very important that the Department is in a position to do that.

5597. Mr Elliott: Is that normal procedure? Not being a member of any of the education and library boards, I do not know how they operate. Do they appoint a chief executive, or is that appointment open to scrutiny by the Department?

5598. Mr Stewart: The position with the education and library boards is the same.

5599. The Chairperson: Therefore, an education and library board carries out the interviews and makes all the arrangements in relation to the position. It then appoints the successful candidate and that appointment is sent to the Department for approval?

5600. Mr Stewart: That is correct.

5601. The Chairperson: OK. Are you happy enough with that Tom?

5602. Mr Elliott: Yes. Thank you.

5603. The Chairperson: Concerns were raised in the House this week about how Queen’s University, a public body, has, it seems, given its staff a large pay increase. In paragraph 4, which deals with the remuneration, and allowances of members, it is stated that:

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

5604. Does that cover salaries or additional expenses?

5605. Mr Stewart: That paragraph applies solely to the members of the ESA. Paragraph 6 contains a similar requirement regarding the salaries of employees.

5606. The Chairperson: Paragraph 6(1) states that:

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

5607. Mr O’Dowd: If there was an increase in board membership, would there be financial implications?

5608. Mr Stewart: Yes, there would be. Assuming that the remuneration levels remain the same, increasing the number of members would also increase the cost.

5609. Mr O’Dowd: What sort of remuneration levels are we talking about?

5610. Mr Stewart: I would have to check that and come back to you. There has been thinking in the Department as to what those levels should be, but I am not aware of the detailed figures.

5611. The Chairperson: Are the salaries, remuneration and allowances set by the Department, DFP or joint negotiating councils? Who ultimately has oversight or control?

5612. Mr Stewart: In a sense, it would be all of the above. The grading of senior posts in the ESA and the level of remuneration for those posts will be based on the outcome of a formal process of weighting and assessing the content of the posts. The grading of other posts would probably be fairly standard and would be based on recognised grades and structures in the education sector. However, all of that is subject to the approval of the Department and, thereafter, the approval of DFP.

5613. Mr D Bradley: Presumably the post of chairperson of the ESA is not a full-time salaried post.

5614. Mr Stewart: It is certainly not salaried. Again, I would need to check the details, but my understanding is that it is not intended to be a full-time position.

5615. Mr D Bradley: Would the remuneration for that post include — and I hate to use the word — expenses?

5616. Mr Stewart: Yes. Expenses would be part of that remuneration. I have no doubt that, in the current climate, the Department and the ESA will want to ensure that there is both robustness and transparency around the payment of expenses to anyone associated with the ESA.

5617. The Chairperson: That brings us to the paragraph 7, which is entitled ‘Committees.’ At last week’s Committee meeting, we explored with officials the possibility of amending paragraph 7(1) to read “ESA shall establish committees", instead of “ESA may establish committees". Subject to legal advice, Mr Stewart did not see that as being problematic; at least that is what it says on the piece of paper in front of me. Do you have an update on that?

5618. Mr Stewart: Sadly, I have to report that my optimism of last week was misplaced. Members will see from the Minister’s letter that she has made it clear that she does not see a need to specify the local or committee structure of the ESA in the Bill. The difficulty with the potential amendment that we discussed last week was that the use of the word “shall" starts to take you down that line. On further reflection, and with the benefit of some informal legal advice, we concluded that it simply would not be possible to make that amendment. If you say that an organisation shall do something, you really need to go at least one step further and say something in the legislation about what it is that that organisation shall do. Therefore, the amendment would commit us to specifying the committee structure in the Bill, and the Minister does not feel that that is appropriate.

5619. The Chairperson: Surely that goes right to the heart of what we are constructing? We are establishing an organisation that may or may not decide to establish committees. If the wording remains as it is, the ESA may establish committees. The inference is that it could equally decide that it will not establish committees.

5620. Mr Stewart: The Minister hopes to reassure the Committee on that point in one of the papers attached to the letter; she sets out clearly the Department’s thinking on what it will require the ESA to do as regards committees.

5621. The Chairperson: But, Chris, if it ain’t on the tin, it sometimes ain’t in the tin. That is the problem. So that members do not think that I am going on one of my rants, let me say that it is not about this Minister; it is about whoever the Minister may be in any future Administration. The Bill says that the ESA “may" establish committees. Therefore, as there is no legal requirement on the ESA to establish committees, a Minister could decide that there is no need to have them, or the board of the ESA could decide that it does not need them because it has all the information and can do the work itself.

5622. Mr Stewart: There is no automatic requirement in the Bill, but if the ESA were to attempt to make such a decision, the Minister would direct them otherwise. To carry the Chairperson’s analogy a little further, the Minister proposes that rather than writing it on the outside of the tin, to take the lid of the tin and show you what is inside.

5623. Mr D Bradley: You said earlier that outlining the structure of the committees would be problematic. Why would it be problematic?

5624. Mr Stewart: The Minister does not wish to specify the committee structure in the Bill because it would be inflexible. If it became necessary to change the structure of the committees as a result of the experience of operating the ESA, then it would be necessary to amend the primary legislation. That is, of course, not impossible, but the Minister does not feel that that allows for sufficient flexibility in the organisation, particularly in its first year or two of operation.

5625. Mr D Bradley: The Minister has specified the number of members and a safety net has been included. Could the same process not be applied to the structure of the committees?

5626. Mr Stewart: It is one thing to specify numbers and include a mechanism to change the numbers, but specifying the structure of the committees would involve much more detail. I cannot think of an easy way of creating the same sort of safety-net mechanism to allow that structure to be changed other than by amending the primary legislation.

5627. Mr D Bradley: There is a safety-net mechanism that would allow for a change to the number of members of the board of the ESA, so I do not see why there could not be a similar mechanism that would allow the committee structure to be changed by an Order.

5628. Mr Stewart: Although it would be difficult, it may be possible. If you are talking simply about the number of local committees, it would be possible to have a similar mechanism. However, that would not tell you anything about the configuration of the local committees or the other committees that the ESA would need for human resources, audit, risk management, and so forth.

5629. The Chairperson: We must clarify that. On page 13 of the Minister’s letter is the acceptance that:

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

5630. Are you saying that those 11 committees are being taken off the tin and that we are looking in?

5631. Mr Stewart: Yes.

5632. The Chairperson: The ESA is not, however, under any requirement to establish 11 committees. That may be the intention of the Minister, but the ESA may decide that it needs only six committees, not 11.

5633. Mr Stewart: You are absolutely correct.

5634. The Chairperson: A potential safeguard is similar to the one the Committee suggested during an earlier discussion; namely that an affirmative resolution could be set out in regulations.

5635. Mr Stewart: I was about to say that the likely mechanism would be regulations, and the Assembly could decide to make the regulations subject to the affirmative resolution control procedure. That is technically possible, but I am obliged to point out that it would be an extremely unusual approach. I am not aware of such an approach having been taken for any other of the bodies to be established under the RPA.

5636. Mr Lunn: The Minister’s comment on page 13 is that the ESA “will" not “may" establish.

5637. The Chairperson: In fairness, that is the Department’s paper.

5638. Mr Lunn: Last week, I suggested that the word “shall" might be substituted for “may". Frankly, having listened to all that has been said, I could not care a less.

5639. The Chairperson: I hope that Hansard records that.

5640. Mr Lunn: The ESA cannot exist without committees; that does not need to be confirmed because it is blatantly obvious. Whether the word is “may" or “shall", the ESA is going to have to establish committees.

5641. Mr B McCrea: Is that a proposal that we should insert, “is going to have to?

5642. Mr D Bradley: That means “shall", does it not?

5643. Mr Lunn: Or, “The ESA will have no option but to".

5644. At the top of page 13, the Minister suggests the establishment of four further important committees, but the Bill leaves it open in such a way that they can be designated and formed according to the requirements of the ESA as it evolves. We are becoming unduly suspicious about what is in the tin.

5645. Mr O’Dowd: Trevor helpfully pointed out that I raised the issue last week; I wish that I had not. We could be definitive at this stage by specifying “shall" and thus determining the structure of the committees; however, ahead of the RPA making progress on councils, particularly community planning in councils, that may restrict the input of local councils. Local planning that will work in Fermanagh will not work in north Belfast or west Belfast. It would be more helpful to allow local areas to find local solutions and the ESA to work locally on its committee structures.

5646. As for the ESA backtracking on its commitment, it exists to carry out the policies and decisions of the Minister; to the best of my knowledge, it is not a policy-making body. It is not contrary to any of the political parties’ policies to have coterminosity with local structures and Government agencies. Therefore, 11 seems to be a sensible number of committees.

5647. The Committee Clerk: That is where we are on membership.

5648. The Chairperson: The other element is the make-up of the committee, because schedule 1(7)(2) says:

“A person who is not a member of ESA shall not, except with the approval of the Department, be appointed to a committee of ESA."

5649. And 1(7)(3) says:

“ESA may pay to members of its committees who are neither members nor employees of ESA such remuneration and allowances as ESA may, with the approval of the Department, determine."

5650. That is reasonably straightforward. We do not have the composition of the membership of the local committees.

5651. Mr Stewart: No; that will be an operational matter for quite some way down the line.

5652. The Chairperson: I refer members to page 13 of the Minister’s letter, where she talks about:

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

5653. Do members wish to comment on the ESA establishing local committees? Should the Department’s position continue to be that the ESA committee arrangements should not appear in the Bill, are members content with such an approach or would they wish the Bill to require the Department to create and fix the number of local committees or to spell out their role and function and what regard the ESA and its local manager and delivery unit should have to local communities? Chris did say, although with a caveat, that he deems it highly irregular to have regulation and affirmative resolution to deliver such a provision.

5654. Mr Stewart: I would not, perhaps, use the word “irregular". It would be perfectly proper for the Assembly to take such a course of action, but the Minister would want to know from the Committee the reason for adopting such an unusual approach, as it is not taken elsewhere in the public service.

5655. The Chairperson: Another approach could be the inclusion of enabling provisions in the Bill for the Department to make regulations covering the composition, role and operation of local committees, and, perhaps, the ESA’s main sub-committees — the mechanism that the Department of Education proposes for the education advisory forum, which has been suggested. A component could include a timing requirement, possibly linking the commencement of part or all of the Bill to the making of the regulations. Members might also wish to consider where such regulations should be subject to positive or negative affirmation by the Assembly. That is an attempt to condense all the discussion that we have had.

5656. Mr B McCrea: Chris said that the Minister would want to know why. There is benefit in agreeing significant elements of the Bill by positive resolution because that allows us to develop a framework, and as working practice and trust builds, other things could be done. We should not let that opportunity to move things forward pass.

5657. The Chairperson: We move on to schedule 1(7)(2) and 1(7)(3). I note that the members who were present at last week’s meeting indicated that they were content with those paragraphs. Are those members who were not present last week content?

5658. Mr B McCrea: Where are we?

5659. The Chairperson: We are still at schedule 1(7)(2) and 1(7)(3). Are members content with those provisions?

Members indicated assent.

5660. The Chairperson: We move to schedule 1(8) “Delegation to committees and staff". 1(8)(1) permits the ESA to delegate any of its functions to any ESA committee or employee; schedule 1(8)(2) permits an ESA committee to delegate any of its functions to any ESA employee; 1(8)(3) makes such delegation of functions subject to law and to any regulations that the Department may make under 1(8)(4). Last week, after some discussion, members indicated that they were content with that approach. Do members wish to make any other comments?

5661. Mr Elliott: I assume that that is a working arrangement. The ESA will need to delegate power, but the delegation of too much power can lead to a loss of control. I am not sure what safeguard could be added to prevent that.

5662. The Chairperson: It is similar to other issues that we have discussed. Indeed, Chris Stewart said earlier that the approach is no different from what has happened before. Is that delegation of powers similar to what happened in the Health System?

5663. Mr Stewart: I cannot say that it is exactly the same in all cases. However, nothing in schedule 1(8) is particularly unusual compared to other organisations or to what has happened in the past. It is a fairly standard provision and approach.

5664. The Chairperson: Are members content?

Members indicated assent.

5665. The Chairperson: By virtue of clause 51, the regulations are subject to negative resolution only. Therefore, unless there is sufficient cross-community support for a motion that prays against the regulations, they will become law after being laid in the Assembly for a set period. Would the Committee prefer the Bill to require an affirmative Assembly resolution for regulations that necessitate certain ESA functions to be exercised by an employee on behalf of the ESA? Does schedule 1(8)(3) simply refer to the delegation of powers?

5666. The Committee Clerk: Yes.

5667. Mr B McCrea: As a general principle, all regulations should be subject to affirmative resolution.

5668. Mr Stewart: It is not for me to comment on policy, but such a technical arrangement would be perfectly possible.

5669. The Chairperson: We can return to that issue when we get the relevant paper.

5670. The Committee Clerk: That paper will outline the procedure on what will happen in the House.

5671. The Chairperson: It will also explain the issues concerning clause 51, which is important.

5672. The Committee Clerk: At present, that is subject to negative resolution.

5673. The Chairperson: We will return to that issue.

5674. Mr Lunn: Does negative resolution allow things to happen more quickly than affirmative resolution?

5675. The Chairperson: Yes.

5676. The Committee Clerk: The two types of positive statutory rules are when a regulation, for example, is affirmed or confirmed by the House. The House must pass a motion, but the problem is that the Minister will be there when that happens.

5677. Mr O’Dowd: Am I correct that, under affirmative resolution, the House would have to pass a motion every time the ESA asked Joe Soap to do something?

5678. Mr Lunn: That worries me too.

5679. Mr Stewart: The Committee Clerk correctly outlined the difference. The affirmative resolution procedure provides a stronger measure of Assembly control; it means that the regulations that govern what the ESA may or may not do would not come into operation unless the Assembly had formally given its approval. The negative resolution procedure is not as strong a means of control; it means that regulations or an Order could come into force unless the Assembly voted against it. The difference is the default position in each case.

5680. Mr B McCrea: Many things have to be done in the process of running a Government, among which is the making of regulations; however, it would be impractical to fill the Assembly’s time with such matters. Therefore, it is right and proper to use negative resolution to deal with non-contentious issues. The essential difference in this case is that significant issues are being discussed for the first time, and it would engender confidence and buy-in from people if, in the first instance, we used affirmative resolution. If the regulation were a sensible one, once powers had been deferred that would be the end of the matter.

5681. My difficulty is that negative resolution, allied with a petition of concern, means that proposals could be put forward that are against the majority will of the Assembly, even if they do not run counter to the rules and regulations. That would not be constructive or helpful. The clearest and most appropriate approach, given the contentious and essential nature of our work, is affirmative resolution. Once we had gone through the process, the regulations would be on the statute book.

5682. Mr O’Dowd: Now we get to the crux of the matter. He is trying to undermine the principles of the Good Friday Agreement and the St Andrews Agreement. I wondered what he was at, but now I see it.

5683. If I am reading it right, we are being asked, under schedule 1(8)(4)(a), to accept that the Department, by way of negative resolution, can

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

5684. and under schedule 1(8)(4)(b) the Department can:

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

5685. Under affirmative resolution, would every such decision be subject to an Assembly vote?

5686. The Committee Clerk: I will try to clarify that. Under negative resolution, an order still has to be laid and must go through the usual statutory period. It is not a quicker process, by any means; it takes exactly the same time. The only difference under affirmative resolution is that the House must make a choice at that point; it cannot just pass the resolution. The summer period, when the House does not sit, adds a further complication in that the Assembly cannot stop a negative resolution coming into operation. Under an affirmative statutory rule, the House must declare that it is content, and either affirms or confirms the resolution.

5687. The Chairperson: This is not about undermining the Belfast Agreement or the St Andrews Agreement; it is about creating confidence. The point that Basil was trying to make was that on contentious issues — and education is very contentious — affirmative resolution gives the Assembly more control than negative resolution. That is at the heart of the issue.

5688. I do not know whether the Bill Office can provide examples of the number of times we have used negative or affirmative resolutions. I guarantee that if we examine the procedures of the House we will discover that issues of concern were dealt with by affirmative resolution rather than negative resolution.

5689. Mr Lunn: I am glad that we had this discussion, because I am trying to get my head round it all. Are we over-complicating things? Whether an issue is resolved through negative or affirmative resolution, the House has the final say.

5690. The Chairperson: No, it does not.

5691. Mr Lunn: Tell me why not.

5692. The Chairperson: Let us go back to an example of which I have slightly more experience, the draft regulations on pensions, which we discussed earlier. They can be implemented using negative resolution because recess is approaching. Some — and I say “some" to keep myself in the clear — Committee members may say that there is a problem with those regulations; nevertheless, the Department will lay the regulations before the Assembly where they will sit for the stipulated 28 days before coming into operation.

5693. Mr Lunn: Can Members challenge them during recess?

5694. The Chairperson: Not until we come back in September. However, by the time that we could challenge or pray against them using a petition of concern, they would already be in force. To put it simply, the teachers would have received payments and the financial arrangements would be in place, and there would be nothing that we could do about it. That is the difficulty. I hope that I have not given a false interpretation.

5695. The Committee Clerk: That is the case. There could be a prayer of annulment in September or October or at any time within the statutory period, and that would annul the statutory rule. However, it could be in operation from the end of July until the House decided to annul it.

5696. Mr B McCrea: If regulations were introduced by negative resolution, a petition of concern could be made against them that one would have to win in order to overturn the decision; however, if the issue involved required a petition of concern needing cross-community support, one side might not be able to get that; it acts like a double negative. Therefore a simpler way of building trust would be affirmative resolution. If the regulations were sensible, why would anybody vote against them? They would go through on the nod, which happens quite often. For example, we take as read motions to suspend Standing Orders. However, one would wish to ensure that the will of the Assembly was respected on contentious matters.

5697. Mr O’Dowd: In either case, the will of the Assembly would be respected because the rules that govern the Assembly allow for petitions of concern. If a valid petition of concern were tabled and an Assembly vote on it carried, the will of the Assembly is respected. Those are the rules that govern the Assembly.

5698. Mr B McCrea: I cannot disagree with Mr O’Dowd; however, I was pointing out that when dealing with contentious issues or with matters that are being introduced for the first time, affirmative resolutions should be used to build trust. If matters are not contentious, have been on the statute books and in regular use for a long time or are merely procedural, people have fewer concerns. My position is clear, and at least we now understand the mechanism, which no doubt the Committee Clerk will explain further. Affirmative resolution creates much greater confidence, and I have no doubt that the officials will confirm that.

5699. Mr Elliott: I thought that Basil had clarified things, but then John come in and put a different slant on them. With respect to petitions of concern and cross-community votes in conjunction with negative or affirmative resolutions, am I right that if there is a negative resolution to a petition of concern, even if the House voted against the petition of concern, the outcome will still be an affirmative resolution? Is that right?

5700. The Chairperson: Yes.

5701. The Committee Clerk: A cross-community vote must be honoured.

5702. Mr Elliott: Moreover, even if there were an affirmative resolution to a petition of concern but there was no cross-community vote, the petition of concern would be negatived. Is that correct?

5703. Mr B McCrea: Correct.

5704. Mr Elliott: Thank you.

5705. The Chairperson: That explanation was even simpler than Basil’s.

5706. Mr Poots: If we went the route that Mr O’Dowd proposes — and he seems to be spotting reds under the bed — we would vest all power in the Minister; if we took the other route, we would vest power in the Assembly. The Minister of Education has substantial power. In the interests of public accountability, the Committee should ensure that the Assembly has as many teeth as possible to monitor the Minister’s actions. If changes must be made to the membership of the ESA, the Assembly should have the clout to say yay or nay to matters of concern.

5707. I suspect that it will not be an issue, and I suspect that most proposals will go through on the nod; however, in certain instances, that may not be the case. If the Minister has the powers that are suggested through negative resolution, the Minister will only need a particular party to sign a petition of concern to enable her to ride roughshod over the Assembly. That is not appropriate.

5708. Mr O’Dowd: I do not want any Minister to ride roughshod over the Assembly or to have unlimited power; all Ministers should be accountable to the Assembly. However, I am concerned at attempts to undermine the authority of a particular Minister. When parties raise concerns about the day-to-day running of a function of a public body, I become more concerned, because this provision is similar to clauses in the health RPA and other RPA Bills. I have reason to be concerned when members raise silly concerns about how to tie the Minister down or tie down the operation of a public body in the Assembly.

5709. Mr Elliott: They are not silly concerns; they are genuine.

5710. Mr O’Dowd: What is the genuine issue in this case?

5711. The Chairperson: Let us put some flesh on that bone. Schedule 1(8)(4)(a) says:

“The Department may by regulations—

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

5712. What are the possible “prescribed functions of ESA"?

5713. Mr Stewart: That whole provision might be less than the sum of its parts. For example, regulations could be established to ensure that certain finance or audit functions rest with someone who is professionally qualified in that discipline. I mentioned an example briefly last week: it might be prudent to ensure that the director of children’s services had responsibility for child protection and child welfare matters in the ESA. I hope that the ESA will cover that without the need for regulations, but they can be used if necessary.

5714. The Chairperson: The argument is not about a particular Minister; it is about creating confidence that the process is open and transparent. Edwin made the point that, by and large, most of the provisions will be passed anyway and that it is merely a safeguard.

5715. Mr Poots: Mr O’Dowd needs to calm down. This is not an underhand means of getting at a particular Minister. The Committee wants to secure as much accountability as possible for the public through the Assembly and the Committee. We will not dismiss sensible proposals from any Minister because of who that Minister is. If a proposal is submitted to the Committee or to the Assembly that is argued rationally and is in the best interests of education and the ESA, it will be passed. It is as simple as that. The Minister’s identity will have no bearing. However, if a Minister submits a proposal that is not in the best interests of education, I strongly reserve the right for the Assembly to hold that Minister to account and to challenge the proposal. We should not leave ourselves open for a Minister to drive proposals through without public accountability.

5716. Mr O’Dowd: In broad principle, I agree with Mr Poots that Ministers should not be able to drive proposals through. However, he needs to reread the Good Friday Agreement and the St Andrews Agreement if he wants to create a scenario in which Ministers have no power.

5717. My concern is not necessarily about affirmative or negative resolution; rather it is about why the members sitting opposite me feel the need, as we discuss every clause in the Bill, to find ways of preventing the Department or the ESA from taking a decision on the most irrelevant parts of the role of an organisation. If those parties are sincere in their argument, then the Committee should recommend — perhaps to the Committee on Procedures or another Committee — that the negative resolution procedure be removed from the statute book altogether, that no Department use that procedure and that the Assembly deal only in affirmative resolutions. That is really what you are saying.

5718. Mr B McCrea: I would not demur from that point of view. I agree with what Mr Poots has said, and it is right that the Members of the Assembly should have the opportunity to express their views. There is a diversity of views on the ESA, but there is also a requirement to get something for the ESA, and it may be possible that something like that would help to move things forward. There is no need for knee-jerk reactions or thoughts that we are trying to do something that would undermine the St Andrews Agreement.

5719. If nine out of 10, or 99 out of 100, issues go through on the nod, that is fine, but on the issues of greater importance, surely it is important that we have discussion and buy-in. If things are pushed through against the will of large sections of the Assembly, we could end up with a process in crisis. Frankly, I am surprised that Mr O’Dowd does not understand the point that is being put forward. It is a way of trying to create a balanced view, which I believe will help us to move the bigger picture forward.

5720. Mr O’Dowd: If that proposal is accepted, will you support the Education Bill?

5721. Mr B McCrea: I have already signalled to the officials that our concerns are not about the ESA or streamlining or efficiencies. Instead, our issue is that there appears to be people with a particular point of view that people who we represent disagree with, and we would like to find some way of that being taken into account. If a mechanism can be found in which the democratic process works, we would be prepared to give our support. If the ESA looked like it was going to be a bit more balanced and if there was a bit more Assembly control, we could find our way round to supporting it. Is that clear enough?

5722. Mr O’Dowd: No. [Laughter.]

5723. Mr Stewart: Someone asked about the provisions in the RPA legislation for the health sector. The Health and Social Care (Reform) Act (Northern Ireland) 2009, like the Education Bill, contains a mixture of Orders and regulations that are subject to both negative and affirmative resolution. As is the case with the Education Bill, the more commonly used mechanism is the negative resolution procedure. There are, I think, three occasions in the health legislation when it is specified that the affirmative resolution procedure should be used, and the one example in the Education Bill is similar. In all cases, that procedure is used when the regulation or Order would allow the Department to change primary legislation directly. By convention, the Department would not normally be allowed to do so without an affirmative resolution of the Assembly. Therefore, there is a consistency between the Health and Social Care (Reform) Act (Northern Ireland) 2009 and the RPA Education Bill.

5724. The Chairperson: Thank you for that, Chris. It is useful that we have had this discussion today. We will request some information on affirmative and negative resolution for next week’s meeting.

5725. Mr Lunn: I do not want to hold up proceedings as I know that we have a lot to do today. However, I cannot remember ever hearing anyone argue against the principle of negative resolution. Until today, I had never heard anyone in any Department argue against it in relation to any subject. As far as I am aware, it is regarded as a useful tool to use to get things done.

5726. Mr Poots: That is a fair point. However, if Mr O’Dowd were to say today that they would never use a petition of concern to negate a negative resolution — a double negative — that would make life a little easier.

5727. Mr O’Dowd: We have just had a lengthy discussion on how democratic it is to use the affirmative resolution procedure, yet the most important piece of RPA legislation to go through the Assembly, the Health and Social Care (Reform) Act, is full of negative resolutions. So, this matter is not about a principle that the Ulster Unionist Party holds dear; rather, it goes back to my concern that it is about trying to restrict a Minister in the Executive and in the Assembly. That is why I have strong objections to what is happening.

5728. It is also worth noting that every piece of legislation that goes through the Assembly, including legislation that is subject to the affirmative resolution procedure, could face a petition of concern. As far as I understand it, no legislation is exempt.

5729. The Chairperson: Part of the difficulty is that we have one Health Service in Northern Ireland, but five providers of education. That is the reason why these issues are so difficult. It is not about the Minister; it is about the sectors that we are providing for. As I said, there is one Health Service; people do not go to a maintained hospital or a controlled hospital. If we were to go down that road, we really would be in big trouble.

5730. Mr O’Dowd: Yes, but we are not discussing the principle of the Bill today, we are discussing the day-to-day running of the ESA.

5731. The Chairperson: However, out of that we are having a discussion about the broader issue of positive and negative resolution.

5732. Mr B McCrea: A point was made about the health legislation. As is his right, the Chairperson has summarised the issue. That legislation was not contentious.

5733. Mr O’Dowd: Tell that to the DUP; it went ballistic over it.

5734. Mr B McCrea: If the regulations are contentious, then people are right to say that they would like them to be subject to affirmative resolution procedure. My colleagues and I have made our reservations quite clear — if I have not done so, I apologise, but I have done my level best to be consistent and say what we are concerned about. The issue emerged as to whether affirmative, as opposed to negative, resolution would help us, and, yes, it would. I would even be prepared to consider whether — and Mr Stewart touched on this — the affirmative resolution procedure has to be used everywhere. Perhaps it does not.

5735. Nevertheless, the issue is that where there are genuine heartfelt concerns — and I assure you that we are raising concerns that have been raised by stakeholders and in evidence given to the Committee — the use of affirmative resolution would be a positive, trust-engendering process. I will not go on about it. I will simply say that the situation with education is completely different to the situation with health. There are contentious issues in education; otherwise, we would not be spending so much time on it.

5736. Mr McCausland: Chairman, in response to John O’Dowd’s point, you rightly pointed out that there are many education sectors. In these Education Committee meetings, we have heard expressed passions and sensitivities that would not be heard if we were talking about any other subject. It is also worth remembering that education is the one area in which special exclusions were made to accommodate certain sectors. That shows why it is such a contentious issue and why it is important that the fears and the concerns that are genuinely felt in various sectors are taken on board as we move forward.

5737. Mr Lunn: I picked up on what Mr McCrea said about the concerns that stakeholders had expressed about the operation of the negative resolution procedure. Did they express their concerns to the Committee? I cannot recall that happening. It would be too deep for most stakeholders.

5738. Mr B McCrea: Just to be clear; if I did not say it, I meant to say that stakeholders had expressed heartfelt concern about elements of the Bill and the way in which it is going forward. Mr McCausland made the point that there are concerns. I do not think that the stakeholders picked up on the issue of negative resolution. However, I think that there is a way to use this as a positive means of moving things forward.

5739. The Chairperson: The issue that stakeholders raised concerned clarity, and that would include the procedures that we use to make decisions. That was, perhaps, a point that was made by stakeholders.

5740. Mr Lunn: I have heard the point fairly well. However, for the record, I do not believe that stakeholders have raised the point about negative resolution specifically. In fact, today is the first time that it has come up.

5741. The Chairperson: We will return to that discussion. I ask that we move on to paragraphs 9, 10, 11 and 12 of schedule 1. I would like us to reach clause 2 in the next five minutes, and we will then stop. We will not get further than that because we have to hear presentations from the Northern Ireland Teachers’ Council and the Northern Ireland Commissioner for Children and Young People. I want to have this part of the meeting concluded by 12.15 pm.

5742. Paragraphs 9, 10 and 11 of schedule 1 provide for the ESA to make standing orders regulating its own procedure and that of its committees; to deal with the validity of its proceedings and the decisions of its committees in certain eventualities; and to deal with the application of the ESA seal, the execution of documents and the service of documents on the ESA. Members who were present at last week’s meeting indicated that they were content with those paragraphs. Does any Member who was not present last week have any comment to make? OK, there are no comments. As I said, remember that we will have a chance to go through all this again in the report.

5743. That brings us to paragraphs 14, 15 and 16, which provide for the funding of the ESA by the Department of Education and the Department for Employment and Learning; prevent the ESA from borrowing money; and require the ESA to keep proper accounts and to provide those accounts to the Department of Education, the Department for Employment and Learning and the Comptroller and Auditor General. Do Members have any views on those paragraphs? Members who were present last week indicated that they were content with them; obviously, those who were not present may comment now if they wish to do so. Again, not to rush the issue, but I assume that such provisions are standard.

5744. Paragraphs 17 and 18 of schedule 1 provide for the ESA to send an annual report to the Department of Education and the Department for Employment and Learning and for the laying of that report in the Assembly. They also provide for such other reports and returns that the Department of Education and the Department for Employment and Learning may reasonably require. Again, Members who were present last week indicated that they were content with those paragraphs.

5745. Paragraph 19 would add the ESA to a list of organisations whose members are disqualified from serving as MLAs. Members will recall that the Committee sought legal advice on that, which it considered at its meeting on 27 May. At last week’s meeting, Members were encouraged to refresh their knowledge of that legal advice. Copies of it are available if Members do not have a copy in front of them.

5746. As I understand it, the legal advice was that without paragraph 19 there would be no legal impediment. The legal advice on conflict of interest was broadly that an MLA declaring his or her membership of the ESA might be compared to an MLA declaring his or her membership of an education and library board. The question is whether the overarching nature of the ESA makes a difference. Do Members consider that a declaration of interest is sufficient, or would it be preferable to rule out the possibility of such conflicts of interest arising, as paragraph 19 would do? What are Members views on that? Were any views expressed on it last week?

5747. Miss McIlveen: The Committee was mindful that many members were absent, so it felt that it would be better to return to the matter at today’s meeting.

5748. The Chairperson: Rather than open up that discussion now, perhaps it would be better and wiser to make this the finishing point for today and pick the issue up again at a later meeting. I am minded to say that Friday’s meeting might last a lot longer than planned. If members can stay for longer on Friday, we will arrange a working lunch and continue to work our way through the legislation. We might also have to look at scheduling additional meetings. Therefore, are members happy if we stop at paragraph 19?

Members indicated assent.

5749. Mr O’Dowd: It is worth pointing out what was said earlier about how the ESA board will have an intensive workload and will require more members. I cannot imagine how any MLA thinks that he or she would have the time to sit on it.

5750. Mr Poots: They probably would not have the time. I do not think that it would be wise for MLAs to sit on the board of the ESA, but should they be excluded from doing so?

5751. The Chairperson: This is a personal anecdote: I remember that when I was a member of the Fire Authority for Northern Ireland, I had to resign in order to stand as an elected Member of the Assembly. I did not see that as being incompatible for the simple reason that I felt that one was becoming a part of a body which, through the Committee structures, has the power to oversee the work of the Department of Health, Social Services and Public Safety, to which the Fire Authority was accountable. I did not see an issue around that. However, other members might have different views.

5752. Mr Lunn: I cannot help thinking that, given the present circumstances and the quite unjustified discussions about double and triple jobbing, the Committee would look a bit foolish if it insisted on a change to legislation to allow MLAs to take on a very onerous extra position. On a practical level, it seems inconceivable to me.

5753. The Chairperson: We will draw this meeting to a conclusion, and I thank Chris and Jeff for attending.

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
Mr Jeff Brown

Department of Education

5754. 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.

5755. 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.

5756. 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.

5757. 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.

5758. 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.

5759. 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."

5760. I refer members to the note from the Clerk, which accompanied the code of practice. Chris, do you have a comment on that?

5761. 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).

5762. 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?

5763. Mr Stewart: Not as yet.

5764. 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?

5765. Mr O’Dowd: No.

5766. 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?

5767. Mr D Bradley: I am content to leave it as we outlined.

5768. 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.

5769. 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.

5770. 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?

5771. 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.

5772. 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.

5773. 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.

5774. 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.

5775. 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?

5776. The Chairperson: I had to stand down to stand, so to speak.

5777. Mr McCallister: I thought that there was time enough if someone was elected.

5778. The Chairperson: I thought so at the time, but I resigned before I stood as an MLA. I was taking a risk, I suppose.

5779. 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?

5780. 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.

5781. The Chairperson: As I recall, that was the process that I had to use. That is noted as a concern.

5782. 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.

5783. 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.

5784. Mr McCausland: Well, it could be worded the other way.

5785. Mr Stewart: It could, except that it is not education legislation; it is the Assembly Disqualification Act 1975. That is overarching.

5786. 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.

5787. 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.

5788. Mr Stewart: Fifty-three to go, Chairman.

5789. The Chairperson: It will be a long summer.

5790. 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?

5791. 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.

5792. 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?

5793. 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.

5794. 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.

5795. 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?

5796. 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.

5797. 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 —

5798. The Committee Clerk: The Deputy Chairperson may be able to throw some light on its contents; however, the letter seems to have gone astray.

5799. The Chairperson: Nevertheless, we are now in receipt of the correspondence, which deals with those issues.

5800. 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.

5801. The Chairperson: We have already agreed to forward that correspondence to the Department.

5802. 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.

5803. 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.

5804. Those points are contained in a letter that the Committee Clerk will forward to the Department.

5805. The Chairperson: We have agreed that already.

5806. 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.

5807. 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.

5808. 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?

5809. 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.

5810. 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.

5811. Mr McCausland: As long as there is equality across all sectors, my concerns would be addressed.

5812. 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.

5813. Mr O’Dowd: Is that not against the Trade Descriptions Act?

5814. Mr McCausland: What is the age limit?

5815. Mr McCallister: It is 108 or something. We will not get you in, Nelson. I am probably on my last legs in it.

5816. 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.

5817. The Chairperson: Chris, it raises a fundamental question: has the Assembly power to impose a duty to encourage and facilitate Irish-medium education?

5818. Mr Stewart: I believe that it does; I have not received any legal advice to the contrary.

5819. The Chairperson: Is that on the basis of the statutory duties contained in the Education (Northern Ireland) Order 1998?

5820. Mr Stewart: Yes.

5821. 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.

5822. 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.

5823. The Chairperson: That is why we need to see the amendments that the Department is considering before any decision is made.

5824. 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.

5825. The Chairperson: Will that amendment come at the same time?

5826. 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.

5827. 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?

5828. 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.

5829. Mr D Bradley: I would like it noted in the Committee’s report that that issue was raised.

5830. The Chairperson: OK, Dominic.

5831. 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.

5832. 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.

5833. 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.

5834. 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.

5835. 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.

5836. 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?

5837. 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.

5838. 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.

5839. 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.

5840. 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.

5841. 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.

5842. 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.

5843. 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 —

5844. 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".

5845. 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.

5846. 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.

5847. The Chairperson: We have dealt with clause 1 to clause 2(3). Clause 2(4) states that:

5848. 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".

5849. How do those words work in reality? What is the purpose of their inclusion?

5850. 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.

5851. 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.

5852. 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.

5853. 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.

5854. 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."

5855. 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".

5856. 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.

5857. Mr D Bradley: The aspiration is to achieve high standards, but, if the ESA does not achieve them, it cannot be held to account.

5858. 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.

5859. Mr Stewart: First, I congratulate you on your wise career choice in becoming a civil servant, and we welcome you to that body.

5860. 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.

5861. 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.

5862. Mr O’Dowd: Will the implementation of the legislation or the intention of such clauses be outlined further in the guidance notes?

5863. 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.

5864. 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?

5865. 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.

5866. 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.

5867. 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.

5868. 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.

5869. Mr Stewart: Do you want to tell him or shall I?

5870. Mr O’Dowd: I think that you should tell him and see what he says.

5871. 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.

5872. Mr Stewart: You could argue that because it is a perfectly reasonable interpretation of the clause as it is currently drafted.

5873. The Chairperson: Are members content for the Committee to get further clarification on clause 2(4) from legislative counsel?

Members indicated assent.

5874. 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."

5875. Members should go over clause 2(5), 2(6), 2(7) and 2(8).

5876. 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.

5877. 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).

5878. 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."

5879. 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"?

5880. 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.

5881. 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.

5882. 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"

5883. Is that the right one? Sorry, I was on the wrong page. I apologise. Do members have any further comments on that?

5884. 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.

5885. 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."

5886. 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?

5887. 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.

5888. The Chairperson: Do members wish to comment before we move into the detail of the clause?

5889. 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.

5890. 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".

5891. 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.

5892. However, those with reservations have made the point that it is very difficult to take any comfort from that clause without the sample schemes.

5893. 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.

5894. 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.

5895. 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.

5896. 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.

5897. Mr Stewart: That is a perfectly valid view, but the Minister does not yet share it.

5898. 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 —

5899. Mr Stewart: I think it was Jeff at that meeting.

5900. Mr D Bradley: It will be used in evidence against him.

5901. 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."

5902. Are you now telling us that that is not worth the paper it is written on?

5903. 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.

5904. At present, she is not convinced that it is necessary to take that extra step.

5905. 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.

5906. 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.

5907. 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.

5908. 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.

5909. 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.

5910. 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.

5911. 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.

5912. 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.

5913. 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."

5914. 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.

5915. 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.

5916. 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:

5917. 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.

5918. 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."

5919. 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.

5920. 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.

5921. 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?

5922. 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.

5923. 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.

5924. Mr D Bradley: That is unlikely.

5925. Mr O’Dowd: I would like another chance to study the document and then form a view whether we need regulations on the guidelines.

5926. 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:

ANIELB refers to the NEELB response to the Education Bill, and adds:

“However, the current vision of ESA is far removed from what the association originally envisaged."

5927. 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.

5928. 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?

5929. 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.

5930. 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.

5931. 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.

5932. 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.

5933. 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.

5934. 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?

5935. 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.

5936. 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.

5937. 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."

5938. 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."

5939. 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."

5940. Chris, can you explain how those two approaches can be reconciled?

5941. 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.

5942. 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.

5943. 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.

5944. 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.

5945. 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.

5946. 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.

5947. 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".

5948. However, in the controlled sector, that is not the board of governors.

5949. 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.

5950. Mr McCausland: All that is predicated on the assumption that the legislation cannot be changed to sort out the issue of a statutory body.

5951. Mr Stewart: That is correct.

5952. 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.

5953. 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.

5954. 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."

5955. 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.

5956. Mr Stewart: The group will meet in the next seven days; in fact, the meeting will be held next Friday.

5957. The Chairperson: So the meeting has been arranged?

5958. Mr Stewart: Yes.

5959. Mr McCausland: Am I correct in thinking that the group’s first meeting will take place in seven days’ time?

5960. Mr Stewart: Yes.

5961. 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.

5962. 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.

5963. 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.

5964. 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.

5965. The Chairperson: They are not, Chris; I would not do that.

5966. 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.

5967. 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.

5968. 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.

5969. 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.

5970. The Chairperson: It would be helpful for the Committee to see who has been asked to attend that meeting.

5971. Mr Stewart: Certainly; I am happy to provide the Committee with that information.

5972. 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.

5973. 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.

5974. 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.

5975. 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?

5976. Mr Stewart: In that instance, I think that it would still be boards of governors.

5977. The Chairperson: Yes, unless the Department establishes that ownership body.

5978. 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.

5979. 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."

5980. That is in the correspondence from the TRC — sorry, was it the departmental official who said that?

5981. Mr Stewart: Yes, it sounded like a well-crafted phrase. [Laughter.]

5982. 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."

5983. Are you saying that that is still the case?

5984. 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.

5985. The Chairperson: Do members have any other comments on clause 3?

5986. 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.

5987. 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.

5988. 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?

5989. 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.

5990. 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.

5991. 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.

5992. 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?

5993. 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.

5994. 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".

5995. 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."

5996. 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?

5997. 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.

5998. 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".

5999. 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.

6000. The Chairperson: Members will be content with that.

6001. 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."

6002. 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?

6003. 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.

6004. Mr D Bradley: That is not directed at you personally, Chris. The iron fist was a reference to the ESA.

6005. Mr Stewart: I cannot think what we have done down the years to deserve that reputation among educationalists. Nevertheless, I recognise their concerns.

6006. 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.

6007. 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?

6008. 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.

6009. Mr D Bradley: How do you see the ESA, as a single employing authority, improving on the arrangements that we have at the moment?

6010. 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.

6011. 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.

6012. 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?

6013. 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.

6014. The Chairperson: Has that been done yet?

6015. 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.

6016. The Chairperson: Has that offer been made to voluntary grammar schools?

6017. Mr Stewart: Yes.

6018. 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."

6019. How do you square that circle?

6020. 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.

6021. The Chairperson: Some people might argue that you can get those different types of legal advice.

6022. 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.

6023. 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.

6024. The Chairperson: Ultimately, that is dependent on getting approval from the ESA.

6025. 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.

6026. 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.

6027. 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?

6028. 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.

6029. 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.

6030. 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."

6031. Mr Stewart: The board is correct.

6032. 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."

6033. You would probably argue that that is the current situation.

6034. 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.

6035. 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.

6036. 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?

6037. 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.

6038. 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.

6039. 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.

6040. 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?

6041. 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.

6042. 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.

6043. 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?

6044. 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.

6045. 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".

6046. 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.

6047. 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.

6048. 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.

6049. The Chairperson: We now move on to clause 7.

6050. Miss McIlveen: Under what circumstances would the ESA ask for a revision of an employment scheme, and does that work both ways?

6051. 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.

6052. 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.

6053. Miss McIlveen: The Ulster Teachers’ Union was concerned about that being in place and that a school could change it willy-nilly.

6054. 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.

6055. Miss McIlveen: There would have to be good reason for it.

6056. Mr Stewart: Yes.

6057. 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."

6058. Is that still the case?

6059. Mr Stewart: Yes.

6060. 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.

6061. 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.

6062. 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.

6063. 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.

6064. 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?

6065. 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.

6066. 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."

6067. Mr Stewart: It does. The Assembly is all-powerful in that respect.

6068. 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."

6069. Mr Stewart: That is correct.

6070. 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.

6071. 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?

6072. 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 —

6073. Mr D Bradley: This clause is simply intended to replicate the services delivered at present by the education and library boards.

6074. Mr Stewart: That is right. This clause proposes nothing new.

6075. 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.

6076. 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?

6077. Mr Stewart: It is.

6078. 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.

6079. Will there be an amendment, Chris?

6080. 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.

6081. 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.

6082. The Chairperson: Here, too, it is urgent that we see the detail of the amendment.

6083. Mr Stewart: I accept that.

6084. 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?

6085. Mr Stewart: That would be a decision for boards of governors.

6086. Mr D Bradley: Would it be under management schemes?

6087. Mr Stewart: It would be under schemes of employment, perhaps, rather than schemes of management.

6088. Mr D Bradley: Would it be part of the employment scheme?

6089. Mr Stewart: Yes.

6090. The Chairperson: We have considered clauses 3 to 12. Next time, we will consider clauses 13 to 20.

6091. 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.

6092. 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?

6093. 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.

6094. The Chairperson: Why was the regulation made for CCMS?

6095. 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.

6096. 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."

6097. 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.

6098. 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.

6099. 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.

6100. Mr D Bradley: That might be why other people want certainty.

6101. 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.

6102. The Chairperson: Thank you, Chris and Jeff.

1 July 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr John McCallister
Mr Basil McCrea
Mr John O’Dowd

Witnesses:

Mr Chris Stewart
Mr Jeff Brown

Department of Education

6103. The Chairperson (Mr Storey): I welcome Chris Stewart and Jeff Brown. Thank you for coming, gentlemen, and please accept our apologies for the delay. I remind members that the object of this meting is to make decisions on the clauses before us today so that the Committee Clerk can provide the Committee with a meaningful draft report on which to work before September. I propose that Chris and Jeff interact with us as they have done on previous occasions, and we thank them for their assistance.

6104. Before we continue with our clause-by-clause scrutiny, starting with clause 13, members may wish briefly to consider several issues that were discussed at last week’s meeting, beginning with the composition of the membership of the education and skills authority (ESA). Issues raised included the number of members, whether the Bill should, or could, provide for the ESA membership to be representative of the community served by the schools, and whether that could be reconciled via appointment arrangements based purely on merit.

6105. If members are content, we will ask Chris whether he has an update on the Minister’s thinking on the issues raised by the Committee, particularly the number of members of the ESA.

6106. Mr Chris Stewart (Department of Education): There has been no change, Chairman; the Minister remains of the view that the representative model of the ESA membership is not the correct one to pursue. However, the Minister is still considering the issue raised by the Committee about the number of members of the ESA, and she has not yet reached a conclusion on that.

6107. Mr O’Dowd: Chris, I asked you before about the cost that each board member would incur: have you any further information on what each individual board member would cost a year?

6108. Mr Stewart: Sorry, John, I do not have that information with me. However, as I can ascertain it fairly easily, perhaps I could write to the Committee Clerk.

6109. Mr O’Dowd: OK.

6110. Mr Lunn: Chris, when you say that the Minister is not convinced about the representative approach, does that include councillors?

6111. Mr Stewart: No. The Minister’s view is that the model of membership set out in the Bill is the right one. That model is of a relatively small board, with the caveat that she is considering the numbers with a focus on managing the authority’s business, but with the requirement that the majority of members should be councillors to ensure local democratic accountability. I am sorry to disappoint you, Trevor.

6112. Mr Lunn: I am sure that I can live with that.

6113. The Chairperson: Chris, what obligation can be imposed on the Department to ensure that the composition of the ESA reflects the community that it serves?

6114. Mr Stewart: An amendment passed by the Assembly to the Bill would be binding on the Department and the Minister in making appointments.

6115. The Chairperson: Could paragraph 1 of schedule 1 be amended to include an obligation similar to that which applies to, for example, the Secretary of State in making appointments to the Equality Commission and the Human Rights Commission?

6116. Mr Stewart: It would be possible, Chairperson, but I would add a caveat: anyone contemplating such a course would want to take legal advice to make sure that there would be no difficulties with the legislative competence of the Assembly. I have no reason to think that there would be, but it should be run past the lawyers just to make sure.

6117. The Chairperson: I see that no members wish to comment. If the Minister has not reached a decision or is unwilling to move on the issue, what do members think about inserting additional heads in paragraph 2(2) of schedule 1 to allow for that possibility? Should I take it that members have expressed their opinions and we will return to the issue when we receive the report in September?

6118. 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.

6119. 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.

6120. 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.

6121. We could insert a head (c) that would read:

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

6122. We could do that, but it would require regulations, as Basil said, to bring clarity.

6123. Mr B McCrea: I just mean that there are two or three points that have yet to be negotiated. It is easier to get balance with a larger number of people on the board, although we have yet to decide what that number should be. One way of resolving the issue, in line with the general principles agreed last week, is that we deal with the composition of the membership by regulation.

6124. The Chairperson: I offer that to members as a possibility.

6125. The Committee Clerk: Does the Committee want to seek legal advice on the inclusion of such a head?

6126. The Chairperson: Do you mean seek such advice from our own legal advisors?

6127. The Committee Clerk: Yes.

6128. Mr B McCrea: If you mean on our legislative competence, that would be reasonable.

6129. Mr Lunn: The wording that the Chairperson suggests would surely be challenged by lawyers. What is meant by “representative of the community of Northern Ireland"? Which community? How many communities?

6130. The Chairperson: We will come to that issue later when we consider the definition of a “community governor". They live and work in the community, but what is the definition of a community?

6131. Mr Lunn: That refers to the local community; however, the “the community of Northern Ireland" is something completely different.

6132. The Chairperson: That is why it would be advisable for us to get a legal opinion on the Assembly’s competence to make that change.

6133. The Committee Clerk: The wording “the community in Northern Ireland" is used in the Northern Ireland Act 1998 in relation to the Equality Commission and the Human Rights Commission to achieve representation.

6134. The Chairperson: Paragraphs 7 and 8 of schedule 1 deal with the establishment of committees and the delegation of functions to committees and their staff. Is the Minister minded to bring forward regulations that would copper-fasten the structure of local committees? Are we any further on with that?

6135. Mr Stewart: The Minister has not formally indicated to me her response to the latest correspondence from the Committee. The position, therefore, subject to that caveat, is that the Minister is still not minded to specify the local structure or committee structure of the ESA. However, she is in receipt of a further letter from the Committee, and, before saying any more, I should, perhaps, give the Minister an opportunity to consider that letter and give her views.

6136. The Chairperson: It would be an option for the Committee to have a draft enabling provision to paragraph 7 of schedule 1 to provide for such regulations. The Committee could, when waiting for a response from the Minister and the Department to the letter, ask the Clerk to draft an enabling provision to paragraph 7 to provide for such regulation. I recall that the issue was to ensure that the structures of local committees were copper-fastened rather than have a bland statement that the ESA may establish committees. If the Committee were happy, that could be done and brought back to us at our meeting in September.

6137. Mr O’Dowd: On what course does that set the Committee? I am not sure about the procedure.

6138. The Chairperson: I will ask the Committee Clerk to explain the reason for doing that. It arises from concerns that were raised about the nature of local committees. The Bill states that “ESA may establish committees"; however, we do not know what size they would be. We know the relationship that they will have with the ESA because they will be under the ESA’s control.

6139. The Committee Clerk: Several key stakeholders and the Committee discussed the lack of clarity about what committees, if any, will be created by the ESA. Therefore the proposal was put to the Committee that an enabling provision could be included so that a regulation could be created to clarify the matter. The Committee could scrutinise a regulation and make a recommendation on it to the House.

6140. Mr O’Dowd: I understand that, but the Chairperson is suggesting that the Committee task you with a piece of work. On what journey will that piece of work take the Committee? Will it affirm that the Committee will go down a particular road or is it just a bit of exploratory work?

6141. The Chairperson: It will be exploratory work that will come before the Committee for consideration; that is all.

6142. The Committee Clerk: We would see where an enabling provision might go into the Bill; the Committee could consider it and decide whether it wishes to bring it to the House.

6143. Mr Stewart: May I ask for a point of clarification on the Committee’s intentions on that matter? It is a point in which the Minister will be interested and which will certainly help to determine her reply. Does the Committee envisage a straightforward and standard enabling provision along the lines of “the Department may make regulations", or will it be seeking something like the form of words that, I believe, were used in the letter: “the Department shall make regulations"? The latter would be a most unusual approach.

6144. The Chairperson: “May" would be consistent with what has been to the fore in regulations, although “may" has been part of the problem, as it is not specific enough. “May" may also mean “may not"; “Shall" means that there is an absolute requirement. Therefore, regulation — and this is the point that we are trying to get to — provides confidence and clarity; and various groups and organisations wanted clarity.

6145. Mr Stewart: There is no doubt that regulations would provide clarity. Some might argue that the use of “shall" might also give the Committee control over the Minister.

6146. The Chairperson: That would be no bad thing; we would be quite happy with that. Would it not be the case that the Assembly would have control?

6147. Mr Stewart: Yes.

6148. Mr B McCrea: I have indicated in the past that I would be comfortable with the issue where, in matters that we are not sure about and where the word is “shall", there ought to be a strong look at the practicality. It is the Assembly that has some say in the matter. It might help us to get through some difficulties. For my mind, although I am happy for people to come back and discuss it for the absence of doubt, I am happy with “shall".

6149. Mr O’Dowd: I am happy to look at the report when it is ready. However, we must also be conscious that once something is put in legislation or regulation it stops the evolution of committees. This will be a new structure for committees, and what will work in Fermanagh will not work in the heart of west Belfast. We need to be conscious of the fact that putting committee structures in regulations may work against us in the long run.

6150. The Chairperson: That concern will be taken on board when we consider the options.

6151. The Committee Clerk: If the Committee went down the regulations route, it would ask officials to produce a draft, and there would be discussion and consultation on the make-up of the regulations so that all the issues could be ironed out.

6152. Mr Stewart: That anticipates the Minister being content with the word “shall" rather than “may".

6153. The Chairperson: Yes.

6154. Mr B McCrea: We are talking along the lines that that is what will happen. However, can I have clarity on the point? If you were to go down that route, you could set regulations the first time, and, presumably, if the committee structures were not what you wanted, you could come back and change regulations at any time. You just have to come back and talk about it; it is not set in stone.

6155. Mr O’Dowd: Bad laws have a habit of staying on the statute book.

6156. Mr B McCrea: Yes, but we have professional legislators round here to ensure that we do not do that.

6157. The Chairperson: We have not made a great job of it to date. Several organisations, including the Governing Bodies Association, raised concerns about the employment relationships set out in clauses 4 and 5. We could ask the Committee Clerk to draft enabling provision on clauses 4 and 5 to reassure the Committee about the concerns raised by various organisations of losing autonomy and their ability to defend ethos. That was a major issue.

6158. Mr Stewart: I may be able to save the Committee Clerk some work. Having given further consideration to the Committee’s concerns about the need for regulations in that area, the Minister is persuaded by the argument that such enabling power and regulations would be a sound approach, and she will be proposing amendments to that effect. We will endeavour to let the Committee have a paper on the scope of the regulations in the next day or two and the wording of draft regulations as soon as we can after that. The paper will be detailed, and I hope that it will give members a clear picture of the content of the regulations and the amending clauses.

6159. Mr B McCrea: Can I ask for clarity? I am pleased that the Minister is considering regulation. Has she given any indication of whether that would be by affirmative or negative resolution?

6160. Mr Stewart: She has not. The Minister’s view is that the normal mechanism for such regulations would be the negative resolution procedure. However, she will want to consider the Committee’s arguments for adopting the alternative control mechanism.

6161. The Chairperson: Does the Committee have a preference? Obviously, we would be more comfortable with affirmative resolution.

6162. Mr O’Dowd: We should use the example of the most radical changes to go through under RPA thus far, which was the Health Bill, which, I understand, contains a considerable amount of negative resolution. The reconfiguration of councils is coming through the RPA, and negative resolutions will have to be included if that process is to operate successfully, smoothly and on time. It has worked thus far, and members can challenge it if they want. I see no reason why any member of the Committee or any MLA would wish to bog down Assembly business with affirmative resolutions. I am unsure whether the member opposite has thought about the matter: if the Department of Health, the Department of the Environment — indeed, all 10 Departments — followed that path, the Assembly would grind to a halt.

6163. Mr B McCrea: The Assembly spends all its time on Members’ private motions; to date, we have not dealt with the business that people elected us to do. I understand that negative resolution is used for administrative matters, such as the increase in school fees and further education college fees because of inflation; they are not unimportant matters, but they are mechanistic. In such cases negative resolution is entirely appropriate. However, when legitimate and reasonable concerns have been raised in the early stages, affirmation resolution by the Assembly — the democratic vote — would be a positive way not only to make good laws, which the members wishes, but to demonstrate to the electorate that we are scrutinising matters appropriately.

6164. The Chairperson: We have agreed to send a letter to the Examiner of Statutory Rules to ask for guidance, to which we will probably not receive a response until after recess; however, if it is returned over summer, we will issue it to members. However, the Committee will have to consider the matter when it returns in September — unless I recall the Committee during the summer. Everyone perked up at that. That letter could clarify some of those issues, Basil.

6165. The Committee Clerk: Last week’s note is useful, too.

6166. The Chairperson: Last week’s note on statutory rules is included in members’ packs. Before we move on, I want to ask about issues that we discussed last week. I understand from the Minister’s letter that the first meeting of the controlled sector advocacy body took place yesterday. The Committee still does not have a list of attendees.

6167. Mr Stewart: 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.

6168. 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.

6169. 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.

6170. Has the Minister had any change of mind on the concerns that were raised about pay equality and about how the controlled sector is dealt with? The Minister has ruled out having a rump of education and library boards remain to enable the establishment of a body that will be on an equal basis with the other sectors. Was that issue raised? I am sure that the issue of ownership was raised. Was the group that was brought together yesterday made aware of the Minister’s letter of 17 June to the Committee in which she said that she would not give the body the same equality of treatment as everyone else?

6171. Mr Stewart: I cannot say whether all those present or all those invited were familiar with the letter, but I am sure that some of them will have seen it. They will be familiar with the Department and the Minister’s proposals for the controlled sector, including ownership and representation. The Minister’s position on that has not changed; she remains of the view that the proposals on ownership that she put to the Committee are the right way forward.

6172. However, the Minister is conscious of the concerns that have been expressed and the need to ensure that there is equality, and she is conscious of the fact that we need to work hard and creatively in the controlled sector to overcome challenges in order to achieve equality. The central mechanism for doing so will be achieved if we ensure that we get the representative body up and running with the right membership, functions and composition to play that role.

6173. Yesterday’s meeting was a modest start. The summer creates difficulty, but we have tentatively arranged a second meeting of the group, which we hope will have a larger membership, for the third week in August. We will move forward thereafter, perhaps more rapidly and with more frequent meetings. The aim is to place that sector in the same position as all the other sectors by 1 January 2010.

6174. Mr O’Dowd: Am I correct in saying that the controlled sectoral support body and the Catholic sectoral support body are being treated in the same way? Is there any difference in approach? Do they have different rights or entitlements?

6175. Mr Stewart: No.

6176. Mr O’Dowd: The dispute is over the ownership body and the trustees. A section says that the Transferor Representatives’ Council should have rights or entitlements to membership of the ownership body of the controlled sector.

6177. Mr Stewart: That is correct. Many people disagree with the approach and are still concerned that the Catholic trustees will have an advantage because they are representatives of the sector and the legal owners of the schools. We do not agree with that, and we are seeking to persuade stakeholders that there is no advantage to the Catholic education sector that stems directly from ownership. As we have said to the Committee, ownership is not the prize; representation is the prize. No one will take part in the area-planning process because they own schools, but some sectoral organisations — including the controlled school body and the Catholic trustees — will have a place, as of right, in legislation, not because they own schools but because they are the body appointed to represent the interests of a particular sector and because they are the body that has been charged with fostering and developing the ethos of that sector. Therefore representation, not ownership, is the key to influence.

6178. The Chairperson: The fundamental difference is that they are separate and different, because one will be subject to section 75 appointment regulations and the other will not. That is inequality. How do you appoint people to the trustees of the maintained sector? You have to be from that sector.

6179. Mr Stewart: The Church appoints its own trustees.

6180. The Chairperson: It would be welcome if the Church were prepared to open up to section 75 obligations, but the documentation that it sent to us last week makes it abundantly clear that the Church has always regarded the Council for Catholic Maintained Schools as a Catholic organisation.

6181. In their document, they actually go as far as saying that anything other than CCMS is an arm of the state. Therefore, there is not equality. They are not being treated equally. That is the issue. That is why some of us are making it clear that you cannot have one version of equality that is to the advantage or disadvantage of someone else. You either have equality or you do not.

6182. Mr Stewart: I understand your concern and the point that you are making.

6183. The Chairperson: It is more than a concern; it is a reality.

6184. Mr O’Dowd: The reality is that the Catholic Church owns its schools. Therefore, it is, de facto, the ownership body. It does not matter whether you bring in section 75, the European Convention on Human Rights or Sharia law; that is the fact of the matter.

6185. The Chairperson: How do we become part and parcel of governing? Those schools take state money, so how do we ensure that they are treated the same as schools in every other sector?

6186. Mr O’Dowd: We ensure that they are treated the same through the powers of the Assembly and the Education Committee.

6187. The Chairperson: They are not treated the same in the governance arrangements.

6188. Mr O’Dowd: We can argue about the issue all day, but it is the last day of term, so I am not going to fall out with you.

6189. The Chairperson: So, there is no change in that.

6190. Mr Stewart: There is no change in that. I understand the point that you made, but I see little prospect of any Church being designated formally as a public authority for the purposes of section 75. You are quite right that the ownership body would be designated as a statutory body and would be subject to section 75. I cannot foresee any circumstances in which any of its functions would be significantly affected by that.

6191. The Chairperson: If 95% of Protestant children in Northern Ireland are educated in its domain and you open it up to section 75, there will be people on that body who represent a minority view and not a majority view. That is not equality.

6192. Mr Stewart: I disagree with that. The Minister’s paper makes the point that, for those reasons and others, she sees the ownership body as being small, narrow in remit and technical as regards the scope of its functions. It will do no more and no less than have the custodianship of the controlled schools estate. It will not have a range of functions that might give rise to the sorts of concerns that you have. Its remit will be deliberately narrow. For public policy reasons, it must be subject to section 75, but the controlled sector and those within it will suffer no disadvantage or advantage compared with any other sector because of that.

6193. Mr B McCrea: We know the arguments backwards and forwards, but it simply comes down to a perception of inequality, which we have to address. You may say that, in actuality, there is none, but I am aware that, at one stage, the Member sitting opposite me argued that voluntary grammar schools get all their money from the state so they should have to do what the state says. It is a counter-argument now because the ownership of the maintained sector is with the trustees, but the actual running costs and all the rest come from the state. There must be some mechanism that we can develop that gives parity of esteem and influence to both sections of the community. There must be some way to do that, because, if we do not do that, we will have great difficulty convincing people to move forward.

6194. Mr Stewart: I accept entirely the point that you made, as does the Minister, but we feel that the mechanism is the representative body. If the Assembly felt that the correct mechanism was that all bodies that owned schools had to be public authorities for the purposes of section 75, that would encompass the controlled schools ownership body, the Roman Catholic Church, the Church of Ireland, which still owns three schools, and all the voluntary schools. I do not see it as being consistent with public policy to make all bodies that own schools into public authorities.

6195. Mr B McCrea: Do you know what, Chris; I know that it is a bit radical, but I would almost think about challenging that. It is such a major issue, but the argument has been made that we have moved on from where we were in the 1920s and that to run schools now to the standard that we want requires public funds in large measure. That is really what this is all about. The notion that you hold buildings that you cannot afford to run is ridiculous. If there was no support from the state, many schools would be unable to survive.

6196. 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.

6197. 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.

6198. 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.

6199. The Chairperson: The Committee will return to that point.

6200. 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.

6201. Mr B McCrea: What about toys? [Laughter.]

6202. The Chairperson: No, no toys either.

6203. 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."

6204. 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.

6205. 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?

6206. 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.

6207. One of the most frequent representations that was made to the Department when it brought forward the RPA proposals was that the CASS officers were, and are, a very dedicated group of hard-working individuals, but that the nature of CASS services is such that they tend to be inflexible and not sufficiently responsive to the changing needs of schools. That is one area in which we have listened to stakeholders, and we feel that the thrust of what they are looking for is reflected in clause 13. We also feel that it is capable of meeting the concerns that they have expressed.

6208. Mr D Bradley: Which of the directors of the ESA will be responsible for that area?

6209. Mr Stewart: I am not familiar enough with the roles and responsibilities of the directors. I will need to check and return with that information.

6210. Mr D Bradley: I can tell you that it will be the director of education quality and standards. Furthermore, the proposals for the director level structure of the ESA contain a job description for that post, which states:

“He/she will provide strategic advice to DE on policy issues related to education quality and standards."

6211. Is that not a reversal of the role? I thought that Department was to provide the policy, not the ESA.

6212. Mr Stewart: The Department will very much provide the policy, but I think that we would draw a distinction between providing advice to facilitate the development of policy and providing policy. The former is a statutory function of the ESA, the latter is solely the function of the Department.

6213. Mr D Bradley: The job description also states:

“He/she will have responsibility for ensuring the effective monitoring of performance at regional, local and school level, the identification and dissemination of best practice and the establishment of effective arrangements for identifying and addressing areas for improvement in schools and other settings."

6214. Is that not straying into the Education and Training Inspectorate’s area of responsibility?

6215. Mr Stewart: I do not regard that as being the case. The role of the Education and Training Inspectorate is to provide the evidence by which that particular director, and indeed the Department, will judge the success, or otherwise, of the services that have been provided. However, the responsibility and the formal line of accountability go from the ESA to the Minister, and, subsequently, through the Minister to the Committee and the Assembly. It does not begin at the Education and Training Inspectorate.

6216. Mr D Bradley: That seems to be an overlap of function. In any case, under article 37 of the Education (Northern Ireland) Order 1998, the General Teaching Council (GTC) for Northern Ireland has a duty to take an advisory role in

“the training, career development and performance management of teachers".

6217. The GTC suggested that some reference to that should be included in clause 13 of the Bill. However, you said, in response, that that would merely be a duplication. Surely a reference to, and an acknowledgement, of the GTC’s role in that clause would highlight that relationship and the need for the ESA to act under that particular directive.

6218. Mr Stewart: It would. However, my point comes, as perhaps you would expect, from a technical standpoint: it would make no difference to the effect of the law in practice. Any effect would be purely symbolic, and the Minister is not, at present, convinced that there would be sufficient value in making the change that the GTC suggested.

6219. Mr D Bradley: I take your point that the Minister does not see the value, but the body that has responsibility for the professional development of teachers does; surely its views are worth something.

6220. Mr Stewart: GTC’s views are worth a very considerable amount indeed, but it is up to the Minister, having considered those views, to decide on the policy. At present, she is not convinced that the change to the Bill suggested by the GTC is necessary.

6221. Mr D Bradley: From an operational perspective, will any major change in the provision of advisory and support services to schools occur as a result of that particular clause?

6222. Mr Stewart: The short answer is yes. Changes are required, because that is what schools have told us. Schools stated that the current range of support services that is provided is not sufficient to meet their needs. In the view of schools, the current services are not sufficiently flexible and are not adapting to the changing needs of schools. I cannot give you a detailed description of what form the support services will take after 1 January 2010. However, the Department is convinced of the need for change, because it listened to those in education who told it so.

6223. Mr D Bradley: Is part of that need for change a movement towards a mixed economy of provision?

6224. Mr Stewart: Yes, but not because we are committed to any particular pattern of provision. We are not starting from the standpoint of trying to achieve a particular configuration of providers. The driving force behind the change must be that the services provided meet the need of schools. The way to bring about that change, and quickly, is to remove the guaranteed monopoly that currently exists and open up the market to other providers. That is not driven by any attempt to privatise support services, but by a desire to improve the standard, quality and nature of the services that are provided to schools.

6225. Mr D Bradley: It could be argued that there are two aspects to training teachers: the corporate training of teachers as a group in a particular school or area; and the professional development of the individual teacher. Does that clause make provision for both the corporate development of teachers and their individual development?

6226. Mr Stewart: Yes, it does. It is very wide-ranging in scope. It covers the full range of staff in the school and the governors, and their full range of training and development needs.

6227. Mr D Bradley: Will the RTU, which provides training for principals, vice-principals and so on, come under the ESA?

6228. Mr Stewart: Yes, it will. Technically, the RTU is a part of the Belfast Education and Library Board, but it operates on behalf of the whole education system. As part of the Belfast board, it will be subsumed into the ESA and its functions, along with those of CASS, will transform and develop within the ESA.

6229. Mr B McCrea: It is not clear to me why the Department opposes the position of INTO. I am sure that I heard in the past that the real, overall objective is maximum devolved autonomy. There seems to be some benefit in having a balance between providers and budget holders.

6230. Mr Stewart: That is correct. I would not characterise our stance as one of disagreement with INTO or NAHT. It is perhaps more the case that we are agreeing furiously with them. Like them, we see the need for a mixed market, but we are not keen on changes to the legislation that will have no practical effect. We are not keen to saddle schools with additional bureaucracy that will not contribute to meeting educational need. That is why we are resistant to the notion of, for example, a charging regime that would operate between schools and the ESA in relation to the services that the ESA will provide. We do not see that as a particularly efficient use of resources. It would require staff and arrangements in the schools and in the ESA simply to pass public money from schools to the ESA and vice versa. That is not a particularly advantageous use of resources.

6231. Mr B McCrea: One of the arguments in the debate between the controlled and voluntary sectors centres on the freedom that the voluntary sector has on a whole range of things. They find the bureaucracy involved in going through central services stifling, and that is a problem. Obviously, some schools will have the ability and desire to take on more of the administrative function than others. With more imagination and more attempts to work with people, you could devise a set of operating conditions that would satisfy all parties.

6232. Mr Stewart: You are entirely correct. We have no objection whatsoever to schools having budgets and being able to use those budgets to procure services or, perhaps, provide them directly for themselves. However, I draw a distinction between going to third-party providers and charging arrangements that would operate between the ESA and schools. The former would give the sort of flexibility that you suggest; the latter would make the current arrangements more expensive to operate.

6233. Mr B McCrea: In the spirit of compromise, I think we could do better with this clause or, I hate to say, regulation. Some way of giving reassurance and of addressing the concerns raised by a number of parties could be found while trying to ensure that we get value for money. There seems to be scope for getting a win out of this issue.

6234. Mr Stewart: There is, but I wonder whether some of the stakeholders see obstacles that are not there, even under the present arrangements. I can provide an example. The area learning community in Ballymena, which includes all nine post-primary schools in that area, carved out some resources from the budgets of the various schools and employed a retired ex-board officer to work on their behalf on a range of initiatives, both to give the schools the capacity as a learning community to respond to policy-development consultation exercises and to look at the development of services for those schools.

6235. It is a very good idea; it appears to be working well, and the schools are positive about it. That was possible even under the current legislation and arrangements; there was no impediment whatsoever. Our view is that when schools have good ideas and want to do things, either individually or in groups, the ESA should fund them to do those things.

6236. Mr B McCrea: We are in danger of agreeing violently on that point. I absolutely agree with the idea that you outlined. I, too, would support them in what they want to do. However, the big difference is that, although it may be possible for them to do that, having read those clauses, some people are concerned that the ESA might end up taking an “our way or no way" approach. Although one might be able to do it, if somebody were to take a different view, the ESA will still have the power. Therefore, I am simply suggesting that there ought to be some way to codify the powers outlined in the example that you gave so that a better balance can be achieved. I shall rest my case on that point. I am just saying that it would help a lot of people if they felt that the ESA would do that. Maybe you could look at a form of words?

6237. Mr Stewart: I understand that concern, which arose in respect of a number of provisions in the Bill and, indeed, with respect to previous legislation. When stakeholders are not fully convinced by an approach, they tend to interpret legislation with that doubt in mind, whereas our purpose with legislation must always be to provide a safety net or backstop. If we were to leave out that clause, or the bits of it that impose duties on the ESA, we would leave scope for the failure to provide the necessary training and development services in education. The Department’s responsibility is to ensure that no school, or group of schools, can fall through the net.

6238. At the end of the day, some body has to be responsible for ensuring that those services are available and be accountable to the Minister and the Assembly for what happens. That body is the ESA. Some stakeholders tend to interpret such clauses to mean that the ESA will have a command-and-control approach and that it will be its way or no way. That is not the intention behind the clause, or any similar clause, and we would not permit the ESA to operate in such a manner.

6239. Mr B McCrea: Could you not find a way to codify those powers in order to address people’s legitimate, but, perhaps, erroneous, concerns? If would help us if you would formulate some form of words or an amendment to indicate the intention of the legislation.

6240. Mr Stewart: 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.

6241. 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?

6242. 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.

6243. 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.

6244. 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.

6245. The Chairperson: Could you provide the Committee with that?

6246. Mr Stewart: Yes, certainly.

6247. The Chairperson: There is an issue about the fact that clause 13 says:

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

6248. That could be “provide and secure". There is an issue about a school having to go back to the ESA to secure and provide training and advisory support services. That is a move into a very mixed economy, and there are concerns about that. The transferors have already raised concerns about CASS and the fact that religious education was not being provided for under the current provisions, and they said that an appropriate level of curricular support must be re-established and further developed. That was a huge issue.

6249. Another issue raised by the Forum of Nursery Teachers (FONT) in its submission concerned private, voluntary and statutory nursery provision. It was very concerned about the way in which nursery school principals had been treated, and it felt as if it was separate from much of the other current provision. The Department’s response was that the duties in clause 13 relate to all grant-aided schools, including nursery schools. Is there further scope to address their concerns?

6250. Mr Stewart: Our contention would be that the clause does address FONT’s concerns. If I recall correctly, its feeling was that nursery school principals in particular were not receiving the same level of service as principals of other schools. Our view is that the clause as drafted applies to all schools, and that includes nursery schools. Therefore, the rights of nursery school principals that stem from that clause are the same as the rights of principals of any other schools. If there is any difference or inequality in practice on the ground in the ESA’s discharge of that duty, we would want to take that up robustly with the ESA.

6251. The Chairperson: In its submission, FONT claimed that since the legislation came into existence in 1970, and through all the various changes, the nursery sector has still not received the same level of support and provision as other sectors.

6252. Mr Stewart: I understand that concern. I am not in a position to comment on the extent to which what they are saying is correct. However, if one assumes that it is correct, that stems from a deficiency in practice rather than a deficiency in legislation.

6253. The Chairperson: Members, we are now out of quorum and cannot make any decisions.

6254. Mr D Bradley: Is there any major difference between this clause and clauses in previous legislation that obliged the education and library boards to provide training and advisory support services?

6255. Mr Stewart: They are very similar in construction to some previous clauses.

6256. Mr D Bradley: So, there is nothing radically different in the legislation.

6257. Mr Stewart: I could not claim that there is anything radically different.

6258. 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".

6259. 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.

6260. 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.

6261. Secondly, and this is an area where legislation is radically different, for the first time we are placing clear statutory duties on the ESA and on boards of governors to exercise their functions with a view to raising standards of educational attainment. That is covered in one of the clauses that we discussed last week. Colleagues in education and library boards put to us the justifiable concern that responsibilities, particularly those of the education and library boards, are not clear in current legislation. We have taken radical steps to change that in the legislation. However, the more functional part of the legislation does not need the same radical change that the practice does.

6262. The Chairperson: One could argue that the lack of clarity of previous legislation has been replicated in the Education Bill, and that is evidenced by the discussion that we have been having for the past 10 or 15 minutes.

6263. Mr Stewart: One might take a different view. It depends on the extent to which the Assembly wishes to have a highly detailed and highly codified approach to legislation or whether it wishes to take the more traditional, dare I say?, Westminster approach, of having broader and more enabling powers that allow for a more flexible discharge of function. That is a matter for the Assembly. If the Assembly’s preference is for a more detailed and more codified approach, I am sure that that is the approach that we will take.

6264. The Chairperson: Last week we raised the issue of clause 2(4) in which it is stated that:

6265. How does that tie in with clause 13?

6266. Mr Stewart: Having failed to persuade you that your concerns were unfounded, we have referred the matter to the Office of the Legislative Counsel and asked for his advice, but I am confident that his advice will be similar to mine.

6267. Mr O’Dowd: If it is not, he will be in trouble.

6268. Mr Stewart: If it is not, I will be in trouble.

6269. The Chairperson: Clause 14 places a duty on the ESA to provide library services to grant-aided schools and other educational establishments that are grant-aided by the Department. It is always useful for members to have the spreadsheet in front of them; it provides details on the bodies that made submissions and their comments. NIPSA talked about the need for a link between the ESA and the Library Authority. The Department said that it cannot see why there is a need for that link, given that clause 18 contains provisions allowing the ESA to co-operate with and enter into formal arrangements with the Library Authority. The Belfast Education and Library Board was supportive.

6270. Mr Stewart: 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.

6271. 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."

6272. Mr Stewart: Is the board referring to a different clause?

6273. The Chairperson: It may refer to clause 15; the board has probably linked clauses 14 and 15.

6274. Mr Stewart: There is a difference between “provide" and “secure", but there is nothing sinister in that.

6275. Mr D Bradley: The role of school librarian is becoming more complex with the availability of information technology and all that that opens up. One would imagine that it would, therefore, be extremely important that such a person be knowledgeable about the curriculum and about how the school library could help to support and develop it. Is there any provision in the Bill to ensure that similar professional development is available to school librarians as is available to teachers? Is that covered by the previous clause?

6276. Mr Stewart: Librarians are employees of the ESA. That is not covered by the previous clause. Librarians’ professional development and training is an operational matter for the ESA; it is not prescribed in any way in legislation.

6277. Mr D Bradley: You are saying that it is not covered in the Bill.

6278. Mr Stewart: I apologise; my colleague has, rightly, pointed out that my previous answer was slightly incorrect. Where such staff are based in schools, their professional development and training would, indeed, be covered by that clause; where they are based in the ESA, it would not. However, their professional development would be a matter for the ESA.

6279. Mr D Bradley: When they are based in schools —

6280. Mr Stewart: They are covered by the previous clause.

6281. Mr D Bradley: Therefore they are considered to be staff under clause 13.

6282. Mr Stewart: Yes.

6283. The Chairperson: Would the Department have an agreement between the ESA and the Library Authority that would address the staff development concerns that have been raised by NIPSA?

6284. Mr Stewart: Yes. Indeed, given that the public library service is likely to be the larger partner, as it were, we would envisage such an agreement and opportunities for secondment of staff between the two organisations to facilitate professional development.

6285. Mr D Bradley: The Committee for Culture, Arts and Leisure raised that issue with the new chief executive of the Library Authority. She seemed to be of the opinion that there would be a service-level agreement between the Library Authority and the ESA to ensure that such professional back-up would be available to school libraries from the authority. Is that your understanding?

6286. Mr Stewart: That is my understanding of the proposal.

6287. The Chairperson: We will move on to clause 15, which is entitled:

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

6288. 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."

6289. 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".

6290. 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.

6291. 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.

6292. 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.

6293. 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.

6294. The Chairperson: Clause 16 is entitled: ‘ESA to pay capital grants to voluntary and grant-maintained integrated schools’.

6295. 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.

6296. Clause 17 is entitled:

“ESA to pay superannuation benefits of teachers".

6297. That clause provides that the superannuation benefits for teachers, which were formerly paid by the Department, will now be paid by the ESA.

6298. Members should stop me if they feel that I am moving too quickly.

6299. 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?

6300. 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.

6301. The Chairperson: Clause 19 is entitled:

“Power of ESA to undertake commercial activities".

6302. 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.

6303. 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.

6304. 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.

6305. Mr Stewart: It was not available in the same way. However, it is a fairly standard provision for many public authorities. You are right to point out the need for checks and balances, but extensive checks and balances are contained therein. We must be absolutely certain that the ESA does not put its core purpose and functions — to provide support for the delivery of education in Northern Ireland — at risk when taking advantage of commercial opportunities. That is why those checks and balances exist for approval by the Department.

6306. However, in common with other public authorities, it is reasonable to allow the ESA the opportunity to supplement the education budget by engaging in commercial activities. We do not have specific examples in mind, and specific proposals are not being introduced at the moment. However, there may be scope for materials that it develops for professional development and curriculum support to be made available to other education authorities in other jurisdictions. If those opportunities exist, it seems reasonable to allow the ESA to take advantage of them. However, I say that with the important caveat that the ESA’s primary function must always be to support education providers in Northern Ireland.

6307. Mr D Bradley: Does that clause include examinations fees and so on?

6308. Mr Stewart: I think that it does.

6309. The Chairperson: When discussing clause 18, the Department’s response was that if the receipts realised in a year exceed the forecast, the Department will consult the Department of Finance and Personnelabout the appropriate treatment of those receipts. Is regulation required to formalise that arrangement?

6310. Mr Stewart: I do not think that regulation will be required. DFP would simply instruct us on what to do with any excess receipts. Either the Northern Ireland block as a whole would benefit or, perhaps, the benefit would be split between the Northern Ireland block and the education budget. The ESA would not retain receipts. They would have to be used according to the priorities for education determined by the Minister and the general priorities for public expenditure determined by the Executive and the Assembly.

6311. The Chairperson: Does the Libraries Act (Northern Ireland) 2008 contain an appropriation clause?

6312. Mr Stewart: I am not familiar enough with that legislation to comment.

6313. The Chairperson: I think that there is. We raised that issue to determine whether we should consider such a clause. Is it a requirement to have the same appropriation clause?

6314. Mr Stewart: I will check and come back to you. I cannot comment on whether that particular provision exists in the Libraries Act. We did not receive advice or representations from DFP that such provision should be included in the Education Bill. If it will assist the Committee, we will ask DFP for its views on the matter.

6315. Mr D Bradley: Have existing or former educational bodies — statutory bodies, that is — engaged in commercial activities? Do you have examples?

6316. Mr Stewart: I cannot give particular examples today. I suspect that the organisation most likely to have done so is the Council for the Curriculum, Examinations and Assessment (CCEA). If it will help the Committee, we can ask CCEA and other bodies for examples.

6317. Mr Lunn: The North Eastern Education and Library Board said that it had to forego commercial opportunities in the past because such a provision did not exist. As well as asking for examples, you could ask what it had to forego.

6318. Mr Stewart: I am happy to do so.

6319. The Chairperson: Clause 20 deals with the power to confer functions on the ESA in relation to civil contingencies. This enabling clause allows the Department to confer powers or impose duties on the ESA in relation to emergency preparedness and response. Will that take into account existing contingency arrangements? What was the relationship between the boards and other stakeholders on the current arrangements for contingency planning?

6320. Mr Stewart: Clause 20 has a converse effect to the clauses that we have discussed previously; the relationships and the roles do not change, but the legislation does. The purpose of the clause is to put the existing informal arrangements on a statutory footing.

6321. Mr D Bradley: Will Gavin Boyd have a bunker?

6322. Mr Stewart: No, and we will think very carefully about whether we let him into ours.

6323. Mr B McCrea: Putting him in a bunker is OK; the problem is letting him out.

6324. Mr Lunn: Will the Minister have a bunker?

6325. The Chairperson: Will we have a bunker?

6326. Mr B McCrea: There is an equality issue in that.

6327. 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.

6328. The Chairperson: We move to clause 21, which deals with the dissolution of certain statutory bodies, and clause 22, which deals with the transfer of assets, liabilities and staff. Those clauses are covered in schedules 3, 4 and 5. I will not read through the clauses and schedules, but I remind members and departmental officials that some members suggested that the issue of equality between the various ownership bodies and submitting authorities could be addressed, in part at least, by retaining, in much reduced form, the education and library boards. The legislation would provide for those boards to have a purely property-owning function.

6329. As we discussed earlier, the Minister ruled that suggestion out in a letter of 17 June. Last week, one member called the issue of the ownership body for controlled schools a potential train wreck. Have members amendments to avoid that scenario? Chris, do you have anything to say on the issue?

6330. Mr Stewart: I do not have much to add. Members are familiar with the Minister’s position as set out in the letter; she does not support retaining education and library boards, even in part.

6331. The Chairperson: We move on to clause 23, which places a new general duty on the Department of Education and the Department for Employment and Learning with regard to the education of children and young persons and with the promotion of further and higher education. I remind members of the Department’s response to the Western Education and Library Board’s suggestion of a commitment of lifelong learning for people of all ages. The Department said that it would bring that issue to the attention of the Department for Employment and Learning. Has anything been done on that?

6332. Mr Stewart: I will have to check. The matter is definitely one for the Department for Employment and Learning rather than the Department of Education. The Department for Employment and Learning has not said that it wants any changes to the clause with regard to its general duty.

6333. The Chairperson: The Irish National Teachers’ Association (INTO) mentioned the lack of integration between the Departments on the education of young people aged from 14 to 19 years.

6334. Mr D Bradley: NASUWT also raised that issue.

6335. The Chairperson: That is correct.

6336. Mr D Bradley: What was the Department’s response to the issue that the teachers’ unions raised?

6337. Mr Stewart: Will you remind me of the bigger issue?

6338. Mr D Bradley: The teachers’ unions said that it would make sense for a single Department to be responsible for the education of children between the ages of 14 and 19.

6339. Mr Stewart: I note their view; however, that is a matter for the Executive and OFMDFM to consider.

6340. Mr D Bradley: Is the Department minded to raise that issue with them?

6341. Mr Stewart: I do not think that it would be appropriate for the Department to raise the issue of the number of Departments and their relative responsibilities; that is a matter for the First Minister and the deputy First Minister.

6342. The Chairperson: In its response the Department said that alternative education provision was under review. Has anything come from the Department on that?

6343. Mr Stewart: Not that I am aware of; that is not an area in which either my colleagues or I work. We can check with our other colleagues and come back to you.

6344. I am told that a review is taking place.

6345. The Chairperson: That was the response —

6346. Mr D Bradley: How many reviews is the Department reporting on?

6347. Mr Stewart: Far too many.

6348. The Chairperson: There was probably a review of that, too.

6349. Mr B McCrea: At the round-table discussions, the question was asked, under clause 23(3)(b), whether the Department should also be responsible for promoting the mental health of young people; people were very concerned about issues such as suicide. Dominic and I heard representations from people who said that we should be looking at that issue. Should we be doing that? We have discussed just about everything except mental well-being.

6350. Mr Stewart: That is an interesting issue that, until now, has not been raised specifically with us. Work is ongoing across Departments to produce, among other things, suicide prevention strategies. It is recognised that education in general and schools in particular have an important role to play in that. I hesitate to go much further.

6351. It is one thing to acknowledge the role that education can play in addressing many issues; it is quite another to say that there should be a specific reference to mental health in the general duty of the Department of Education. There will be arguments for and against. However, the issue has not been raised with the Department before now, and there are no plans, at present, to include anything.

6352. Mr B McCrea: If the Department is prepared to promote spiritual, moral, cultural, social, intellectual and physical development, it seems strange that it is not prepared to promote mental well-being. Arguments were made about the effect that children’s mental well-being has on their educational development. I recognise that it is a big issue, and I am not saying that we should consider it lightly, but it is an emerging issue of some concern. I invite the Department to think about that. Of course there will be issues of resourcing and how to handle the responsibility, but I think that it must be looked at.

6353. Mr Stewart: The issue is not so much one of resourcing. I do not want to give you the impression that I am dismissing your suggestion; it is a very interesting one. There is no formal view on the issue, because the suggestion has not been put formally to the Department. The core issue that needs to be worked through very carefully stems from the word “well-being". The general duty on the issue of health and well-being sits with the Department of Health, Social Services and Public Safety; the general duty on our Department is couched around development. There are clear relationships between the two as well as some potential overlap. A need exists for joined-up working between the two Departments and the public authorities that are involved. I do not know how that could best be reflected in legislation; however, it is certainly worth considering.

6354. Mr B McCrea: We would appreciate your considering it and coming back to us. The issue ought to be brought in, but I want to know the ramifications.

6355. The Chairperson: Clause 44(1) places a duty on the ESA to:

“ensure that its functions are exercised with a view to safeguarding and promoting the welfare of children and young persons."

6356. Therefore, there is already something there.

6357. Basil referred to clause 2(2)(a), which sets out the general duty of the ESA. It states that the ESA’s duty will be:

“to contribute towards the spiritual, moral, cultural, social, intellectual and physical development".

6358. If we take Basil’s point, do we have any idea how the ESA will contribute to children’s spiritual development? How will the ESA contribute to each of those issues? What does it mean by the word “contribute"? We should, perhaps, have tried to get some explanation on the wording. It is not just about looking at their mental well-being.

6359. Mr D Bradley: Perhaps the word “promote" could have been used.

6360. The Chairperson: What is the definition of the word “contribute"? How will the ESA see that role being played out, and in what way will it carry that function through?

6361. Mr Stewart: Those sorts of clauses are rarely precisely defined, and when we ask for them, legislative counsel tends to be somewhat nervous of including them for that very reason. I would see the ESA addressing the matter in two ways. The most obvious way would be through the curriculum in respect of how it addresses religious education and through curriculum support and professional development around the teaching of religious education. However, more generally, the ESA would address the matter through a holistic approach to education, which it would seek to promote in schools. That would recognise that the purpose of education is to contribute to all the dimensions of development that are listed in the legislation and not to focus more narrowly, as education may have done in the past, on intellectual development and things closer to it. I cannot give you a chapter-and-verse answer on exactly what the ESA would do in pursuit of that duty, but it is something that we would expect to be visibly woven into the thread of all that it does and the approach that it takes.

6362. Mr D Bradley: I would argue that, de facto, the Department already takes action to improve the general well-being and mental health of children. For example, after recent clusters of suicides, the Department used its resources to provide counsellors in schools. Part of that function was to ensure improved mental health among pupils. If I am not mistaken, there is also an area of the curriculum known as personal, social and health education. Health is specifically mentioned in that title. Therefore, de facto, the Department recognises that it has a duty with regard to health education and to maintaining the good mental health of pupils. If it currently exercises that responsibility, why should it not be reflected in legislation, if, as you say, the Department seeks to promote the holistic development of the pupil?

6363. Mr Stewart: I agree with you entirely. The issue is quite a narrow one. If we are to have two Departments with a statutory duty that is focused on well-being, careful thought would need to be given to the boundaries or the relationship between those respective duties. The thing that we need to avoid in law is having two very similar duties, the extent of which is not clear. That could be a recipe for disagreement between Departments or service recipients as to who is responsible for what.

6364. Mr D Bradley: The word “cultural" has also been included. On the basis of what you have just said, you could argue that it should not be included because there is a Department of Culture, Arts and Leisure.

6365. Mr Stewart: There is, but I do not believe that the Department of Culture, Arts and Leisure has a statutory duty to promote cultural development in schools; therefore, there is not the same overlap. However, there would be a clear overlap between the general duty of the Department of Health, Social Services and Public Safety and that of the Department of Education were we to add a duty to promote mental well-being. I am not saying —

6366. Mr D Bradley: Does the Department have a duty to promote health in schools?

6367. Mr Stewart: It has a duty to promote health and well-being for people of all ages.

6368. I am not saying that the promotion of good mental health in schools should not be done. I am saying that if the Assembly and the Executive are minded to do so, it would require careful thought. The thing to be avoided would be a lack of clarity, or perhaps a gap between, or overlap, in two statutory duties.

6369. Mr D Bradley: It is clearly something that the Minister is very much aware of and concerned about. Perhaps if she was made aware of the concerns of Committee members, she would be minded to examine a way of incorporating the promotion of mental health in the Department’s general duty as outlined in clause 2(2)(a).

6370. Mr Stewart: I will not anticipate the Minister’s response, but I will certainly pass on the concerns to her. However, at this stage, I suspect that she would place a particular focus on ensuring that all the public authorities and statutory agencies are playing their full part on the ground and are co-operating with colleagues in the Health Department and in other areas to ensure that there are practical programmes and interventions to tackle very real and serious issues, such as suicide. I am not sure that the Minister would see adding something into the Department’s general duty as having quite the same priority. I think that she would want to place more emphasis on practical interventions on the ground, but, as I said, perhaps I should not anticipate her reply.

6371. Mr Lunn: I am interested that the issue has arisen at this point. Which body raised that issue last week? None of the stakeholders raised it?

6372. Mr D Bradley: It was the Northern Ireland Association for Mental Health (NIAMH).

6373. The Chairperson: The papers that came from that session will be formulated and sent to the Department, and members will also eventually receive those papers.

6374. Mr Lunn: Fair enough; that is a body that is specifically interested in mental health, and which, presumably, places an emphasis on suicide prevention. However, proposed new article 3(1)(b) of the 1989 Order outlines six matters that the Department will have a duty to promote. It seems to me that they are all already in the curriculum in some way, and I think that you have already said that, Chris. The mental health aspect — and you could probably throw in the broader medical aspect — have surely nothing to do with the Department of Education. It is an interesting discussion, but I wonder where the Committee is going with it.

6375. Mr D Bradley: Health promotion is also included in the curriculum, but it is not reflected in the duties outlined in the Bill.

6376. Mr Lunn: I await the Minister’s response with interest, but I can almost anticipate what it will be.

6377. 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.

6378. 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.

6379. Proposed new article 3(1)(e), which is contained in clause 23, mentions:

“an effective and efficient system of youth services".

6380. 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.

6381. 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.

6382. The Chairperson: Clause 2(2)(b) places a duty on the ESA to:

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

6383. The Committee agreed last week that it would flesh out clause 2(2)(b) to make it similar to clause 2(2)(a).

6384. 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.

6385. 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.

6386. 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.

6387. 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.

6388. 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.

6389. 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.

6390. 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.

6391. 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?

6392. Mr Stewart: We need to give that some further thought. I will need to consult the Minister. I am not certain whether, at this stage, the Minister would want to suggest such an amendment to the first Bill. It may be that she will take the view that the answer lies in the area planning clauses. I would not seek to convince the Committee that we will solve all the concerns and issues that exist in the Youth Service through any legislative provision. The availability of resource will always be at the centre of all that.

6393. However, the issue that many colleagues in the Youth Service raised is that they feel that they are sometimes treated as an afterthought and that the resources that they receive are what is left over when the schools are sorted out. We will seek to address that issue by bringing the planning of youth services upfront and into the same process as the planning of schools. Of course, difficult decisions will have to be made around priorities against the background of limited resources, but at least the difficult decisions on youth services will be taken around the same table and at the same time as the difficult decisions on schools. In the past, the perception has been that that has not been the case.

6394. Mr D Bradley: To return to the issue of mental health, if the word “mental" were to be inserted after “intellectual" in proposed new article 3(1)(b) in clause 23, it would then read “social, intellectual, mental and physical development of such children". To my mind, that would cover the concerns that we have raised, without offending the Department of Health, Social Services and Public Safety.

6395. Mr Stewart: I do not mind offending the Department of Health, Social Services and Public Safety: we offend it quite frequently. Legislative counsel will ask me what the difference is between intellectual development and mental development. Mental well-being is significantly different from mental development. We have no difficulty in acknowledging that mental or intellectual development is the core responsibility of our Department. Mental well-being or mental health — or the absence of mental illness — is a different concept. I am not saying that it is not one that should be in our legislation, but I think that it is different.

6396. Mr D Bradley: We could debate this for quite some time. I will leave the matter in your capable hands.

6397. The Chairperson: Representations were made on that issue to members at the event that we attended last Wednesday, and those papers will be forwarded to the Department.

6398. Mr Stewart: We look forward to seeing them.

6399. The Chairperson: We would appreciate it if you could take on board the issue that has been raised. It is an important issue and one which the Committee should consider further.

6400. Mr D Bradley: I want to go back to the job description for the director of education quality and standards. There is only scant reference to youth services and early years provision in comparison with the references to other aspects of the education service. That concerns me, and it indicates that, under the new regime, the position of the Youth Service and the standing of youth work will not move on from the Cinderella status described by Basil.

6401. Mr Stewart: It is difficult for me to comment. You have me at a disadvantage because I have not seen the job descriptions for the various posts.

6402. Mr D Bradley: It is interesting to compare them with the legislation.

6403. Mr Stewart: I have not applied for any of the posts, so I have not seen the job descriptions. I wonder whether youth services might feature more prominently in the job description for the director of children’s services than it does in the job description you have in front of you. I do not know.

6404. Mr D Bradley: I think that I have it here as well.

6405. Mr Stewart: I feared that you might.

6406. 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.

6407. 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.

6408. Mr Stewart: Thank you, Chairperson. We wish the same to you and the members.

9 September 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr John McCallister
Mr Basil McCrea
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr Chris Stewart
Ms Eve Stewart

Department of Education

6409. The Chairperson (Mr Storey): I am sure that, over the summer, members did not forget the Committee’s scrutiny of the Education Bill. I remind members that this session is being recorded by Hansard, and I welcome our colleagues from Hansard. Members have a first draft report for their consideration. I am glad that Chris Stewart and Eve Stewart are present. Chris, you are welcome back to the Committee; I have no doubt that we shall see more of you over the next few weeks.

6410. I shall go through the draft report to set the Bill in context at Committee Stage. The draft report sets out the background to the Committee’s consideration of the Bill and the approach that will be taken.

6411. In the section that deals with consideration it attempts to record by clause, groups of clauses or schedules the concerns raised by stakeholders; any advice or assistance of which the Committee has had the benefit; the issues that emerged during the Committee’s deliberations on the Bill; the Committee’s engagement on those issues with the Minister, departmental officials and stakeholders; and the progress made on resolving issues.

6412. Members will appreciate that the Committee must progress its scrutiny so that it can finalise the report, including its conclusions on each clause and schedule so that it either stands part of the Bill or is to be subject to a Committee amendment. We hope that more progress will be made in the next couple of meetings as the Committee finalises the report.

6413. We will look at the draft report as we revisit some of the outstanding issues. After that, we will resume our consideration of the Bill at clause 24; there are only 55 clauses, so we are getting there.

6414. Mr Chris Stewart (Department of Education): And the schedules.

6415. The Chairperson: And the schedules.

6416. I commend the Committee Clerk and his staff for the huge amount of work that they have done over the past weeks to bring us to this stage.

6417. I propose that the Committee adopt the draft report in its present form. I stress that the draft report is a working document — I am not asking anyone to buy into something with which they cannot agree. The draft report is a working document; additional content and amendments that emerge from each Committee meeting and are added to the draft report will be tracked so that members can easily identify changes.

6418. There are appendices to the report. Appendix 1 contains extracts from the minutes of the Committee’s consideration of the Bill, which the Committee has formally approved.

6419. Appendix 2 contains all the Hansard reports of oral evidence. Those reports have not been copied, because of the volume of paper that that would involve; each Committee member would have 14 files if all the reports had been copied. I remind Committee members that the Hansard reports of the evidence sessions on the Bill have been approved by the Committee, and that all 27 Hansard reports up to and including that of 1 July 2009 are available. They are sitting on the desk in my office if anyone wants to look at them, but I am sure that Committee members have received copies.

6420. Appendix 3 contains the written evidence submitted by stakeholders; Committee members will be familiar with that evidence from the spreadsheet.

6421. Appendix 4 contains correspondence and written submissions, including the Committee’s correspondence with the Department, the Minister and the Secretary of State. It also contains letters and additional submissions from other bodies.

6422. Appendix 5 contains a list of witnesses who gave evidence to the Committee during the Bill’s Committee Stage. I ask Committee members to review the appendices over the next week with a view to approving them for inclusion in the draft report at next week’s meeting. I am sure that Committee members will look forward to doing that over the weekend; I will ring you all on Saturday evening to make sure that that is what you are doing.

6423. Mr O’Dowd: An Indian summer has been forecast for the weekend. [Laughter.]

6424. Mrs M Bradley: That means that we can sit outside.

6425. The Chairperson: You can sit outside and get a tan.

6426. During the Committee’s September meetings, members will be asked to approve the additional items necessary to keep the draft report’s appendices up to date. I appreciate the indulgence of Committee members in that; there is a huge amount of work to be done, and we need to be as methodical as the Committee Clerk and his staff in collating all the papers.

6427. Before the Committee continues its clause-by-clause scrutiny at clause 24, in light of information received from the Minister and the Department and advice received over the summer recess, I propose that we review several issues that were discussed at previous meetings, including the Minister’s letter to the Committee of 5 August 2009.

6428. The Department’s responses of 31 July and 4 September are also included under item 2 in the white folder. Items 8 and 9 of matters arising are at tab 4 of the black folder.

6429. Earlier, we referred to legal advice that we have received from the Examiner of Statutory Rules; we have agreed that we will pass that on to Chris. Perhaps we should deal with it now. Will we come to it later?

6430. The Committee Clerk: That issue will arise naturally, Chairman.

6431. The Chairperson: In that case, we shall work our way through the issues that are being revisited. The first is the membership of the education and skills authority (ESA). Paragraph 2(1) of schedule 1 proposes that the membership of the ESA will consist of a chairperson and between seven and 11 other members. Paragraphs 27 to 34 of the draft report set out the concerns of stakeholders and some members on that issue.

6432. At the start of the summer recess, the Minister was still reflecting on the number of the ESA’s members. On 5 August, the Minister wrote to the Committee, and her letter was circulated to members by the Clerk on 6 August. The Minister said that she will:

“continue to examine the issue of greater representation on the Board measured against factors such as finance and efficient delivery of services and will advise the Committee of my views as soon as possible."

6433. The advertised remuneration for non-councillor members of the ESA is £8,800 per annum, plus travel and subsistence allowance. Chris, do you have an update from the Minister and the Department on that issue?

6434. Mr C Stewart: No; there is no change in that position. The Minister continues to consider the matter of the number of members of the ESA and is aware of the Committee’s deliberation on that point. To pick up on a point that Basil made earlier, it remains the Minister’s policy that, irrespective of the number of members of the ESA, the majority should be local councillors.

6435. The Chairperson: OK. We will have to wait for further detail. Like ourselves, the Minister and the Department are constrained by time. As the Minister is still thinking about the matter, I remind the Committee that in previous discussions several members said that they wanted the ESA’s proposed membership of one chairperson and between seven and 11 members to be increased to about 20. Bearing in mind that the Committee has only two more scheduled meetings in which to finalise its report and that the result of the Minister’s long reflection may well be to approve membership of between seven and 11, do members want to discuss that problem and how we might fix a number for the ESA’s membership? It looks as though we could run into difficulty if, on reflection, the Minister tells us that she is not prepared to increase the ESA’s membership.

6436. Mr Lunn: Given that the advertisement has been published and the application stage of the process is now complete — the closing date for applications was 7 September 2009 — and that, presumably, the selection procedure is now under way, it seems highly unlikely that the Minister will change her mind about the number of board members. We can regard that as a given. The question now is whether there should be seven or 11 members. Does that depend on the quality and number of applications that have been received?

6437. Mr C Stewart: It is difficult for me to speculate; I am not involved in the selection process at all. However, I can reassure you with respect to the first part of your question. The fact that the application process has been completed will not, in itself, determine the number of members, which will be decided by the Minister, having considered the Committee’s views. When the advertisements were placed and the process was under way, we were aware that a final decision on the number had not been made, and that was reflected in the advertisement and the material that was sent to candidates. The fact that we have gone through the first part of the selection process will not determine the number of members who will be appointed.

6438. Mr Lunn: However, for now, the selection panel will have to select a certain number, although I think that the Bill allows for additional members to be appointed in future as necessary.

6439. Mr C Stewart: The Bill allows for the number of members to vary, either up or down, by Order, although, as you rightly surmised, the likely direction will be up. Of course, the first part of the process involves determining which applicants are eligible to be appointed and who meets the criteria to determine the pool of candidates who are, to use the popular phrase, above the line. It will only be at the subsequent stage, when the Minister makes appointments, that it will be necessary to have a number for the appointments to be made. At this stage, it is possible to continue with the process, even in advance of a decision on the numbers.

6440. The Chairperson: I see that academic selection is not being used either. The advertisement states:

“Whilst there are no academic qualifications required".

Therefore I will be looking for a comprehensive board.

6441. Mr C Stewart: I am sure that the Minister is looking for a broad range of competencies that will be assessed in various ways.

6442. Mr O’Dowd: We must be conscious of the cost of boards. If the number rises to 20, it will cost roughly an additional £64,000 a year just to pay board members to meet twice a month. Although I am open to persuasion about the number of members, we must be conscious of the cost.

6443. The Chairperson: We must also be conscious of the fact that we are moving from five boards with 40-plus members to one board with 11 members, and we must think seriously about whether that is a fair and reasonable transition. Consequently, the cost of increasing the number of board members to 20 is miniscule compared to the Department’s overall budget of £2·something billion. Although I do not underestimate the importance of cost savings, the nature and composition of the board is paramount, because it will deal with the most important issue. I am not saying that other boards do not deal with important matters; however, given the complex nature of education, we must ensure that we get it right.

6444. Mr Lunn: I take a different view from John. Given the expertise and experience that is required for such key positions in what will be a huge organisation, I was surprised by the low salary being offered. The position probably merits a bit more than £8,800 a year. For that reason, I would be a bit worried about the quality of applicants.

6445. Mr O’Dowd: You have spent too long running down councillors, saying that they were not worth paying. [Laughter.]

6446. Mr B McCrea: How was the figure of £8,800 arrived at?

6447. Mr C Stewart: The short answer is that it was determined by considering the market rate to attract candidates of the necessary calibre, while bearing in mind, as John emphasised, the need to minimise the amount of money spent.

6448. Mr B McCrea: Given what you said about the Bill being the most fundamental reform of administration and the contribution that members of the board will be expected to make, it seems to me that the job is very big. Therefore, to value it at £8,800 is interesting. Perhaps we have not got the balance right to get the type of people that we want.

6449. It is not for me to influence that, but perhaps it could be looked at. Perhaps you could provide us with more information. You said that that is simply the market rate, but how did you arrive at that?

6450. Mr C Stewart: I cannot comment on that in detail because the legislation team is not involved in it in any way. If the Committee wishes to have more information, I shall ask colleagues who are involved to provide it.

6451. The Chairperson: What is the position with regard to existing members of boards? It may differ from board to board. If, as is envisaged by the Minister, the 11 members will also chair the 11 local committees, they will not only be engaged in board meetings but in a raft of other activities. That will be pretty demanding. Is that mentioned in the job description in the advertisement? Perhaps it was not required to be mentioned. Our recollection is that part of board members’ functions will be to chair the local groups.

6452. Mr C Stewart: That is certainly envisaged.

6453. Mr D Bradley: In theory, the board could have seven members; that is the minimum number that is required. Even with a maximum of 11, the board would still be quite small. Given the advice that a body’s size would impose limits and restrictions on its ability to be representative, it makes sense for the board to have more than 11 members. I am in favour of the board’s having about 20 members.

6454. The Chairperson: We shall return to that issue. Earlier today, we discussed the issue of how membership of the ESA will reflect the community in Northern Ireland. The Minister’s position is set out in her letter of 17 June 2009, which stated:

“A representative membership is appropriate for Commissions that are operationally independent of Ministers and the Assembly. However, the ESA will not be operationally independent. Its role will be to implement the policies of the Minister of the day and legislation as passed by the Assembly with scrutiny and oversight by the Education Committee and the Assembly generally. As such, the ESA — like similar authorities for libraries, health and housing — ought to have a membership that reflects its core role of managing and delivering services."

6455. Some members expressed the view that the provision of education, unlike other areas that are affected by the RPA such as health and libraries, is largely provided in two separate school systems, reflecting the two largest political/religious communities in our society. Appointment purely on merit may — but will not necessarily — produce a broadly representative ESA regarding community background and education sector or, indeed, the geographic area of Northern Ireland and the gender balance of members. If one community, education sector, gender or sub-region of Northern Ireland is underrepresented, there is a risk that the underrepresented group will not have the confidence in the ESA. Members might have seen a recent article in ‘The Irish News’ that highlighted that point.

6456. The Minister’s letter of 17 June also stated:

“I recognise that it will be important for the ESA membership to have the trust and confidence of education interests and the broader community. With this in mind, the appointment arrangements will reflect the need to ensure balance, insofar as this is compatible with the Commissioner’s Code of Practice and the merit principle."

6457. Members will recall that the Committee wrote to the Secretary of State regarding the arrangements by which he fulfils his statutory obligation in appointing a member from the Equality Commission and the Human Rights Commission and that, as far as is practicable, he secures that the commissioners as a group are representative of the community in Northern Ireland.

6458. Members have been provided with a response to that issue from the Secretary of State, a summary of which is given in paragraph 31 of the draft report, and which includes the following extract:

“The second way in which the Secretary of State is able to take steps to meet the statutory requirements is at the final selection stage. The list of appointable candidates is provided to him, and he selects the candidates to appoint. In doing so, he can have regard to the community background of the candidates and other relevant information, including, for example, the practical expertise they could bring to the commission, and he can make selections that help to ensure that the commissioners as a group are representative of the community in Northern Ireland."

6459. We may wish to consider whether amending the Bill to include a duty on the Minister to, “so far as practicable", ensure that the ESA membership is representative of the community in Northern Ireland would give the Minister greater freedom to ensure balance — a balance that, her letter of 17 June suggests, is desirable. Members will recall that the Minister’s ability to ensure balance was subject to that balance being compatible with the code of practice of the Commissioner for Public Appointments and with the merit principle. Does the Committee have a view on whether the inclusion of a statutory duty would give the Minister greater freedom to ensure balance and thereby ensure public confidence in the membership of the ESA?

6460. Mr B McCrea: We have discussed the issue, and I would like to hear what the departmental officials have to say.

6461. Mr C Stewart: I have not seen the Secretary of State’s reply, but from your brief summary it does not strike me that the process outlined by the NIO is significantly different from the process that was followed under the guidelines of the Commissioner for Public Appointments. It strikes me as a sound approach, and one that the Minister will want to adopt.

6462. The Chairperson: We will ensure that Chris receives a copy of the correspondence from the Secretary of State.

6463. Mr B McCrea: Will you get back to us and tell us whether that is how the Department will deal with the matter?

6464. Mr C Stewart: Certainly. I have no doubt that the Minister will wish to respond to that. In her public comments and in her correspondence with the Committee the Minister has made clear her intention to have a process similar to that sought by the Committee that will produce an outcome similar to that which the Committee has said that it wishes to see. I cannot comment on whether an amendment along the lines described would assist or hinder the Minister in taking forward such a process. We would have to get legal advice on that.

6465. Mr O’Dowd: The sensible approach is to forward the Secretary of State’s letter to the Department and await a response about its approach. I must say that the Secretary of State and the NIO are not great sources of guidance on appointments processes — or perhaps they are now, after losing two judicial reviews on the matter and having their practices severely criticised by the Commissioner for Public Appointments. Perhaps they have refined their systems and are now using the Commissioner’s public-appointments system. It is worth knowing that what brought them back into line was the judicial review process, under which the legislation before us is open to challenge. If any person or group is concerned that the appointments process has not been open, fair and transparent, it is open to judicial review.

6466. The Chairperson: Surely we should ensure that we get it right in order to avoid judicial reviews and the difficulties that were encountered in the processes to which you referred. Without wishing to demean any other aspect of the delivery of government, education is not clean-cut; it is not the same as health. People make choices about where they are educated; therefore there is a distinct difference in the realm of education, although I will not go back over the history of it. That is why we need to get it right.

6467. My understanding is that the Minister is not in favour of any proposed amendment to schedule 1 that would state that members of the board will be representative of the community in Northern Ireland. The Committee would appreciate clarification on that issue.

6468. Mr C Stewart: It would be best if that were put to the Minister formally and if she was asked to reply formally to the Committee. To date, she has not indicated to me that she would favour such an amendment.

6469. The question relates to the earlier question on numbers and on the view that the Minister and the Committee might take on the nature and purpose of the membership of the ESA. We have sought to illustrate in previous evidence that if the policy intention is that the ESA board should be a management-type or technical board that will scrutinise and govern the affairs of the organisation, then the numbers currently outlined in the Bill are in line with current best practice. On the other hand, if the policy intention is that the board must be representative of communities, then practice tends to be that such boards have a larger membership. As Dominic pointed out, it is easier to achieve the sort of balance or representation that is being sought when the numbers are larger.

6470. The Minister’s current position is that while she wants to achieve balance and ensure that there is not a lack of balance in the membership, the emphasis to date has been on the managerial role of the membership, which is reflected in the numbers. The Minister is still considering that. If the Committee’s view crystallises around a particular number, I am sure that the Minister would want to consider and formally respond to that view.

6471. Mr B McCrea: I agree, Chris; the seminal discussion is about the purpose of the ESA board. That is why we need to consider remuneration, the skills set and the numbers.

6472. Let us take the scenario in which the board is composed of a smaller number of people and the focus is on management. It is still important to find a way of addressing concerns about community balance and other issues, because as the Minister herself has said, those issues are important. If the Minister suggested a smaller number, proposals would have to be made to outline how the Department would address the outstanding issues of community confidence and inclusion. Conversely, if the board were to be made up of a larger number because it is to try to deal with inclusivity and so on, then that raises certain issues about performance and management. It would be better if we could reach a consensus about the way in which those processes will work, because it would be easier to frame legislation that reflects a consensus.

6473. Our underlying concern is that what is set up with good intent may end up working in a different way once the gates are opened. We need to find some way of safeguarding those legitimate concerns.

6474. Mr C Stewart: I understand that position. That is reflected in the fact that the Minister has indicated that she has not yet made a final decision and has not closed the matter down as far as the numbers and related issues are concerned. If the Committee has a consensus position on a number or range of numbers and on the need or otherwise for the sort of amendment on representativeness that has been discussed, I am sure that the Minister would want to respond formally very quickly.

6475. The Chairperson: There are two points. The Committee has received legal advice on aspects of the issue. Does the Committee have the power to forward that advice?

6476. The Committee Clerk: Not in full and specific terms, but it may be useful to communicate the bottom line of some of that legal advice to officials to help the Minister when she looks at the issue of representativeness, because there is a way to define what is representative of the community in educational terms. That was part of the advice that the Committee received.

6477. Mr C Stewart: That would be helpful. I do not expect the Committee to share the legal advice with us. I know that lawyers everywhere tend to be very resistant to that sort of notion. However, if the Committee could give us a broad steer on the direction in which it thinks we ought to travel — and which, on foot of legal advice, the Committee is convinced is sound — then the Minister would want to consider that.

6478. The Chairperson: There are two issues. One, of course, is the possible amendment. The amendment to paragraph 2 of schedule 1 to the Bill would be that members of the ESA, as a group, should be representative of the community in Northern Ireland. Would members be happy for that to be forwarded to the Minister for consideration? That does not tie any party down to agreeing to the amendment; rather it states that the Committee requests that that be considered and asks for a response, given the very tight timescale to which we are now working. Is that agreed?

6479. Mr O’Dowd: So we are not endorsing the amendment?

6480. The Chairperson: We are not endorsing the amendment. I have a letter that staff will give out now so that members have it. I want to be clear: this is not about members endorsing the amendment, so it is not tying any party down to the particular wording of the amendment. However, it is the Committee saying that there is an amendment that we would like the Minister and the Department to consider. We can then come back to that issue.

6481. Mr Lunn: Chris asked us to put a figure on the board membership, but we cannot do that. It is the other way around: the figure would be the end result of trying to satisfy all the criteria. There are 14 in the advertisement and there are four more of which I can think. There is specific mention in the advertisement of people aged under 40 and of women.

6482. I would have far more sympathy with the Minister if she said to us that the Department wants to put together a board that is — whether or not we propose the amendment — representative of the people and the various interests in education in Northern Ireland. However, we cannot really talk about a board of between seven and 11 members any more that we can suggest a figure of 20, or 18, which I proposed a few months ago. It is top-of-the-head stuff — we really do not know what the optimum number would be. I agree that the optimum number should be as small as possible. However, there are many interest groups, and four different education sectors for a start. If the board were to have seven members, there would leave only three places for those sectors.

6483. The Chairperson: In fairness to the Minister on this issue, she has indicated that she would like a steer from the Committee. Correct me if I am wrong, but this Committee’s view is that the board membership should be more than what is currently outlined, which is seven to 11 members. The issue is whether it should be 18, 20, 25 or 30.

6484. The simple way of doing this is for us to agree that the figure should certainly be more than what is currently proposed — seven to 11 — so that we do not get into the situation to which the Deputy Chairperson referred whereby it could be seven and not 11. It has to be a number that is greater than what is currently proposed, but consideration must be taken of the fact that some members said that there should be 18 members and others said that there should be 20.

6485. Mr C Stewart: That is what I was suggesting, and I would not necessarily ask the Committee to settle on a particular number. Indeed, legislation on such matters usually tends to be framed to include a range of numbers, recognising the fact that it is not an exact science. I must be very careful not to pre-empt any decisions or views that that Minister might come to. However, if there is a consensus among the Committee that the range that is currently indicated in the legislation is not right — because the Committee feels that it would not be possible for the ESA membership to do its job or to meet other criteria such as representativeness and inclusivity — and if it were minded to suggest a different range, the Minister would want to take that on board.

6486. It would also be helpful if the Committee would express a view as to whether any changes to the numbers need to be reflected formally in an amendment to the legislation, or whether such changes are capable of being dealt with by the provision already in the legislation to vary the number of members.

6487. The Chairperson: Basil, I want to bring you in before we move to the issue that might help us to bring some sense to this matter.

6488. Mr B McCrea: I hesitate to speak too long, given that there is a solution coming up. [Laughter.]

6489. The difficulty appears to be that when one asks for advice, that advice should come from the Minister, through her proposals. The Committee has outlined certain concerns, one being about inclusivity, but the number of members depends on the functions that they will undertake; form will follow function.

6490. What is it that the Department intends those members to do? I raised an eyebrow earlier when you said that you expected that small number of people to be very influential in a very important body and to chair a load of subcommittees all for a relatively small amount of money. You must decide. Someone must present proposals and decide whether the board is expected to fulfil a management role. If that is the case, we must have some other way of addressing the inclusivity issues that people have raised. I am providing this as an example only — it is obviously not what would be acceptable — but the Department could decide that it wants a management board with an advisory board to sit alongside it to deal with the larger issues such as inclusivity. That advisory body would include people who are there to represent the interests of the community rather than undertake a managerial role.

6491. The Committee could come up with 101 different ideas, but to what purpose? The Department must say to us that it is taking on board the Committee’s desire to do this and the Department’s desire to do that and present its proposals. If those proposals address the concerns then the Committee will be able to say that they are a good idea.

6492. At the risk of ruining Trevor’s morning by agreeing with him again, the Committee could pick a number out of the air, whether it be 20, 18, seven or 11, but it really depends on what the Department wants those people to do.

6493. I will not go on, but I will put the ball back firmly in the Department’s court. Unless the Chairperson is able magically to create a solution, the solution must come from the Department. The Department must take on board the genuine concerns that have been raised by the Committee, and if the Department does that, the Committee will support it.

6494. Mr C Stewart: I take your point entirely. I would not wish to give the impression that the Department is waiting for the Committee to jump first on any particular issue. The Minster will give her view in due course, having considered the views of the Committee and of the stakeholders. I merely asked the question to find out whether there is an emerging consensus in the Committee on a particular approach or a particular number. If that were the case, the Department would put that suggestion to the Minister.

6495. Mr O’Dowd: As I said earlier, I am open to persuasion regarding the numbers. However, I do not want to re-establish an education board.

6496. The ESA will be a management body, and its role will be to manage an education system through the policies of the Department of Education and legislation passed by the Assembly. People have referred to the scrutiny role and representative role of the ESA. Perhaps we have been out of power for so long that we have forgotten what the role of a politician is. We are the representatives; people elect us to represent their views. We are representative of the broader community, as a collective body.

6497. The Education Committee’s role is to scrutinise the Department of Education and the ESA, if and when it comes into operation. All those scrutiny layers already exist, so I am concerned that we could end up establishing yet another quango. As far as I am aware, most, if not all, of the parties are seeking to reduce rather than increase the number of quangos. I agree that we must get the balance right, and there are genuine concerns about a number of issues, but let us not get carried away. The body will have a management role; let us not undermine the Committee’s scrutiny role.

6498. Mrs O’Neill: I would like to clarify one point. The legislation provides for the number of board members to be changed as required. If the Committee decides to specify a number in the legislation, that would make the provision rigid. For example, say the board has 15 members but down the line it is decided that it is not able to cope with the demands being placed on it, another piece of legislation would then be needed to change the number of members. To specify a number would make the provision too rigid.

6499. Mr C Stewart: Not necessarily; the way in which the legislation is drafted deliberately includes a degree of flexibility — the means to vary the number by an Order. That is in recognition of the fact that as an organisation evolves and develops the interim conclusions on the number of members required can change. The issue is more one of pragmatic consideration. Given that a mechanism already exists to change the numbers if the need to do so arises, is an amendment to the legislation actually needed? That is a matter for the Committee to decide on.

6500. The Chairperson: That is the thing that worries me about Departments; they tell you what they cannot do, but there is always a clause in a Bill that tells you what they can do. Of course, paragraph 2(3) of schedule 1 states that:

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

So, if we set the number at 15, the Department could increase it to 20 if it discovered that that number was not sufficient. Therefore, being prescriptive does not hinder the Department’s powers. Even keeping the figure between seven and 11 will not mean that the Department does not have the power to change the number — the provision in schedule 1 gives it the power to do so.

6501. Mr Lunn: I would be satisfied with the provision that the number could be increased in years to come as needs require. That is not the issue. My problem is with the initial composition and how we square the circle as regards the need for representation, however we describe it, and the demands of the job. Purely as a way of trying to move things forward, I suggest that we propose that the figures seven and 11 be changed to 12 and 20 and that the provision to increase or diminish the number of positions remain in the Bill.

6502. The Chairperson: We will park that issue for one moment and move to a draft letter that has been prepared by Committee staff. I sound like I am appearing in a TV cookery class when I say that it is something that we have prepared earlier. Let me assure you that this is not an attempt to try to steamroll the Committee into a particular position; rather it is an attempt to try to respond to the Minister, and the draft gives us something on work on at today’s meeting.

6503. Members can appreciate where we are with this at the moment. Over summer recess, some correspondence was sent to the Committee, copies of which were sent to members. Just to refresh members’ memories, I asked the Clerk to prepare during recess a draft response to the Minister’s letter of 5 August so that the Committee could consider it and try to reach some agreement on the issue. The draft reflects the legal advice that the Committee received on the matter earlier today.

6504. No doubt, there will be other matters about which the Committee will wish to write to the Minister, so I suggest that we add to the draft letter as we work our way through the Bill. There may be other points that members feel it is important to include in the letter, so I ask you to take a few minutes to read it and comment on whether it brings together in a coherent way the matters that we have been discussing.

6505. Trevor, does the draft weaken or lessen your proposal?

6506. Mr Lunn: What will the second page say?

6507. The Chairperson: Do you want to include the suggestion that the number of ESA board members be increased to no fewer than 12 or more than 20?

6508. Mr Lunn: That is what I proposed, so yes. It does not bind anybody to anything.

6509. The Chairperson: If you had 12 —

6510. Mr Lunn: Make it 11 to 19, plus a chairperson.

6511. The Chairperson: I take Chris Stewart’s point about us tying ourselves down to numbers —

6512. Mr Lunn: We are being pressed to provide some sort of steer on the numbers.

6513. Mr C Stewart: I would hate the Committee to think that I was pressing it about anything.

6514. The Chairperson: Is it not the case that we are looking at a minimum of 20 members, as opposed to a figure of between 12 and 20?

6515. Mr O’Dowd: We are not looking at anything.

6516. The Chairperson: I am in the Committee’s hands, so I would appreciate it if someone would say. Trevor is suggesting 12 to 20 board members whereas, other members have said 20 or 18.

6517. Mr Lunn: All the suggestions have been in that range, and Dominic’s offer of 20 is the highest yet. I am taking that range as a basis on which to move forward. Michelle has just whispered that we should wait another week until we see the Minister’s response, but the Committee has been waiting for responses for more than two years and they have been very slow in coming forward, so I am just trying to move the ball forward a bit.

6518. The Chairperson: Trevor has made a proposal, so, as the Chairperson, I am duty bound to —

6519. Mr B McCrea: Let us split the difference between Trevor’s 18 and Dominic’s 20 and say 19.

6520. Mr Lunn: My figure of 18 was just a suggestion some months ago.

6521. Mr B McCrea: Pick a number.

6522. The Chairperson: Is that a minimum figure?

6523. Mr Lunn: I want to leave the Minister with a lot of flexibility. I am suggesting that, in effect, the current maximum should be the minimum, thus dramatically raising the maximum. That range provides a greater chance than the present one of satisfying the interests of all those involved.

6524. Mr O’Dowd: We will be throwing darts at a dart board in a minute. I thought that the purpose of the letter was to emphasise to the Minister a number of amendments that the Committee may wish to consider and to ask her to consider them. We are now getting into definitive proposals, but I do not think that that will help us to move the matter on.

6525. Mr Lunn: I am taking the letter as an invitation to put a figure on the number of ESA members. The draft letter has crossed out the figures 7 and 11, and I took that as an indication that we might provide a range of numbers. Is that not what it was meant to do?

6526. The Chairperson: Yes, but we are not reaching agreement about what the range should be, which is probably why it was left that way.

6527. Mr Lunn: We are not disagreeing.

6528. The Chairperson: I think that there is consensus that the figures should be greater than those that are currently being proposed.

6529. Mr O’Dowd: No; my exact words were that I was “open to persuasion." I believe that we could all sign up to the letter as it is currently worded. It asks the Minister to consider the number of members and emphasises that the Committee requires an answer and an end to her deliberations on it.

6530. Mr Lunn: OK. I will go with that.

6531. The Chairperson: Can we leave it at that?

6532. Mr O’Dowd: There is just one small point; the Minister’s name is spelt incorrectly.

6533. The Chairperson: I certainly did not type it or there would be lots more spelling mistakes; it would not just be the Minster’s name.

6534. The Committee Clerk: So are members proposing that we insert the words “a greater number of" as opposed to providing any new range?

6535. The Chairperson: We have not included the words “a greater number" in the letter.

6536. Mrs M Bradley: No, that has not been included in the draft letter.

6537. The Chairperson: The inference is that it should be a greater number than the seven or 11.

6538. Mr Lunn: Could we say something along the lines of “a greater number commensurate with the need to satisfy the various interest groups and sectors"?

6539. Mr O’Dowd: It is not a representative body.

6540. The Chairperson: Not yet.

6541. I do not wish to begin to consider a whole raft of changes to the letter, because it could take a long time — although that is the reason why we are here. I ask members to look at page 2 of the letter. We could change the wording to read; “On the latter, the Committee could suggest Schedule 1, paragraph 2(1)(b) should be amended to increase the number of members". That would leave it open-ended.

6542. Chris is here, and he is aware of all the discussions that have taken place this morning. The sentiments expressed here can be reported back in conjunction with the letter that will go to the Minister. Are Members agreed?

6543. Mr D Bradley: Agreed.

6544. Mr Lunn: Should we not change it to read “increase the number of members to satisfy the requirements of the suggested amendment"?

6545. The Chairperson: I do not think that that would be needed. All that needs to be inserted is the phrase “increase the number of members". Are Members agreed?

Members indicated assent.

6546. The Chairperson: The Committee is still examining the issues that it feels should be revisited. We now come to the issue of regulations for the ESA’s local committees, which is dealt with in paragraphs 60 and 65 of the Committee’s draft report on the Education Bill. This has been a significant issue for some stakeholders and members. Members may wish to scan those paragraphs to remind themselves of developments to date.

6547. The Committee wrote to the Minister on 29 June 2009 and informed her of the Committee’s wish for regulations to bring “clarity, certainty and confidence" to the arrangements for the ESA committees, as currently set out at paragraphs 7 and 8 of schedule 1 of the Bill and expanded on in the Minister’s letter of 17 June 2009. In that letter, the Minister indicated that she was not proposing to specify local committee arrangements in the Bill. In the Minister’s letter of 5 August 2009, she again rejected the idea of regulations to set out local committee arrangements. The Minister’s rationale in both cases is the same, and I quote from her letter of 5 August 2009:

“The ESA’s local structures will develop and evolve over time, and in response to need, and it would be difficult to accommodate this if the detailed structures were specified in legislation."

6548. Members will recall that at our meeting of 1 July 2009 the Committee Clerk was asked to prepare a draft enabling provision for regulations on ESA local committees. We are in the process of distributing the draft wording of an amendment to paragraph 8 of schedule 1 for members’ consideration. That draft wording would read:

“The Department may by regulations—

(a) require prescribed functions of ESA to be exercised on its behalf by a prescribed committee or employee of ESA; and

(b) regulate the appointment by ESA of an employee for the purposes of exercising such functions."

6549. Members should note that, implicit in a Department making regulations is a provision that enables the Department and the Minister to vary or revoke the arrangements for local committees by way of another regulation under the same enabling provision. Thus there is a facility to review the ESA committee structure and change it in response to need as it evolves over time. That facility addresses the Minister’s concerns. Members may wish to consider factors such as how urgently a change to the ESA committee structure may need to be made; whether laying further regulations would be an obstacle to the development and evolution of the ESA committee structure; or, given the importance of an effective system of local committees, whether changes should be subject to Assembly control.

6550. On that basis, members were minded in principle to see the ESA committee structure, particularly the structure of local committees, set out in regulations. During the recess, I asked the Committee Clerk to draft a section on that issue that could be inserted into the letter that the Committee will send to the Minister following today’s meeting. I apologise for the amount of paper that is being given to you and, indeed, that it is only being given to you now. I would have preferred to have had this earlier, but that was not possible. The section would be additional to the letter that has been approved and will be sent to the Minister. The additional section attempts to formalise what I have said to members about local committees and asks the Minister to look at the issue and come back to us with a definitive view.

6551. Mr O’Dowd: How will it work in practice? Do we envisage that, under this amendment, Assembly regulation or legislation will be required for a change to be made to the structure or shape of the local committee that covers Fermanagh, for example, or a large rural community?

6552. The Chairperson: No; I do not think that that would be required.

6553. The Committee Clerk: As set out in the Minister’s letter of 17 June, the vision is for 11 local committees as well as the subcommittees that would be part of the main ESA board. That is the broad form; indeed, the make-up and appointment process to such local committees could have a community or political aspect.

6554. Mr O’Dowd: I am aware of the structures. However, why is an amendment to regulate the structure of ESA committees necessary? Based on evidence, my understanding is that committee structures will become rigid if we include them in legislation. For example, if the subcommittee that will cover Fermanagh identifies issues that are particular to that area, and it wants to respond by making structural changes, does the amendment mean that that will have to go through the Assembly? If so, why do we need the amendment?

6555. Mr C Stewart: In her reply the Minister indicated her concern by stating that she did not want to specify the structure in the Bill, based largely on the point that John made about rigidity. There is no doubt that an approach based on subordinate rather than on primary legislation is less rigid and easier to change. Nevertheless, each time a change is proposed to a committee or to other structures, additional legislation will be required. However, that is, perhaps, putting a technical cart before a policy horse. The issue is whether the Committee feels that it is necessary to regulate such decisions at all. If so, subordinate legislation is certainly the preferable route. At this time, however, the Minister’s view is that it is not necessary to regulate that matter.

6556. Mr O’Dowd: My understanding of the concerns that CCMS, ELB and NICIE raised is that the Bill says “may establish committees". Consequently, those bodies wish it to stipulate: “shall establish committees."

6557. The Committee Clerk: On a point of clarification, those bodies wanted clarity and information on who would be on, the role of, and the nature of the appointment process to the ESA’s regional subcommittees, which will replace the existing five boards. That is the point that stakeholders were making: what representation will the ESA have at sub-regional level? We are told by the Minister that, in all, there will be 11 such subcommittees. However, in the Bill, there is no information about the form, purpose or process for arriving at the establishment of those subcommittees. That, in my recollection, is the point that the stakeholders raised.

6558. Mr O’Dowd: I am concerned that by attempting to resolve those matters we will put in place a structure that will not allow the local responses that will be required, whether in Fermanagh or in west or east Belfast. We are in danger of making things so rigid that that the ESA will have to come to the Assembly every time a structural change is required, and that would not assist anybody.

6559. Mr B McCrea: It is the absence of any proposals that causes me difficulty. All that I have picked up on is that, at some stage, the Minister will let us know what she has in mind. There are difficulties with oversight arrangements and agreement on A Shared Future. Therefore, I, for one, would support a call for somebody to bring forward proposals about how it will operate. If those suggestions are broadly in line with what people want to see, agreement, with provision for amendments, can be reached.

6560. Given that a huge amount of work is involved and that, legislatively, the Assembly is relatively immature and Members must learn a bit more about the way forward, I would prefer the legislation to include more scrutiny and oversight. At some stage, such arrangements may not be necessary. However, for now, can we please have definitive arrangements for the structures, including their powers; who will make appointments to them; their relationship with other bodies; the oversight arrangements that will be in place to supervise their activities; how we will ensure local inclusivity; and how equality legislation will be implemented? Let us have all those things laid out, and then we will be able to see whether we need to amend them. We have none of that detail, and that is why I am not prepared to give the Minister carte blanche and trust her to come up with a solution that will work, saying that if we do not like it she will change it. I am sorry, but that will not work for me.

6561. The Chairperson: That is what I tried to address in the letter, which stated that implicit in such a provision for the Department to make regulations is the power to vary or revoke arrangements. The situation to which John has referred would not happen. There would be no need for micro-management; if a change were required it would not have to go through all the processes. I take the point that Basil made: we still need to see exactly what is being proposed. It is not enough to say that there may be committees; we need to see what those committees will be, and that should be reflected in the Bill. The day-to-day running of it would not be included in the Bill, but at least we would know exactly what we were getting. At the moment, we do not know.

6562. Mr C Stewart: It may help if I summarise by saying that if there is ever to be a significant change to the committee structure of the ESA, the Minister of the day would of course want to approve or reject such a proposal by the ESA. The policy question that members have raised is whether that should be subject to a formal process of regulations or whether it should be an administrative ministerial matter to be decided in the normal course of events. Either option is technically possible; whether members prefer one option or the other is a political policy matter.

6563. Mr B McCrea: That was nicely summarised.

6564. Mr O’Dowd: I am still not convinced that the proposed amendment allays either Basil’s concerns or the Chairperson’s. I still reflect on the deliberations of the Committee, and our concern was that as the word “may" was used instead of “shall", there might be no committees established. I do not think that this amendment will ensure that committees are established, and I certainly do not think that it will help local delivery. I cannot endorse the proposed amendment today. I am sceptical about it, but I would like some time to ponder it.

6565. Mr B McCrea: How and when will we learn what the committee structures will be, whether in legislation or not?

6566. Mr C Stewart: I cannot give a straight answer to that today. I will have to speak to colleagues and come back to you.

6567. Mr B McCrea: We are going around in circles here. You are right to highlight whether those structures will be under ministerial responsibility or established through regulation. You know my position on regulation, for the reasons that I have outlined, but, given that people have made a plea to come up with something, it would help us to deliberate if we had at least a template as a good “starter for 10", and we could work from that. However, the position of the UUP remains that we prefer regulation.

6568. The Chairperson: In fairness, that does not tie John down to anything either. All that we are saying in both those elements of the draft letter to the Minister is that the issue should be reconsidered. We have been waiting. The point is made time and time again that the issue is urgent. I do not know how long we have to reflect before a decision has to be made, but it is not the place of the Committee to make that decision. It is for the Department and the Minister to decide what should be done, and then we will decide whether we agree or not.

6569. We have tried to establish some context, and we are also trying to reflect the issues raised by stakeholders such as CCMS, the education and library boards and the Northern Ireland Commission for Catholic Education (NICCE), who have raised the issue as a particular concern. That is the reason for the letter. It is not being prescriptive; it uses the phrase “to reconsider". Rather than further delay, as John suggested — although I appreciate that he saw the letter only this morning — the letter is an attempt to bring all the issues together and put them to the Minister, and we could then have a definitive response by next week.

6570. Mr C Stewart: I appreciate that, Chairperson, and I understand the point. I will relay to colleagues and to the Minister that members want to see more detail of what the Department has in mind for ESA committee structures and functions, and that those details will allow members to come to a view on what the levels of control and regulation of those matters ought to be. I cannot comment on the matter today, because at present it is outside the orbit of the legislation on which we are working. We will ask for more information and bring it back to the Committee.

6571. Mr Lunn: It seems like a lot of discussion over a two-word amendment. If the Department decided that it needed to regulate a function of the ESA — the Bill gives them the authority to do that — and to delegate it to a prescribed employee of the ESA who may have had a big hand in making appointments, is there anything to stop the ESA then allowing that prescribed employee to form a committee, which is a natural thing to do?

6572. Mr C Stewart: I am sorry; could you take me through that again? I am not sure that I followed all of it.

6573. Mr Lunn: I hope that I can. Paragraph 8(4) of schedule 1 says that:

“The Department may by regulations —

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

6574. The proposed amendment changes that to “an employee or a committee". I am not sure why it is there at all, but if the Department enforced that regulation and gave authority to a prescribed employee of the ESA to have a particular function, is there anything to stop the ESA providing that employee with a committee to do the work?

6575. Mr C Stewart: No. It might be helpful to remind members that there is a boundary between employees of the ESA and members of the ESA — one cannot be both at the same time. If a decision is made to delegate a particular function to an employee, the ESA could set up a subcommittee to scrutinise the delivery of that function or the performance of a particular duty. The Bill allows committees to be established and functions to be formally delegated to committees or to employees. The issue that the Committee is deliberating on is whether it wishes to go one stage beyond that and ask the Department to take a power to regulate that delegation when establishing committees.

6576. The Chairperson: The important word is functions, not structures; there is a vast difference. We have almost created confusion between structures and functions. The structure is of little importance sometimes; it is the function that that structure is engaged in that is crucial. That is why the proposed amendment refers to required prescribed functions, not to prescribed structures.

6577. Can we reach agreement? I take the point that Basil made and the concerns that John raised, but we will not tie parties or individuals in to a definitive position. It is another attempt to say that the Bill has raised issues, and that following the letter of 5 August that we received from the Minister, we want those issues to be “reconsidered", which was the word that was used in the letter. Can we agree that that letter, with the amendment that was added to it earlier, be sent to the Minister?

Members indicated assent.

6578. The Chairperson: I will raise the next matter before we lose quorum. I do not want to disappoint members, but I have only a couple of pages to revisit, after which we will get to clause 24. However, when we get to clause 24, we still have to get to clause 55. I suggest that we finish the issues that we were to revisit and that we meet again tomorrow at 10.00 am to start at clause 24 and finish our consideration of the Bill. Many of the issues from clause 24 onwards are procedural, so we should not have to go into as much detail. However, we still have a duty to ensure that we have considered them.

6579. The Committee Clerk: On Friday, members received 34 departmental amendments. That adds to the burden of the Committee as we try to complete deliberations for a report at the end of September. It is becoming more urgent to address those 34 amendments and, if applicable, to get any issues back to the Department and the Minister.

6580. The Chairperson: We will include those tomorrow. We have to start from clause 1 again. I suggest that we commence at 24 and take the proposed amendments as we come to the relevant clauses.

6581. The Committee Clerk: We will go through the clauses until 55 and then return to the start and go through the clauses to which there are departmental amendments.

6582. The Chairperson: Tomorrow’s meeting will be to first consider the amendments from clauses 1 to 24 —

6583. The Committee Clerk: The vision was that we go from clause 24 onwards and then return to the amendments.

6584. The Chairperson: Yes.

6585. The Committee Clerk: Some clauses have departmental amendments and some, fortunately, do not. We have to revisit some of the earlier clauses for which the departmental amendments have just arrived.

6586. The Chairperson: Do members agree that we will meet tomorrow morning?

6587. Mrs M Bradley: I have a Social Development Committee meeting in the morning.

6588. The Chairperson: Who will be available in the morning?

6589. Mr McCallister: I will be available for a short time.

6590. Mrs O’Neill: I will be available from 10.00 am to 11.00 am.

6591. The Chairperson: My suggestion is that we should meet —

6592. The Committee Clerk: For an hour at least.

6593. The Chairperson: For as long as we have a quorum.

6594. Mrs M Bradley: I will try to make myself available between the two Committees.

6595. The Chairperson: I apologise that, procedurally — I am talking about my own party — we will not be able to reach full complement until after Monday. We got caught in House procedure on that one.

6596. The Committee Clerk: The important thing is that any issues go back to the Department tomorrow afternoon. If we leave it until next week, time will run out.

6597. Mr Lunn: Will we have a quorum tomorrow?

6598. The Chairperson: At the minute, we have John, Michelle, and you. Dominic, will you be available in the morning?

6599. Mr D Bradley: I will.

6600. The Chairperson: We have a quorum.

6601. Mr B McCrea: I cannot attend. Perhaps we can meet earlier at, say, 9.00 am.

6602. The Chairperson: Do members agree to meet at 9.00 am?

Members indicated assent.

6603. The Chairperson: OK, the Committee will meet tomorrow at 9.00 am in room 21.

6604. Mr B McCrea: I have to leave at 10.30 am.

6605. The Chairperson: If we start at 9.00 am we should get a couple of hours. We will now revisit the issue of employment regulations. I remember that stakeholders and the Committee raised the point about bringing clarity, certainty and confidence to the employment relationships that are envisaged in the Bill. In her letter of 5 August 2009, the Minister confirmed her agreement to the insertion in the Bill of:

“an enabling power (not a duty) for regulations to be made on model schemes of employment and guidance on employment schemes. As requested at the Committee’s meeting on 1 July 2009, a paper on these employment scheme regulations will be prepared for the Committee."

6606. To date, that paper and the draft regulations have not been provided to the Committee. Chris, is there any indication as to when we will be provided with those?

6607. Mr C Stewart: They are in my briefcase, Chairperson, but unfortunately I cannot hand them over to you until the Minister formally signs off on them. We hope to have those papers with the Committee very soon.

6608. The Chairperson: Would it be possible to have them tomorrow?

6609. Mr C Stewart: Yes, and I will aim to do that; they are drafted.

6610. Members who wish to have an early insight into the possible scope and content of the regulations should look at schedule 2 of the Education (Northern Ireland) Order 1998, because they are very similar to it. Schedule 2 sets out in some detail the respective roles and responsibilities of the education and library boards and CCMS on the one hand and the boards of governors on the other. We want the regulations to make it clear that the key functions of boards of governors are for boards of governors only; they cannot be infringed on by the ESA in any way, shape or form, and we will govern the content of schemes of employment to ensure that that is the case.

6611. I apologise that the paper that we owe you on employment matters is not with you; however, I can provide members with early notice of other significant matters that will be addressed in that paper. I will cover three matters. As you said, stakeholders and members wanted clarity and certainty around respective roles. We hope that the regulations will provide that.

6612. Another issue that you asked us to look at was the availability of an effective challenge mechanism that a board of governors could avail itself of if it felt that the ESA was acting or purporting to act unreasonably either in the approval or operation of a scheme. We previously told the Committee that we would take advantage of an existing mechanism, the infamous article 101 of the Education and Libraries (Northern Ireland) Order 1986, and that we would try to provide a link or cross-reference in the legislation to that mechanism.

6613. When members get a chance to study the regulations, they will notice that that is not included in the list of amendments that we have provided. The reason for that is technical and reflects the advice of the Office of the Legislative Counsel. It advised that it is not appropriate to make that sort of cross- or linking reference in legislation because it would merely restate existing law. In effect, the counsel said that we already have such a mechanism — article 101. It applies to all functions of the ESA, so a further reference to it in legislation would be inappropriate because it would not change the law. Therefore, our response to the Committee is that we accept entirely the need for such a mechanism and that it already exists.

6614. The Chairperson: Who has the power to instigate article 101? Is it the Department? Is that power available to boards of governors?

6615. Mr C Stewart: Yes. A board of governors could make a complaint under article 101 and the Department would be obliged to investigate it.

6616. The Chairperson: OK.

6617. Mr C Stewart: The third point is a fairly significant one. Some stakeholders raised concerns about staff dismissals and in particular about whether a decision of a board of governors to dismiss a member of staff could be made binding on the ESA. The advice that we have consistently given over the past few years to the Committee was that that was not possible. That reflected the legal advice that we had at the time. In essence, the legal advice was that employment law should always take precedence over education law. Employment law places certain responsibilities on the ESA as an employer and, because of that, the decision of a board of governors to dismiss a member of staff could not be automatically binding on the ESA.

6618. The ESA would have to have its own consideration of that decision.

6619. Quite a number of stakeholders were significantly concerned by that, and they raised the matter with the Committee on many occasions. On foot of that, we were asked to reconsider the matter, which we have now done, with the benefit of legal advice. Having looked at it again very carefully, the lawyers have come to a different conclusion, which I hope stakeholders and members will find helpful. The conclusion is this: education law in these matters would take precedence over employment law. Therefore, the Bill, as currently drafted, makes a decision of a board of governors to dismiss a member of staff automatically binding on the ESA, which would be under a legal duty to put such a decision into effect, whether it agreed with it or not.

6620. That means that there is a disparity between education law and employment law. That disparity would not affect the power of a board of governors to make such a decision, but if not addressed, could give rise to difficulty with the ESA in any subsequent legal proceedings. What it would, in effect, mean is that a board of governors would take a lawful decision, a member of staff would be dismissed, but the ESA would be found to be at fault under employment law because it had not gone through the necessary processes. We can remedy that disparity with an Order that would modify employment law to ensure that there is no disparity with education law. Indeed, the power to make such an Order is already proposed in clause 12 of the Bill.

6621. That is a quick trot over a very technical issue, and the paper will set it out in a little more detail. However, the core issue is that we can, without further change to the Bill, address the key concern that a number of stakeholders raised with us, which was that a decision of a board of governors to dismiss a member of staff ought to be binding on the ESA. The effect of the Bill is that it will be binding.

6622. The Chairperson: Chris, that is very helpful. That was a major issue that people from across the sectors had raised, and we will obviously consider it.

6623. Mr C Stewart: The policy intention was always that boards of governors would have that level of autonomy. We wrongly perceived that there was a barrier to that in employment law. We have found a way around that barrier.

6624. The Chairperson: I asked the Clerk to draft additional paragraphs for inclusion in the Committee’s response to the Minister’s letter of 5 August. Members will now be given a copy of those additional paragraphs. They deal with schemes of employment, and our purpose in drafting them is simply to find out the timescale for the formal regulations to be brought before the Assembly.

6625. Mr C Stewart: We certainly want the Committee to see the detailed text of the proposed regulations within a matter of days. We want those regulations to come into force on 1 January. In order for that to happen, we need to have Royal Assent at the right time and the early commencement of the power to make the regulations. We then need to make the regulations and bring them forward for formal Committee scrutiny in order to have them operational in time for 1 January. That is tight but doable.

6626. The Chairperson: In the Minister’s letter to the Committee of 5 August, she objected to the suggestion that the enabling provision would state that the Department shall have a duty to make regulations. In her letter, the Minister states that:

“To provide a duty to make regulations would be a most unusual approach as, normally, regulations are made under enabling powers. Your letter does not make clear why the Committee is seeking such a prescriptive approach or is this a unanimous view of the Committee. The Committee will be aware that the RPA related legislation tabled before the Assembly by Executive colleagues has not been subject to such restrictions."

6627. The draft paragraphs welcome the Minister’s decision to have regulations and states that the Committee does not wish to be prescriptive. It also emphasises the Committee’s wish to be informed of the timescale for bringing the regulations formally before the Committee and of the planned date to lay the regulations before the Assembly. Committee members may wish to consider whether such information will be adequate to give the Committee sufficient clarity, certainty and confidence with regard to the Minister’s proposals.

6628. The Department’s paper of 4 September 2009 on the full set of departmental amendments to the Bill includes an amendment to clause 4, which inserts an enabling provision to allow the Department to make regulations on employment schemes. That amendment reads:

“The Department may by regulations make provision as to the form and content of employment schemes."

6629. Do Committee members have any comments on that? I am trying to crystallise our position.

6630. Mr B McCrea: To clarify, you are saying that if the Minister is able to bring forward her regulations, we will be able to have a look at them and move the process forward a bit more speedily.

6631. The Chairperson: That is a good summary of what we are trying to do.

6632. Mr C Stewart: We hope that the Committee will have the text of the regulations as early as tomorrow.

6633. The Chairperson: Is that agreed?

Members indicated assent.

6634. The Chairperson: There was an issue with clause 12(1). Earlier today, the Committee discussed whether the power to make Orders should be subject to an affirmative procedure since it will amend primary legislation. Chris, will you comment on the rationale for clause 12(1) being subject to negative rather than affirmative resolution procedure? We have had difficulty in getting our heads around that.

6635. Mr C Stewart: There is no particular policy intention behind that. I was as surprised as some members when I checked and found that the clause was subject to the negative rather than affirmative resolution procedure. As you rightly suggest, where there is a power to modify primary legislation, it is usually subject to the strong Assembly means of control through the affirmative resolution procedure. In the case of clause 12(1), I cannot explain why the Bill was drafted in the way it was; I can only assume that the legislative draftsman followed his normal practice for a clause that has the power to modify employment law. That is not new; there is such a power in the Education (Northern Ireland) Order 1998.

6636. There is no particular policy intention behind the drafting of clause 12(1) in that way. The Minister has not adopted a formal position on the issue, so if the Committee wants her to consider subjecting the power in the clause to the stronger Assembly method of control, without pre-empting her decision, I am sure that she will do so.

6637. The Chairperson: The Committee discussed earlier whether the consultation requirements in clause 12(2) should be replicated in clause 50. Chris, will you comment on the absence of consultation requirements in clause 50 and say whether the Department would consider inserting some form of consultation requirement?

6638. Mr C Stewart: Again, that is a matter for the Minister to consider. I have no reason to assume that she would resist the notion of consultation. The power to modify primary legislation through an administrative Act is serious and is not something that one should undertake lightly. It should never be done under the cover of darkness — there should be full consultation. Whether or not that should be on the face of the Bill is something on which the Minister may want to reflect.

6639. The Chairperson: The Committee should perhaps consider whether that makes the process more cumbersome or achieves more clarity. The reason that we raised some of those issues was to achieve clarity.

6640. Mr C Stewart: It could do —

6641. The Chairperson: Consultation is good, but it is sometimes considered to be another delay in bringing something into the public domain.

6642. Mr C Stewart: There is a trade-off. I should be candid and point out that the purpose of the provision, which is fairly standard, is not to give the Department the power to sneak around and make changes to primary legislation; rather it gives us belt and braces if something goes wrong. When the legislation is passed, if we discover that we got something wrong, left something out or included something incorrect, that clause gives us a means to — and the speed is important — rectify the problem quickly. We need to think carefully about the potential effect of consultation on the timescale for remedying mistakes quickly.

6643. The Chairperson: If such a situation arose now, without the provisions contained in the Bill, how would the Department react?

6644. Mr C Stewart: If something was discovered now, I think that the Minister would want to move an amendment at Consideration Stage. The provision takes account of something that might occur later.

6645. The Chairperson: I mean that if the Education Bill did not exist, how would the current legislation that governs the Department deal with the situation?

6646. Mr C Stewart: It depends; I cannot say off the top of my head where similar powers exist in current legislation. I imagine that they must exist —

6647. The Chairperson: I mean in the Department of Education.

6648. Mr C Stewart: Sorry; I do not quite follow the question.

6649. The Chairperson: You said that the provision provides belt and braces if something does not function properly. How do you address that situation now? How would you amend it?

6650. Mr C Stewart: We would bring forward an Order to amend the legislation.

6651. The Chairperson: Would you not have a consultation process?

6652. Mr C Stewart: It depends on the nature of the issue. I cannot provide a specific example; however, if an aspect of the education service could not function or would be unlawful unless we moved quickly, consultation might be impractical. On the other hand, if we had made a mistake and the legislation did not give proper effect to a policy intention, the case for consultation would be much stronger.

6653. The Committee Clerk: I want to clarify a technical or detailed point for the Committee. The Committee may not be suggesting that you replicate the consultation requirements of clause 12(1) in clause 50(1). We could be talking about a similar type of requirement, bearing in mind what you said about the need to rectify a mistake urgently. That issue was raised in a stakeholder’s response, which said that there should be some kind of consultation requirement.

6654. Mr C Stewart: I understand that. With no disrespect to any stakeholders, they sometimes read legislation and interpret its intentions in the most draconian way possible. A colleague has advised me of an example where such a power was used to correct a simple spelling mistake in the Special Educational Needs and Disability (Northern Ireland) Order 2005. Such a matter is, perhaps, not particularly urgent nor does it require much consultation, but if such an error comes to light, it should me modified.

6655. The Chairperson: Does such an error fall under the definition of “reasonably practicable" that we discussed earlier?

6656. Mr C Stewart: Yes; an Order made under such a provision is no substitute for the normal legislative process that gives effect to a new policy.

6657. The Chairperson

6658. Thank you, Chris and Eve. You had an easy task again today, Eve. Endurance is all that is required. Today’s session was important because it provides a starting point. Thank you for your time and attention; we will continue tomorrow morning.

10 September 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr John McCallister
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill

Witnesses:

Mr Chris Stewart
Ms Eve Stewart

Department of Education

6659. The Chairperson (Mr Storey): We now move to the clause-by-clause scrutiny of the Bill. If we work hard, we can get this concluded by 11.00 am. That is the challenge, and the clock starts now. I thank Chris Stewart and Eve Stewart for making the effort to be here this morning.

6660. In scrutinising clause 24, which deals with the duty of the education and skills authority (ESA) to conduct examinations and assessments, it will be helpful for members to refer to their folders, which include the Committee’s draft report on the Education Bill. We are at paragraph 156 of the report. Members may also wish to take a moment to consider the stakeholders’ comments on clause 24 and the Minister’s letter dated 17 June.

6661. In respect of clause 24, the Department for Employment and Learning (DEL) has requested that the Department of Education (DE) amend the provisions to extend the ESA’s role to cover a range of non-regulatory functions that relate to vocational qualifications, including advising DEL and supporting organisations that are involved in developing vocational qualifications. Has the specific wording for that amendment been agreed yet?

6662. Mr Chris Stewart (Department of Education): Yes; I was under the impression that we had provided the Committee with the text of the DEL amendments.

6663. The Chairperson: Are they included in the folder? I did not see clause 24 mentioned in the amendments that were given to the Committee.

6664. Mr C Stewart: A colleague has just confirmed that we have provided the Committee with the text of the proposed DEL amendments.

6665. The Chairperson: Will members check if they have that?

6666. The Committee Clerk: I wish to clarify that on 4 September we received proposed amendments from the Department for clause 26 but not for clause 24.

6667. Mr C Stewart: There is a separate list of amendments.

6668. The Chairperson: The other list that we have goes from clauses 1 to 23 only.

6669. The Committee Clerk: The other list has some proposed amendments to clauses 1 to 23; however, the DEL amendments do not come to mind.

6670. The Chairperson: Can we get that clarified immediately? There were also comments on clause 24 from the Association of Northern Ireland Education and Library Boards (ANIELB) and the South Eastern Education and Library Board (SEELB).

6671. Mr C Stewart: I apologise for any confusion; we might have made an error. We thought that we had sent the text of the DEL amendments to the Committee. If we have not, we will certainly forward that to the Committee today, because the detailed wording is available.

6672. The Chairperson: The Association of Northern Ireland Education and Library Boards raised the issue of a perceived risk or potential conflict of interest that would damage public confidence in qualifications. Has that concern been addressed?

6673. Mr C Stewart: We understand the point that the association has made, but it remains the view of the Department and the Minister that there is no conflict of interest for the association to fear. The issue of the standards of examinations or qualifications for which the ESA will be responsible and for which the Council for the Curriculum, Examinations and Assessment (CCEA) is currently responsible is an important one. Close working relationships exist among the accreditation and regulation bodies throughout all the jurisdictions in the British Isles, and that will continue. Indeed, in the list of proposed departmental amendments, members will see that we propose to take a specific joint working power to further enhance that.

6674. The underlying point is that the all regulatory authorities recognise the importance of the portability of examinations. The standards of examinations and qualifications have to be internationally recognised, otherwise they would be devalued. That will be the main driving force behind the ESA’s approach to that function. I think that the association has grossly overstated the issue of a potential conflict of interest.

6675. Mr O’Dowd: Did the association have any evidence of that actually happening?

6676. The Chairperson: In paragraph 158 on page 53 of the draft Committee report, the Association of Northern Ireland Education and Library Boards states:

“The inclusion of CCEA and its role within ESA gives rise to possible concern around the integrity of statistics and standards. The Bill needs to clarify and separate these functions to give the public confidence".

6677. The association is saying, therefore, that public confidence will be eroded. It does not cite any empirical evidence for that. However, did the association make a reference at some stage to an organisation in England and Wales that it used as a comparison? Do members have any further comments on that?

6678. Mr Lunn: What way does that change the existing situation?

6679. Mr C Stewart: It does not change it particularly. That block of clauses effectively transfers the current functions of CCEA to the ESA. If there is any area in which there is a potential conflict of interest — and I see little such potential — it is the fact that the ESA will also be responsible for providing curriculum support and giving professional advice and training to schools. The Department does not regard that as involving any degree of conflict of interest. If the issue is, as the Chairperson said, one of statistics, I find the association’s comments even more bewildering. Official statistics published by the Department are audited and must comply with standards set by the Office for National Statistics.

6680. Mr Lunn: It looks like a non-event to me; there is no basis for the association’s concerns.

6681. Mr C Stewart: I entirely agree with the member’s comments.

6682. The Chairperson: Having considered that clause, are members content with it as drafted at this point?

Members indicated assent.

6683. The Chairperson: Clause 25 allows the ESA to carry out other functions in relation to the curriculum, examinations and assessments: for example, the production of teaching materials and the publication of guidance regarding the curriculum. The ESA also may charge other examining bodies or authorities for carrying out functions on its behalf. I refer members to a concern raised by the SEELB in paragraph 163 of the draft report. It states:

“by requiring ESA to produce materials for use in connection with the Curriculum for 2 year olds, there is a danger that this might formalize their learning experiences. The benefits of formalizing the curriculum for children of such a young age are questionable and come at a time when many other countries are introducing children to formal education at a much later age."

6684. Others will have a different view on that. However, I thought that the SEELB was expressing a different point of view. Do members have any comments? Chris?

6685. Mr C Stewart: It is an interesting comment by the SEELB on the Minister’s policy. Perhaps it is an opportune time to remind the SEELB that Ministers make the policy and that it is the job of the education and library boards to carry it out.

6686. The Chairperson: OK. That is what will appear in Hansard. I am glad that you said that and not me.

6687. Having considered the clause, are members content with it as drafted?

Members indicated assent.

6688. The Chairperson: Clause 26 concerns the discharge by ESA of its functions under clauses 24 and 25. In carrying out its function in relation to the curriculum, examination and assessment, the ESA is placed under a duty to have regard to:

“the requirements of industry, commerce and the professions regarding education."

6689. It is also placed under a duty to have regard to the requirement of people with special educational needs and learning difficulties. I refer members to paragraph 166 of the draft Committee report and to the stakeholders’ comments on the clause. In response to concerns raised by CnaG in paragraph 167 of the draft report, the Minister’s letter of 17 June indicated that the Department was considering making an amendment to clause 26 to ensure that the curriculum support and similar services will be sensitive to the needs of Irish-medium education. The letter also states that the Minister is considering an amendment to clause 2 of the Bill, which concerns the functions and general duties of the ESA, to include a duty on the ESA to encourage, facilitate and develop Irish-medium education.

6690. We have supplied members with copies of the proposed amendments this morning. However, as we said yesterday, we will come back to those amendments. The Department has also proposed to delete clause 26(2)(b), indicating that the DEL amendment is no longer required. Can you clarify why that is necessary?

6691. Mr C Stewart: Our DEL colleagues have simply advised that that provision is no longer required.

6692. The Chairperson: The Department’s proposed amendment to clause 26(1) would mean that a new third sub-paragraph would be included at the end:

“(iii) the requirements of those attending Irish speaking schools (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006) who are taught in Irish".

Are there any comments from Members?

6693. Mr Lunn: Where is that amendment going to be inserted?

6694. The Chairperson: Clause 26(2)(b) will be removed, and at the end of clause 26(1) a third subparagraph will be added, which will simply read:

“(iii) the requirements of those attending Irish speaking schools (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006) who are taught in Irish".

6695. Do members have any other comments?

6696. Mr O’Dowd: Will we be returning to that issue?

6697. Mrs M Bradley: I am sure that Dominic Bradley will want to comment on it as well.

6698. The Chairperson: Yes; I am sure that he probably will. Indeed, I also express a difficulty as a member rather than as the Chairperson. I would not approve the amendment at this stage.

6699. Mr B McCrea: Can you clarify the process that we are going through? We are having a run-through to ascertain whether members have any general comments that the Department can consider. Are we then going to come back and look at things in more detail?

6700. The Chairperson: Yes; we will have to consider each individual amendment.

6701. The Committee Clerk: At the end of the day, the Committee has to decide whether the clause should stand as read in the Bill or whether the clause should be amended. That consideration includes looking at the Bill plus the now 34 departmental amendments and, indeed, maybe a few more that are still to be proposed. The Committee will have to decide whether it is content with the Bill plus the departmental amendments or whether it wants to amend any of the clauses. We will look at the schedules in the same way. Today’s process is one of consideration so that we can tease out any final questions that can be put to the Department today or put formally to the Department later, as was done yesterday. In the next week, and certainly in the following week, the Committee will have to make a final decision on each clause.

6702. The Chairperson: Are members content with the clause as it stands, or do they support the proposed amendment? I am certainly not content with the amendment.

6703. Mr O’Dowd: Having listened to the Committee Clerk’s advice, we must take a view on the amendment today. We support amending the clause as proposed by the Department.

6704. Mr B McCrea: Having just received the proposed amendment, we will need to consider our position, but our overriding concern is that a particular sector must not be treated differently to any other sector. We will have to look at it and see what we come up with.

6705. Mr O’Dowd: If members need more time to consider the amendment, I am happy to withdraw my proposal until they have had a chance to look at it. We can revisit it.

6706. Mrs M Bradley: That allows Dominic to make his comments.

6707. The Chairperson: I am happy to accept that.

6708. We move to clause 27. Some members have perhaps not brought their black folders, which include a copy of all the amendments that were sent to us by the Department.

6709. The Committee Clerk: The Department provided us with a useful table last Friday. It shows the rationale for the amendments and the terms of the amendments.

6710. Mr B McCrea: Which black folder?

6711. The Chairperson: It is in yesterday’s folder, and it is included under the heading ‘Matters arising’. Members, it gets difficult with all these pieces of paper; we will try to keep it as simple as possible.

6712. Clause 27 is entitled ‘Functions of the Department in relation to accreditation of certain external qualifications’. It requires the Department to develop and publish accreditation criteria for external qualifications and accredit those qualifications where they meet those criteria. The Department may obtain advice from the ESA or any UK body exercising accreditation functions and shall seek to ensure that standards of qualifications accredited by it are recognised as equivalent to standards of qualifications accredited by other UK bodies.

6713. We have no stakeholder comments on clause 27. Paragraph 172 of the draft report relates to clause 27, and it contains the rationale for the Department’s amendment to the clause to provide for a joint working power. At present, CCEA works jointly with regulators in England and Wales on a number of regulatory issues. However, when CCEA is abolished and the Department assumes its responsibilities, the Department’s legal advice indicates that a specific joint working power for the Department will be necessary.

6714. The wording of the Department’s proposed amendment was received by the Committee on 4 September 2009. It would insert new subsections (5)(a) and (5)(b) at clause 27. It is proposed that clause 27(5)(a) and 27(5)(b) will read:

“(5A) The Department may —

(a) co-operate or work jointly with another body exercising functions in relation to the accreditation of qualifications (whether in the United Kingdom or elsewhere);

(b) provide information relating to the accreditation of qualifications to such a body.

(5B) Nothing in subsection (5A) —

(a) affects any power that exists apart from that subsection; or

(b) authorises the disclosure of information in contravention of any provision made by or under any statutory provision which prevents disclosure of the information."

6715. That is ensuring that the ESA has the power that currently exists within CCEA.

6716. Mr Stewart: That is correct. It underlines the point that was made earlier about a potential conflict of interest. It is worth drawing members’ attention to the fact that it is the Department that accredits the qualifications. CCEA does the heavy lifting and provides us with the advice, but the formal function is with the Department.

6717. Mr B McCrea: Clause 27(5) as it stands in the Bill contains the wording:

“exercising similar functions elsewhere in the United Kingdom".

The amendment proposes that that be changed to “the United Kingdom or elsewhere". That is the substance of the change that has been brought in.

6718. Mr Stewart: You are correct in that the addition of the new subsection will not change what happens on the ground; it is merely to put absolutely beyond doubt its legality. You are right; the clause has been drafted in a way to ensure that that joint working is possible with the corresponding authorities across all the jurisdictions in the United Kingdom and outside it.

6719. Mr B McCrea: Does clause 28 deal with equivalent qualifications or has that more to do with DEL’s role?

6720. Mr C Stewart: Both Departments will have similar functions, and in exercising their functions, they rely on the advice that they receive from CCEA at present and that they will receive from the ESA in due course — or, in DEL’s case, from the Office of the Qualifications and Examinations Regulator, which is known as Ofqual.

6721. Mr B McCrea: There is an issue over equivalent qualifications from the South and from other European countries. Does the Department of Education intend to take the lead in introducing equivalent qualifications throughout the island of Ireland? That is certainly a cause of concern for us, and I am not sure whether I am for or against that.

6722. Mr C Stewart: I cannot answer that in detail, Basil. I shall have to consult colleagues on the curriculum side. If I were to answer that, I would be getting into areas of policy with which I am not familiar. The intention of the clause is to put beyond doubt the power of the ESA to work jointly with the equivalent bodies in the jurisdiction of the United Kingdom, the Republic of Ireland, and, indeed, beyond if necessary.

6723. Mr B McCrea: I note that that is what the clause is for, and we must reflect on how it is properly constructed.

6724. Mr Lunn: Chris has just answered the point that the clause is intended purely to allow the Department to work jointly with other authorities. If the intention is to standardise the quality — if that is the right word — of our qualifications with those from other parts of the world, whether that is the Republic or anywhere else, surely that is a good thing. That would be a move from consulting to working jointly in that area.

6725. Mr C Stewart: I may not have understood Basil’s question correctly, but I think that he was drawing a distinction between ensuring comparability of standards between qualifications and moving to joint qualifications. I am not qualified to comment on joint qualifications.

6726. Mr Lunn: I do not see anything to indicate that joint qualifications will be introduced. It refers only to our qualifications and, as far as possible, standardising them so that those qualifications mean as much in the outside world as those in the Republic, the UK or Finland.

6727. Mr C Stewart: Neither the clause nor the amendment contains anything specific on joint qualifications. I think that Basil was asking whether the purpose of the clause was to facilitate such a policy change. I cannot comment on such a potential policy change; I simply do not work in that area.

6728. Mr Lunn: Are you being unduly suspicious, Basil?

6729. Mr B McCrea: I only asked the question.

6730. The Chairperson: Can we get clarification from the Department on that point?

6731. Mr C Stewart: Yes, certainly.

6732. Mr O’Dowd: It will be up to the relevant Government or Department to decide whether to accredit qualifications. We could not say to the Dublin Government, the Scottish Government, the Welsh Government or the French Government that they have to accept our qualifications; only they have the power to accept them. In case there are suspicious minds that see a conspiracy theory, the North/South Ministerial Council (NSMC) can also deal with joint qualifications. The clause is concerned with ensuring that the structures under which the Department of Education works are capable of being scrutinised by the Committee for Education and the Assembly.

6733. The Chairperson: In fairness, the concern is that the new organisation will meet Monday to Friday from 9 am to 5 pm all year, as opposed to the NSMC, which meets only once a quarter. The issue is over what may or may not go on, and I question why the new subsection is necessary. Clause 27(4) currently states:

“The Department may obtain advice on the exercise of its powers under this section from ESA or any body exercising functions in the United Kingdom in relation to the accreditation of qualifications."

6734. Therefore, not much is being changed.

6735. Mr C Stewart: We do not propose a huge change to clause 27. The fact that I was cautious in my answer may have resulted in unnecessarily giving rise to concern on the part of some members. I can confirm that there is nothing in the review of public administration (RPA) policy that is intended to lead to any change in the qualifications that are awarded. The purpose of the clause is merely to put beyond doubt the legality of current practice, which is that the various bodies that are responsible for those functions in the various jurisdictions already work closely together, and that will continue.

6736. The measure was not something that we thought was necessary, but our lawyers advised us to include it for belt and braces to put the matter entirely beyond doubt. I am not aware of any intended policy change behind the measure, but as the curriculum and examinations are not matters on which I work, I will double-check with my colleagues and get back to the Committee to confirm that.

6737. Mr Lunn: Although everything that Chris said was relevant, his most relevant comment concerned the solicitor’s advice. We are not looking at an issue about which the Minister has a bee in her bonnet; we are looking at the solicitor’s advice.

6738. Mr C Stewart: On this occasion, the bee was in the lawyer’s bonnet.

6739. Mr B McCrea: All I did was ask a question.

6740. Mr Lunn: You see what happens.

6741. Mr B McCrea: I will not make that mistake again.

6742. There is no reason why the Department should not look at positive engagement. As I said, I was not sure whether I was for or against the matter.

6743. Mr Lunn: Now you are convinced that you are in favour of it.

6744. Mr B McCrea: Like you, I am in a benign mood today, so all sorts of things could happen. The Committee will receive a response and discuss it, and I am happy with that.

6745. Mr Lunn: Although we are on only our third clause, we have already had two minor divisions along the lines of two political views that are represented in the Assembly. Sooner or later, we will have to come to a decision and exhibit a wee bit more trust and a little less suspicion. I wish that that would happen now, because the few arguments so far seem to me, who is sitting in the middle without a particular axe to grind, to have been superfluous.

6746. The Chairperson: I appreciate your comments, Trevor. However, we must ensure that all genuine concerns about the Bill are raised. If and when the Bill is passed, it will be too late to raise any concerns as it will be law. We are not dealing with a school report; we are dealing with something that will become law and which will have wide-ranging implications for the future governance of education in Northern Ireland for many years to come. I accept your point, but genuine concerns and issues must be allowed to be raised. Yes, we will have to make decisions on the Bill, and we have a few weeks in which to do that.

6747. Mr Lunn: I fully understand the differences of opinion on the bigger issues, but some of the disagreements have been mighty trivial. I long for the time when the Committee agrees on aspects of the Bill. I am still waiting.

6748. The Chairperson: Concerns have been raised and, having considered the clause and the proposed amendments to it, are members content? Can we ask the Department to show us the legal advice that it received?

6749. Mr C Stewart: The Department’s lawyers would be reluctant to provide that information. We can give the Committee the thrust of the legal advice and the thinking behind it, but members will find that there is very little to it.

6750. The Committee Clerk: We received a very useful table last Friday, which details the terms of the departmental amendments. A copy of that document was sent to each Committee member, but I can get a copy for those members who do not have theirs with them.

6751. Mr Lunn: What colour of folder was it in?

6752. Mr B McCrea: The Committee staff will have to do a little bit to help the Chairperson and members with the paperwork, because no matter what folders I bring with me, they are always the wrong ones. Fortunately, John McCallister brings another set of folders, so between us we nearly have all of the papers.

6753. The Chairperson: It is very difficult to manage all the papers; we have to find a logical way to work through them. It would be very useful for members to have the spreadsheet in front of them.

6754. The Committee Clerk: If members have the spreadsheet in front of them, the Chairperson will not have to spell out the terms of each amendment, which are quite detailed. I will make six copies of the spreadsheet. As soon as we received the spreadsheet on Friday, we sent copies of it to all members.

6755. Mrs M Bradley: Was it sent as a separate sheet?

6756. The Chairperson: No, it was not.

6757. Mr B McCrea: May I make a suggestion? Is there any chance that we could have it on a computer screen so that we could see the clause rather than the Chairperson having to read through everything? Is that too far advanced?

6758. The Committee Clerk: The Assembly is moving in that direction for the presentation of paperwork.

6759. The Chairperson: The other reason that it has to be read out is that it must be read into the record of Committee proceeding.

6760. Mr B McCrea: I have no problem with the Chairperson reading it; I know that it must be done. Nevertheless, when it is read I just say, “OK" because I have not found the relevant piece of paper. Either someone must put the piece of paper in front of me and say that that is what we are discussing so that we can move fast, or it should be on a screen. It is only for reassurance so that members can get the point. People keep telling me that there is a really useful spreadsheet here, a really useful table there, and that in the black folder that I received yesterday there are other papers. It is difficult to keep up to speed.

6761. Mr O’Dowd: I wonder how they do it elsewhere.

6762. Mr B McCrea: They use computer screens to show information. Anyway, I will soldier on because I do not want to fall down.

6763. The Chairperson: The draft report gives a clause-by-clause explanation that can be used in conjunction with the Bill.

6764. Mr B McCrea: I have worked that one out.

6765. Mr C Stewart: Notwithstanding the logistical difficulties, Mr O’Dowd’s drawing attention to the table is timely in relation to that point. Members will find that the wording in the table is very close to the wording of the legal advice that we received. It gives the gist of the legal advice.

6766. Mr B McCrea: Where is that table?

6767. The Committee Clerk: It is being photocopied. The table arrived at 5.00 pm on Friday after the folder had gone to members. It was e-mailed and put in members’ pigeonholes on Friday. However, members will receive a copy now.

6768. The Chairperson: A technician has to look at one of the microphones so we may have to suspend.

6769. Mr B McCrea: Are you saying that my words of wisdom are not being recorded? What a complete waste of a morning.

6770. The Chairperson: It simply means that we will have to go back to the start again.

6771. Mrs M Bradley: Everything that Basil said has gone down the tube.

6772. Mr B McCrea: Absolutely, Mary. What a waste.

6773. The Chairperson: We can continue.

6774. We move on to clause 28, “Approval of courses leading to external qualification", which ensures that grant-aided schools will only provide courses of study that result in a qualification that is approved by the Department. Likewise, the clause also ensures that institutions of further education will only provide courses of study that are approved by the Department for Employment and Learning. SEELB is concerned with clause 28 and stated that it appears to open up the possibility of post-primary schools offering approved post-16 courses without specific teaching approval in response to development proposals, as have been required since 2003.

6775. Mr C Stewart: No, that is not the case.

6776. The Chairperson: The answer to that is that it does not.

6777. Mr B McCrea: Is there nothing in the white folder about clause 28?

6778. The Committee Clerk: Not as yet. There were no comments, with the exception of SEELB. We will be dealing with that in due course in our draft report.

6779. The Chairperson: Do members have any comments?

6780. Having considered clause 28, to which no amendments have been proposed, are members content with the clause as drafted?

Members indicated assent.

6781. The Chairperson: Clause 29, “Disciplinary powers of General Teaching Council", amends existing provision for disciplinary procedures in respect of teachers by the General Teaching Council in cases of unacceptable professional conduct or the conviction of registered teachers.

6782. There are comments about this in the draft report at paragraphs 175 to 181.

6783. The General Teaching Council for Northern Ireland said in its submission that it was content with the new provisions and that they are sufficiently robust to allow the council to fulfil its regulatory function.

6784. Are there any comments?

6785. Mr Lunn: If I remember correctly, the General Teaching Council started off with major concerns about this, but it now seems to be satisfied; let us hope that everybody else will be as well.

6786. The Chairperson: Having considered this clause and any proposed amendments at today’s meeting, are members content with clause 29 as drafted?

6787. Members indicated assent.

6788. The Chairperson: We will consider clauses 30 to 33, which deal with schemes of management, their content and arrangements for their preparation, submission, approval and revision, as well as the reserve power of the ESA to make such schemes. There are similarities with the schemes of employment, which you may wish to highlight in light of the differences that we discussed yesterday in regard to the schemes of employment.

6789. Clause 30 requires every grant-aided school to have in place a scheme of management that provides for the membership and procedures of the board of governors and for the management of that school. It is the duty of the board of governors to give effect to the scheme of management. The arrangements in clause 31 mirror those for the preparation and approval of employment schemes, with the submitting authority preparing a draft scheme for submission to the ESA for approval, taking into account the ESA’s guidance, including model schemes.

6790. Clause 32 reserves to the ESA a power to make a scheme of management for a school in the absence of agreement with the submitting authority. Clause 33 permits the submitting authority to prepare a revised scheme and gives the ESA a power to direct the submitting authority to revise its scheme. These clauses are referred to in paragraphs 182 to 190 of the draft report.

6791. Wording for a departmental amendment to clause 31(7) was received by the Committee on 4 September 2009. It changes the meaning of “submitting authority" and replaces the present 31(7)(a) and 31(7)(b) with new wording so that, as with employment schemes, the submitting authority in relation to schemes of management is the trustees of a school, where a school has trustees. In the case of a controlled school, the submitting authority is the board of governors of the school; in a voluntary or grant-maintained integrated school, it is the trustees of the school or, if the trustees so determine, the board of governors of the school.

6792. The Association of Northern Ireland Education and Library Boards comments that the existing schemes are no longer fit for purpose but that boards of governors are being encouraged to run with them. Chris, can you clarify that point? What is the situation regarding that?

6793. Mr C Stewart: With one or two exceptions where schools have declined to comply with the legislation, all schools have schemes of management. It is, perhaps, a sweeping statement to say that they are all no longer fit for purpose, although I am sure that that is the case for some schools. Most schools have schemes of management in place at present.

6794. The requirement on the ESA will be to produce guidance and model schemes. It will, in due course, want to review the existing schemes of management for all schools to ensure that they are fit for purpose or that they are modernised and brought up to good practice if necessary. Unlike schemes of employment, schemes of management are, by and large, in place, and therefore it is possible to have a degree of continuity on 1 January 2010. It is not quite the same with schemes of employment.

6795. The Chairperson: One of the issues raised by the Western Education and Library Board was that the preparation of schemes of management would place a considerable burden on boards of governors. At one stage, it was said that model schemes were being worked up by the Department. Has any of that work been done?

6796. Mr C Stewart: That was in relation to schemes of employment. As yet, there is no development of model schemes of management, but that will need to be taken forward. I understand the concern articulated by the Western Board on behalf of boards of governors, and I will respond to it in two ways. First, when model schemes are available — of course we would involve all the interests across the sphere of education in the development of those schemes — it is perfectly possible for a school to adopt a model scheme without amendment. That would place no particular burden on any board of governors.

6797. Stepping back from the issue, it is important to remind ourselves of the importance of schemes of management. There are 1,253 grant-aided schools, which spend £1·8 billion of public money, and educate 400,000 children. The provisions state that, in discharging those functions, there must be rules that must be adhered to. The Department believes that that is important. It will impose some workload on boards of governors, but the view of the Department is that it is inescapable.

6798. The Chairperson: Can you recall a case where a school included an element of a scheme of management that was not approved by the Department?

6799. Mr C Stewart: Not to my knowledge, but I would have to double-check with colleagues to give you an absolute assurance. By and large, the existing provisions have not called for much intervention on the part of the Department.

6800. Mr B McCrea: It will be perceived as an attempt to control more independently minded boards of governors.

6801. Mr C Stewart: It is difficult to counter that perception if there are those who are determined to adopt it. However, the crux of the provisions is to place an obligation on a public institution to have rules and to stick to them.

6802. Mr B McCrea: Yes, but in certain areas — the voluntary grammar schools, for example, feel that they are doing a good job — there is an issue. It would be helpful to see what the model rules will look like. We could then provide much more reassurance to people that they are in fact common-sense proposals.

6803. Mr C Stewart: That is a fair point. If there are those in schools who feel — justifiably — that they have been doing a very good job for a long time and that their governance arrangements constitute best practice, we would encourage them to assist the Department in the development of the model schemes.

6804. Mr B McCrea: That is a useful way of moving forward. It would be useful if people felt that, rather than arrangements being imposed upon them, — albeit benignly — they were involved in the development of the arrangements and could establish what room for manoeuvre there was. Although I agree that there is a need for codified standards, it would be useful for us in deliberating the Bill if we knew what those were and what provision there would be for people to amend or become part of the development of those standards.

6805. Mr C Stewart: That is a fair point, and the Department wants to encourage that. The provisions are not an attempt to control or to suggest that one size fits all; there is considerable room for manoeuvre. The Department accepts that boards of governors and trustees of schools are best placed to know what governance arrangements work best for them. If they have a model that works well for them and which meets the Department’s requirements for sound governance arrangements, there is no reason why those arrangements cannot be rapidly approved, or, indeed, become a model scheme for adaption by other schools.

6806. Mrs M Bradley: Boards of governors seem to be scrupulous in doing their job. They are volunteers, and we must be careful not to cause any problem for them, because many teachers and principals greatly depend on their boards of governors. The board of governors is the heart of a school, and we must be careful with that.

6807. Mr O’Dowd: I agree that boards of governors must be involved in the development of management schemes. The question seems to be whether there is a need, in principle, for such schemes. No argument that holds water can be made against the need for having schemes of management.

6808. This morning, we saw the PAC report, and in my time on the PAC we produced a governance report. There is an onus on all Departments to ensure that arm’s-length bodies — in this case one could consider boards of governors as arm’s-length bodies — that spend public funds must have written contracts, in this case management schemes, so that there is proper governance between those bodies and the relevant Department. Things must be properly managed, and, no doubt, in 99·9% of cases they are. However, if something goes wrong, one must be able to go back to the agreement to determine whether procedures were followed or whether they were robust enough and must be changed or managed in a certain way. Consequently, management schemes are important. Indeed, they must be developed in conjunction with boards of governors, but this amendment is designed to ensure that they are in place.

6809. Mr C Stewart: That is a valid point, and, further to what Mary said, we are cognisant of the fact that boards of governors are taking on significant responsibilities in a voluntary capacity. Governors and potential governors tell us that they want training, support, advice and, above all, clarity with respect to what they are responsible for and how they are expected to carry out their duties. That is what the scheme of management will provide: a clear framework within which governors will be able to operate.

6810. Mr B McCrea: We all agree with everything you said; however, we are attempting to work out when misperceptions might arise or, in exceptional cases, when we might have to do something. People are concerned that a one-size-fits-all approach, in which a model that is adopted is not theirs, will cause problems. All that we are trying to point out, as John rightly said, is that it is to governors’ advantage to have model rules set down and to have our help available. It would be to their disadvantage to implement a draconian system with which they are unhappy. As I said, we are trying to identify problems that are likely to arise in order to find some way to reassure governors.

6811. I outlined my position at the start: given the lack of trust, I want everything to be stipulated in the Bill. Trevor asked why I could not just take things on trust. Can we find a middle way? The governance of governors is a serious matter that is strategic to everything that we are attempting to do, so we must address it. We have raised our concerns, and we would like the Department’s assistance to identify some way to deal with them.

6812. Mrs M Bradley: Some boards of governors have said that they want to continue doing the job; however, if concerns or worries arise, they might walk away. I hope that I am not offending anyone, but boards of governors include excellent people who know exactly how the work is done. They want to continue doing the same work, so we must not introduce too many changes that will make them feel that they were not doing the job right in the past. Some of them may walk away, and schools do not need that.

6813. Mr C Stewart: I agree with you entirely, and we wish to reassure governors on that point and on the points that Basil made. Indeed, management schemes are not a new requirement, and it is not implying that boards of governors have been somehow deficient in how they have led schools. Schemes of management have been a requirement in legislation since 1998; we are simply bringing those provisions up to date. We agree entirely with your sentiments about the need to support and not discourage potential governors.

6814. With respect to Basil’s point about providing assistance to identify a middle way, I agree entirely, and we will make every effort to do so.

6815. We have framed the legislation in that way because we recognise the differing views from different schools and different boards of governors; some say that their job is difficult enough and that they do not want to write the governance rules; they want a sensible model that they can adopt and put into practice. Equally, other boards of governors do not want to be controlled and do not support a one-size-fits-all approach. They say that they have operated well for 350 years and that they do not have to prove their competence. They want us to approve their governance arrangements and allow them to get on with the job.

6816. The legislation is flexible enough to cope with both groups and all shades of opinion in between. If a school wants to contribute to the development of a model scheme or merely adopt the model scheme, it can do so. If a school is not interested in the model scheme and feels that it has a perfectly acceptable and proven model of governance, it can submit that view to the ESA, which should approve the scheme rapidly.

6817. Mr Lunn: Schemes of management have been a requirement in legislation since 1989, according to the Department.

6818. Mr C Stewart: I beg your pardon; I stand corrected.

6819. Mr Lunn: That is 20 years instead of 11.

6820. Mr C Stewart: Time flies when reading such information.

6821. Mr Lunn: Again, I wonder what all this is about. The Association for Quality Education’s (AQE) objection is probably the most significant, because that body makes the running on many issues at the moment. However, I do not get it. If schools have theoretically had to provide a scheme of management for the past 20 years — whether or not they have — the legislation appears only to formalise the situation and ask schools to submit the information to the ESA rather than to the Department.

6822. Mr C Stewart: Sometimes the AQE will not take yes for an answer. [Laughter.]

6823. Mr Lunn: I know; I am not getting at the AQE. I sympathise with Mary’s comment about the fragile nature of governors and their commitment to schools. I understand that sentiment, because governors, along with everybody else, must be wondering what is going on. It is an easy job to walk away from unless the individual is highly committed, which most governors are. Therefore, I do not want to impose more work or stress on governors. However, the legislation does not do that.

6824. Mr C Stewart: That is an important point. The thrust —

6825. Mr Lunn: The legislation should formalise the situation for governors and offer ease rather than stress. They will know exactly where they stand, because they will have a formal scheme, which they should have had in the first place.

6826. Mr C Stewart: That is the intention of the legislation. It is not intended as a control mechanism or a mechanism by which the ESA will dictate to boards of governors. It will give boards of governors a clear framework in which to discharge their responsibility to lead and manage schools. That is an important role. The thrust of many RPA proposals is not, as some people characterise it, command and control. That is why the Department will place duties on the ESA to provide training and support for governors and professional staff in schools, because they will lead and deliver. The ESA’s job is to support, not to control or regulate.

6827. Mr B McCrea: People do not understand the benign nature of the Department’s interest. A board of governors might have operated successfully for some time and might think that the Department will use the legislation to dictate a model scheme for the future regardless of the scheme that has operated in the past. That is why they are concerned. They need reassurance; that is the AQE’s view. We must explain the Department’s benign interest in order to make progress.

6828. The Chairperson: There are three elements. If the situation is the same as in the past, why does clause 31(4) state that the:

“submitting authority of a school shall also submit to ESA such information as ESA may require concerning the extent (if any)".

6829. The second part of that quotation is critical. The ESA will be given the power to require schools to include certain matters in their scheme of management.

6830. The Minister’s initial position was that employment schemes should be fit for purpose. However, genuine concerns raised by stakeholders forced the Minister to amend that provision. We now have regulation for employment schemes. Yesterday, the Committee discussed the clarity and certainty of and confidence in employment schemes; we want to instil those three elements in boards of governors. We could, surely, do that through regulation. Moreover, if schemes of management are so important, why in September 2009, three months before the establishment of the ESA, does the Department not have the schemes in place?

6831. If a school wanted to treat the Department or the ESA as a friendly colleague, explained that it did not want to be burdensome and asked for a scheme of management, the ESA would have to reply by saying that it did not have one, even though there is a requirement in legislation for that to be in existence.

6832. Mr C Stewart: I will endeavour to reassure you on all three points. You asked why there are no model schemes when the operative date is so close, but there are model schemes. Schemes are in existence in the vast majority of schools. Standard schemes have been adopted in the Catholic maintained sector for Catholic maintained schools, and in the controlled sector for controlled schools. I have no doubt that those schemes could be improved, and, in due course, the Department expects the ESA to produce new and better models. If a board of governors asks the existing authorities or the Department for help or a model scheme, we can provide that.

6833. You asked why the Department does not follow the same route used for employment schemes and regulate the content of schemes of management. The driver for that change, and the concern that was expressed by stakeholders, does not arise. The purpose of a scheme of employment is to apportion functions between the ESA and a board of governors to decide who does what in the employment arrangements.

6834. Some stakeholders were concerned that the ESA would not be benign in that matter; that it would have too much power and too many functions and encroach upon the proper role of boards of governors. That was never the Department’s intention, and it is not the ESA’s intention. However, in recognition of those concerns, the Minister proposes regulations that will govern what can be included in an employment scheme, and will put absolutely beyond doubt the ability of the ESA to gather too much power unto itself, even if it wanted to.

6835. That issue does not arise for schemes of management, because they do not apportion functions between the ESA and boards of governors: all the functions are for boards of governors. A scheme of management is simply a set of rules under which a board of governors will operate. The ESA will have no role in the management of any school, even controlled schools. One key change that will be made in the second review of public administration (RPA) Bill will make boards of governors the managing authorities for those schools, not the ESA. The ESA will have no role in the operation of any scheme of management; therefore the Department does not see the same need to regulate as it does for schemes of employment.

6836. The Committee is concerned about the clause that allows the ESA to ask for information in particular circumstances. The reason that I asked for that particular provision to be included is much simpler than you fear. Stakeholders asked us to minimise the bureaucracy. They told the Department that they did not want to submit a draft scheme to the ESA only to find that it takes the ESA 18 months to approve or suggest further work be done on that scheme. Stakeholders were very concerned that we would introduce a bureaucratic process that could not be operated by the ESA.

6837. The intention behind the clause is to allow a school to propose a scheme of management, which is one of the model schemes that the ESA has produced and which should therefore be approved instantly.

6838. Equally, a school might present a draft scheme of which the first 19 out of 20 paragraphs are the same as those in the model scheme, with the twentieth paragraph slightly tailored because it wants a slightly different approach. That would allow the ESA not to worry about the first 19 paragraphs because they are standard, and it could look quickly at paragraph 20 and clear the scheme. The purpose behind that is not to impose a draconian information-gathering regime on a board of governors but to provide a quick and easy route for the approval of schemes so that we can cut down on bureaucracy. Mary stressed the importance of that very point.

6839. Mrs M Bradley: Boards of governors are totally confused by the way in which the education system is going. They express that view all the time at governors’ meetings. Governors have served schools well for years, and it is very important for them to look after their schools. We must encourage them.

6840. Many governors are tired and are getting on in years, and they say that they could not cope with the new system. That is simply because no one has ever addressed them or told them what will happen. That has happened as a result of neglect by the Department. Volunteers give a hell of a lot of hours, and a hell of a lot of work goes into those hours. Someone must at least recognise the work of governors and talk to them to try to save good people from walking away.

6841. Mr C Stewart: That is a very valid criticism. I shall not attempt to defend the Department if that is the way that governors feel. The message for the Department and the existing organisations that work closely with the governors — the education and library boards and the Council for Catholic Maintained Schools (CCMS) — is that they must recognise their responsibilities to work with the boards of governors to prepare them for the change and to ensure that they are provided with accurate information about the effect of the provisions and are not unnecessarily or unduly concerned by the one or two wilder speculations from some stakeholders.

6842. Mrs M Bradley: Chris, although you are doing a good job trying to convince the Committee about that —

6843. Mr C Stewart: Is that recorded in Hansard, Chairman?

6844. Mrs M Bradley: Someone from the boards must go out and convince the governors to stay where they are.

6845. Mr C Stewart: That is very important.

6846. The Chairperson: Is it appropriate for the ESA to become the employer of all grant-aided schools before schemes of management are in place?

6847. Mr C Stewart: Schemes of management will be in place. If we do nothing at all, there will be schemes of management in the vast majority of schools on 1 January 2010.

6848. The Chairperson: The existing ones?

6849. Mr C Stewart: Yes. It is important that new schemes of employment are in place by that date, because those do not currently exist.

6850. Mr B McCrea: Some people looked at the clauses negatively, but you said that there is plenty of flexibility and that if a scheme is pretty close, that is OK. Is there a set of guiding principles on which the ESA will base its judgement? As John mentioned some time ago, certain guiding principles are needed for corporate governance. Provided that those are met, it should be OK. People are worried that the ESA may, for other reasons, use those powers to take control. There could be a set of parameters within which the ESA must work. The ESA might say that annual accounts must be produced. Would it also say what those accounts must look like? How far could it specify? What are the terms of reference that the ESA will use in coming to its determinations?

6851. The Chairperson: Your question is: what are the guidelines? We have not seen them. We are taking it on trust, and that is the problem. On the issue of employment, we heard stakeholders tell the Committee that they did not trust what the Department was doing. Steps were taken, and we await the response from those stakeholders. I assume that they will be reasonably content with the proposed amendments.

6852. However, schools and stakeholders have raised the concern that they do not know what the guidance on the schemes of management or the model scheme will be. Perhaps that is something that the Assembly and the Committee need to see.

6853. Mr C Stewart: I understand that point, and I understand the perceptions that some stakeholders have. That is why we said to stakeholders that they should not wait for us to impose our wisdom, or lack of it, on them from on high. They are the people who run schools on a day-to-day basis, and they know what works best, so we asked them to work with us to develop the models.

6854. Basil asked who guards the guards, or who sets the rules. A hierarchy of rules comes from the Department of Finance and Personnel (DFP) and the Audit Office through the guidance that they produce on how public authorities are to be run and governed and how accountability is to be operated for public finance. We are all obliged to stick to those rules.

6855. When it comes to our stewardship of the ESA, we will be looking to ensure that it does not impose unnecessary bureaucracy on schools. Therefore, if schools have a form of annual report or a set of accounts that conform to a standard model, we would not expect the ESA to make those schools jump through hoops simply because the ESA would prefer a different form of table or a slightly different approach to an annual report. That is not in anybody’s interests. It would take up scarce resources and scarce time and take people away from the important job of leading their schools. That is certainly not something that we would tolerate.

6856. Mr B McCrea: The big problem is what happens if you get promoted?

6857. Mr C Stewart: There is little danger of that. [Laughter.]

6858. Mr B McCrea: Judging by the way that things are going today, you are doing really well. You sit here, with your silken Civil Service skills, and say that everything is rosy and that everything will be fine.

6859. Mr C Stewart: I am just checking that Hansard got all that. [Laughter.]

6860. Mr B McCrea: For the benefit of Hansard, you are very good at your job. However, I am trying to make a point. I am not doing so to be difficult; it is a new term and a new start and we are trying to engage. When we look at legislation, we have to point out our issues and suggest ways in which we think that those issues could be fixed. You are saying that you are not legislative counsel and that you do not understand the way that things are going down. However, I wonder whether there is not a middle way that provides basic guidelines — guidelines to which we would be adhering anyway. That way, people can agree that what we are doing is reasonable. If we include certain accountability measures, people can check those and see that what is happening is correct. It would create a locus for what the ESA will be looking for.

6861. Everything that you said was absolutely right. If someone comes along with a better idea, we can have a discussion on that and move forward. However, looking at the Bill, it is the same as any contract that I have ever seen. Many people would think: “I’m not signing that." For example, clause 33(1) states that:

“The submitting authority of a grant-aided school—

(a) shall if ESA so directs or revised guidance issued under section 31(3) so requires".

6862. The language, which I understand to be legislative counsel’s type of language, is not particularly encouraging to people who think that they are running their schools.

6863. Mr C Stewart: That is a fair point, and I thank you for your earlier kind words. I have to confess to the Committee that they contrast with the description of me that I heard at the Presbyterian General Assembly. There, I was described as a Marxist brute. [Laughter.]

6864. Mr B McCrea: They may have access to a higher truth than I do.

6865. Mr C Stewart: I will leave members to decide which description is the more apt.

6866. I understand the point that you are making. Anyone who is looking for a minimalist degree of control, or as hands-off a relationship as possible with the ESA, is not likely to find encouragement in the standard forms of words that are used in legislation. We will have to work hard to get the trust that, as you quite rightly said, needs to characterise the relationship. One of the things that I would do is tell schools — particularly the voluntary grammar schools, which have very significant concerns about this and which would rather not be part of the arrangements if it were at all possible — that this is the policy of the Minister and the Government of the day, but that we want to make the arrangements work as best we can for them.

6867. I would invite them to tell us what their minimalist model for a scheme of management would be — the simplest, most straightforward set of governance rules that, left to their own devices, they would adopt for themselves and that they would see as being necessary for the smooth running of their schools. That seems to me to be a good starting point for a model scheme for schools that want the maximum independence from the ESA. The Department would then tell the ESA that if it wants anything more than that in a scheme of management it would have to produce a pretty convincing argument, because those who run schools tell us that that is enough.

6868. The Chairperson: In fairness, Chris, it was not just the voluntary grammar schools that raised that concern. The North Eastern Education and Library Board (NEELB) said:

“These schemes take on added significance when it is widely acknowledged that the responsibilities of Boards of Governors from 1st January 2010 will change fundamentally, yet it is the understanding of the NEELB that Boards of Governors will be encouraged to operate under existing schemes of management which in the view of this Board are ‘no longer fit for purpose’. In the view of the NEELB it is essential that model schemes are available to all schools with effect from the introduction of ESA."

6869. However, we do not have them.

6870. Mr Stewart: If the representatives of the NEELB were here I would ask them why the managing authority for controlled schools is operating schemes of management that, by the board’s own judgement, are no longer fit for purpose. That is a question that only the NEELB can answer. I recognise their concerns, and they are entitled to express their views, but it must also be recognised that the education and library boards have opposed this part of the Minister’s policy. They do not agree with the policy of giving schools autonomy to run their day-to-day affairs. They would prefer that, within the RPA, we had adopted a model of controlled schools administration, and they have put forward their arguments for that. However, that is not the Minister’s policy. The Minister’s policy, recognising the views that have been put by other stakeholders, is that schools are most successful when they have the opportunity to run their own affairs on a day-to-day basis without undue interference from education authorities. That is the thrust behind those proposals and right through the RPA.

6871. The Chairperson: Trevor, do you have any comments?

6872. Mr Lunn: I am OK, Chairperson. Let us just say that earlier comments might apply again, but I will not delay proceedings.

6873. Mr O’Dowd: I concur with what Chris said about the NEELB’s comments about schemes of management. If that board is admitting that its schemes of management are not fit for purpose, the Education Committee should write to it asking what it has done to ensure that those schemes of management are brought up to standard. In that instance, its governance arrangements are obviously inadequate. Some of the comments by the education and library boards about the Education Bill have been designed to be unhelpful; I am being as moderate as I can be about some of those comments. The education and library boards have been charged with the governance of the education system for a long time. Instead of reflecting their experience to us, they have, until redundancies come into effect at least, adopted an oppositional stance.

6874. I say “fair play" to anyone who steps forward to take a place on a board of governors. I served on a board of governors for some time, and I was shocked by the amount of work involved and the commitment it took to run the school. However, people do step forward and volunteer to do the job. People who serve on those boards are there not only to look after the pupils’ education, but to look after a vast amount of public funds. I think Chris mentioned a figure of £1·8 billion — £1·8 billion of public funds that boards of governors are tasked with spending. As a scrutiny Committee of the Assembly, we must put in place the most rigid of governance schemes to ensure that that money is used properly and that the boards of governors look after pupils’ education. That is our task; we must ensure that that happens.

6875. Should we introduce legislation that makes it impossible for boards of governors to operate? Of course not. Should we encourage and help boards of governors? Yes, we should. The development of those schemes of management must be achieved in conjunction with the boards of governors. If the model schemes suit some boards of governors, so be it. If other boards of governors believe that they can tweak those model schemes, that should be encouraged. The bottom line is that if a board of governors steps forward and refuses to implement a scheme, or if the scheme is inadequate, then that board of governors must be challenged. They are there to educate children and they are tasked with using £1·8 billion of public funds effectively. The Education Committee needs to scrutinise that.

6876. The Chairperson: We could get into that debate, but it is not the time or the place. Various stakeholders have commented on the legislation. Various elements of the education world, not just voluntary grammar schools or the Governing Bodies Association (GBA), have made very critical comments. The Minister has commented on certain education sectors, describing them as an unhelpful minority. If we get into that, we will be here all day.

6877. Mr O’Dowd: The GBA and other bodies are perfectly entitled to criticise and comment, but a governance body that says that its schemes of management are not up to scratch needs to be challenged. An education board is telling us that its schemes of management are not up to scratch. What has that board done about it? If the board has not done anything, there is a serious question mark hanging over it.

6878. The Chairperson: Chris, do you have any other comments?

6879. Mr C Stewart: We have gone over the ground fairly extensively.

6880. The Chairperson: Having considered clauses 30 to 33 and the proposed amendments, are members content with them as drafted? I register the fact that I still have concerns.

6881. Mr O’Dowd: We agree with the amendments, but if people want to return to them, so be it.

6882. Mr Lunn: I take it that this is not a majority decision and that if any member has a concern, they can register it.

6883. The Chairperson: Yes.

6884. Clause 34 places a duty on the board of governors of a grant-aided school to promote high standards of educational attainment by pupils of the school, and places a duty on the board of governors to co-operate with the ESA regarding actions that the ESA has undertaken to promote the achievement of high standards of educational attainment.

6885. Clause 35 states that the board of governors shall include community governors, and defines them as:

“persons living or working in the local community".

6886. Clause 36 allows part-time assistant teachers to be eligible for election to a board of governors.

6887. Paragraphs 191 to 210 of the draft Committee report outline the issues that were raised in relation to those clauses. In its submission, C na G sought a legal requirement that governors of Irish-medium schools should be committed to the continuing viability of the school as an Irish-medium school, mirroring the legislative requirement for integrated schools. The Minister seemed to agree with C na G in correspondence that the Committee has seen.

6888. Chris, do you have any other information on that?

6889. Mr C Stewart: The Minister is still considering the need for the amendment suggested by C na G, along with two others, which are not related to these clauses: one from Sir Reg Empey, and one from the National Society for the Prevention of Cruelty to Children (NSPCC), which we will come to in due course. The Minister has not yet come to a decision on those three amendments.

6890. The Chairperson: Time is of the essence.

6891. Mr C Stewart: We appreciate that.

6892. The Chairperson: The Bill will allow for part-time teachers to become governors. How will that work in practice? That has not been the case to date.

6893. Mr C Stewart: It has not been the case to date, and we think that that is a weakness and inequality in the current legislation, which is the reason for the proposal. It would operate in exactly the same way as it would for other members of staff. Part-time teachers will be eligible for nomination and election to staff governor.

6894. The Chairperson: Could a situation arise whereby a part-time teacher becomes a member of one school’s board of governors while also teaching at another school? Is there an issue of conflict of interest around intake and enrolment of pupils?

6895. Mr C Stewart: I recognise the point that you are making, but we do not see schools operating in that way. Increasingly, it needs to be the case that schools that serve a particular community must recognise that they are part of a system and that they should work in co-operation and not in competition. That is particularly true for post-primary schools, which clearly need to co-operate in order to deliver the curriculum entitlement to the communities that they serve. That would lessen the scope, if any, for conflict of interest in that type of situation.

6896. Miss McIlveen: Why were they excluded in the first instance? Was there a rationale for it?

6897. Mr C Stewart: I do not know; I could speculate, which may be unhelpful. Perhaps it was thought at the time — and we are going back quite some time as regards the legislation — that only those working in a full-time capacity would be able to represent the views of the body of staff in the school. The thinking has moved on quite considerably from those days.

6898. Miss McIlveen: I suppose that there are now full-time teachers who may be working reduced hours or who may have moved to part-time teaching.

6899. Mr C Stewart: I think that that is right, and the incidence of part-time working is probably much higher than it would have been when the legislation was drafted originally.

6900. Mr Lunn: I would like clarification around an amendment to the previous Orders. Does that mean that assistant teachers always could be members of the board of governors?

6901. Mr C Stewart: Yes. If I recall the definition correctly, an assistant teacher means anybody other than the principal and vice-principal.

6902. Mr Lunn: So the provision is just being extended to include part-time teachers.

6903. The Chairperson: An issue has been raised around clause 35, which mentions community governors. Some people have argued that it is very prescriptive to define a community governor as someone who lives and works in the local community. There is no definition of what the local community is, because the local community for one school will be completely different to the local community for another school. Is the local community defined by geography, by religion or by social and economic boundaries? We run the risk of running into another legal minefield as regards how we define a person who lives and works in the local community.

6904. Mr C Stewart: We will do our best to keep the lawyers out of it. We recognise the concerns of stakeholders, but trying to adopt a tighter definition than the one we have might be unhelpful. It would run the risk of imposing a one-size solution that would certainly not fit all. We would interpret that definition as flexibly as necessary, with the determining factor being that we want to get the best people possible to serve on the boards of governors and to lead the schools. A working interpretation would be that the local community is the community served by the school. That, of course, will vary from school to school and from sector to sector.

6905. Some of the larger post-primary schools pointed out that they have very large catchment areas; in some cases, pupils travel over half the country to attend the school. Therefore, the communities served by those schools cover large geographical areas. I do not think that we would use that definition, or permit the ESA to use that definition, to stand in the way of any perfectly reasonable appointment of a community governor to a school — someone with the skills and competencies, the dedication and commitment to give up their time to play a leading role in a school. If there are people who are prepared to do that, we would welcome them with open arms. We would not want to use any obstructive definition to try to keep them out of a school.

6906. The Chairperson: Members have considered the clauses and any proposed amendments. Are members content with how they stand in the Bill?

Members indicated assent.

6907. The Chairperson: I still have a concern around the issue of community governors.

6908. Clauses 37 to 42 deal with inspections on behalf of the Department; powers of inspectors; reports and action plans; inspections of library premises; inspections on behalf of DEL; and assessors and lay persons. I will not read aloud all the issues around clause 37, but the stakeholders’ comments give an overview. Members should refer to paragraphs 212 and 213 of the draft Committee report.

6909. I note the Department’s response to the Belfast Education and Library Board’s comment on the requirement in clause 37(1) that schools be open at all reasonable times to inspection. The Department has clarified that the concept is well established in law and has explained that the Department would inspect schools when teaching, learning and ancillary activities are going on.

6910. The Department proposed an amendment to clause 37 as set out in the Minister’s letter of 17 June. It read:

“Clause 37(5) places a duty on inspectors to monitor, inspect and report on the nature, scope and effect of advisory and support services provided or secured by ESA under Clause 13 of the Bill. An amendment is proposed to include references to Clauses 24 (examinations and assessments), 25 (other functions of ESA in relation to the curriculum, examinations and assessments), and Clause 13 (advisory and support services) in order to bring these functions within the inspection regime."

6911. On 4 September, the Committee received the specific wording for the departmental amendment. It added at the end of clause 37(5) the additional words:

“and on the discharge by ESA of its functions under sections 24 and 25 (except section 25(1)(b))."

6912. The Department states that that amendment extends the remit of the Education and Training Inspectorate to allow the inspection of curriculum and qualifications.

6913. Mr C Stewart: On that first point, I reiterate the reassurance that we offered to the Committee in response to the Belfast Education and Library Board’s point. I am not an education inspector, but I was an inspector in a previous career, and I can assure you that in almost every instance where there is legislation that involves inspectorate functions engaging with a business or an authority, the standard formulation is that a business should be open at all reasonable times; in other words, when business is being carried out. However, it certainly does not allow the Education and Training Inspectorate to knock the door of a school at midnight and require admittance.

6914. I now turn to the scope of the clause and the amendment. In the clause as originally drafted, we proposed powers for the inspectorate to inspect, on behalf of the Department, some of the ESA’s functions. The Minister accepted the chief inspector’s advice that in order to produce a more rounded picture of what the ESA does and of its effectiveness, the inspectorate ought to have the right to use its formal powers to inspect a broader range of the ESA’s functions, particularly around the issues of curriculum, curriculum support and examinations. Those are the front-line support functions that the ESA needs to provide for boards of governors and staff so that they can do their jobs. Therefore, it is important that the Department ensures that the ESA is doing its job effectively in providing those functions; hence, the proposed amendment to broaden the scope of the inspection powers.

6915. The little exception to the amendment is the function of the ESA in providing advice to the Department. That simply reflects the reality that the provision of advice is not something that one can really inspect. The ESA will provide advice, and we will either accept it or not accept it. If we think that the ESA’s advice is not very good, we will soon say so. However, advice is not really something that is amenable to inspection.

6916. The Chairperson: In response to the concern of the Association of Northern Ireland Education and Library Boards about the right of inspectors to access information held by a school under clause 38, the Department has confirmed that the powers are similar to those in other jurisdictions and do not give the right to access data that would be prohibited under statute, such as the Data Protection Act 1998.

6917. Mr C Stewart: That is correct. We have confirmed that point. My colleagues in the inspectorate sought clarification about access to information. On receipt of further legal advice, we clarified that the legislation does not give anybody the power to contravene the Data Protection Act 1998.

6918. The Chairperson: The Ulster Teachers’ Union is concerned about who else could access reports.

6919. Mr C Stewart: The legislation governs that matter and sets out the rules on how the inspectorate must deal with the reports. The Data Protection Act 1998 comes into play again. People who have access to information have that access for a particular purpose. Using the information for a different purpose contravenes the Act.

6920. The Chairperson: Clause 39(3) imposes an obligation on boards of governors, as the responsible authority, to prepare an action plan in response to an inspection report. One of the education and library boards commented that the Bill places greater responsibility for educational standards on boards of governors. Furthermore, it mentioned the need for greater rigour in the inspection process and for a follow-up report with clear outcomes that will allow those charged with management responsibility at local level to discharge their duties. The Department said that it would consider the North Eastern Education and Library Board’s comments. Has the inspectorate considered that matter?

6921. Mr C Stewart: The inspectorate has taken that comment on board, and inspectorate colleagues contend that they regularly seek feedback from the Department, schools and stakeholders on the effectiveness of their inspection activities, particularly inspection reports. I know that the chief inspector recognises — as did his predecessor — the need to strive constantly to improve and sharpen the focus of their reports so that they meet their objective, which is to provide boards of governors and leaders of schools with the guidance that they need to improve operations in schools. That is the thrust of the inspection regime. It is not intended to be punitive; it is intended to be supportive and to help schools to discharge their responsibilities. The quality of inspection reports is vital. The inspectorate always welcomes feedback on its reports and will continue to do so.

6922. The Chairperson: In its response, the Department said that the legislation will merely bring powers into line with best practice in other jurisdictions. What new powers, if any, will the legislation give the inspectorate?

6923. Mr C Stewart: The new powers, such as requiring persons present to assist with access to documents, are outlined mainly in clause 38. Those are fairly standard powers of inspectorate provisions in a variety of public services. The legislation is imported almost directly from the equivalent English legislation, the School Standards and Framework Act 1998.

6924. The Chairperson: The Department proposes an amendment to clause 42, which relates to the appointment of assessors and lay persons for the purposes of inspection. The Department for Employment and Learning has requested an amendment that requires the Department of Education to consult it before appointing assessors and lay persons.

6925. Mr C Stewart: That is correct, and we have proposed a similar amendment for inspections that are carried out on behalf of the Department of Culture, Arts and Leisure (DCAL). If those functions are discharged on behalf of the Department for Employment and Learning or DCAL, it is not unreasonable for those Departments to have a say in who is appointed to carry out the inspections.

6926. The Chairperson: Are we still awaiting that amendment or is it incorporated in —

6927. Mr C Stewart: It should be on the list.

6928. The Chairperson: On the subject of lay persons, officials noted the error in the section of the explanatory and financial memorandum that relates to clause 42.

6929. Mr C Stewart: That is correct. A very important “not" was left out or mistakenly included in the sentence. There is a disparity between the Bill and the explanatory and financial memorandum. The Bill is correct; the memorandum is wrong.

6930. The Chairperson: That will, I take it, be changed.

6931. Mr C Stewart: The memorandum will be reprinted in due course, whereupon we will correct the error.

Are members content to group clauses 37 to 42?

Members indicated assent.

6932. The Chairperson: Clause 43 is “Grants for educational and youth services etc." Members will sit up at the mention of “grants". Perhaps we should take a moment to remind ourselves of the clause’s provisions. It allows the Department for Employment and Learning and DCAL, in accordance with the regulations, to pay grants to persons who offer a service or carry out research that is connected to education. Those grants will not be paid to the ESA, trustees or managers of a voluntary or grant-maintained integrated school or the governing body of an institution of further education. Paragraphs 215 and 216 of the draft report and the spreadsheet contain relevant information.

6933. YouthNet sought an amendment to clause 43, which deals with the purposes for which grants may be paid, the effect of which would be to refer to educational services and youth services in the same clause. Clause 43 (1)(a) would then read that: “the Department may pay grants, etc." Have members any comments? Chris, can you clarify that no amendment was made and that the Department did not consider one necessary?

6934. Mr C Stewart: We understand YouthNet’s position. It has an understandable wish to ensure that youth services, early-years services and schooling are treated on the same basis and are given parity of esteem, if I may use that phrase, wherever possible in the legislation. That is entirely laudable, and we support it.

6935. However, every so often, that runs up against technical problems. Members may recall discussion on clauses 2(2)(a) and 2(2)(b), which we will deal with again in more detail. Sometimes, for technical reasons, it is simply not possible to include all the services in one provision, mainly because of the differing age ranges of those in receipt of them. In that case, the construction of the clause was determined by the Office of the Legislative Counsel. Its view is that, for technical reasons, that is the best way to draft the clause.

6936. There is no difference in effect between what the clause, as drafted, allows to be done and what YouthNet wants to be done. It is a standard grant-making provision. In fact, it is not new: it is a direct lift and re-enactment of article 115 of the Education and Libraries (Northern Ireland) Order 1986. It does not introduce any new policy or grant-making regime. It simply tidies up legislation in the way that legislative counsel believes is technically sound.

6937. The Chairperson: Are members content?

Members indicated assent.

6938. The Chairperson: Clauses 44 to 48 deal with the protection of children and young persons. I refer members to paragraphs 220 and 222 of the draft report. At the informal reception, the Committee received a suggested amendment to clause 47 from the National Society for the Prevention of Cruelty to Children (NSPCC). The suggested amendment would enable the ESA not simply to issue directions to boards of governors but also to school principals when appropriate. The NSPCC memo and accompanying papers was forwarded to the Department on 15 July 2009.

6939. Mr C Stewart: The Minister is considering that suggestion, Chairman. I will not pre-empt her decision. One of the factors that she will want to consider is whether such an amendment would be appropriate because it may risk usurping the proper role of boards of governors. It is for boards of governors to lead and manage schools; it is for them to lead and manage principals and their staff. If we break the link, as it were, and allow the ESA to come between boards of governors and principals, that may not be appropriate. That is one matter about which other stakeholders might have significant concerns.

6940. Mr O’Dowd: The NSPCC is a respected body, whose views should be heard. However, how its views are listened to is important.

Am I right in thinking that the amendment was proposed during the informal gatherings?

6941. The Chairperson: It was subsequently approved.

6942. The Committee Clerk: It was received late and, subsequently, the Chairperson gave his approval for it to be forwarded to the Department as a late submission. We have had several late submissions.

6943. Mr O’Dowd: The Committee agreed which bodies would attend evidence sessions, and we received submissions from those bodies. However, a body — albeit a respectable body — came in late and submitted an amendment that was forwarded to the Department on behalf of the Committee. That seems to be an improper process.

6944. The Chairperson: I disagree. We can receive submissions during the Bill’s scrutiny. I think that we have a duty to allow organisations with bona fide concerns to raise those with the Department.

6945. The Committee Clerk: Several sectoral bodies have followed up their correspondence in the initial evidence. The Northern Ireland Commission for Catholic Education (NICCE) and Comhairle na Gaelscolaíochta (CnaG) are two examples. We have had a great deal of correspondence.

6946. Mr O’Dowd: Those bodies gave evidence to the Committee. Did the NSPCC give evidence to the Committee?

6947. The Chairperson: The informal receptions were part of the Committee’s work, so it is not outside the remit of the Committee.

6948. Mr O’Dowd: I have no difficulty with the NSPCC — it is, as I say, a respectable body — however, there is a process. Nonetheless, what is done is done.

6949. The Chairperson: Are we awaiting something from the Minister?

6950. The Committee Clerk: Yes. The Minister will respond to that.

6951. The Chairperson: Some members said that they have to leave at 11.00 am. If they do, the Committee will become inquorate. We have reached clause 49.

6952. Mr C Stewart: Will we take the rest of the clauses on the nod, Chairman? [Laughter.]

6953. The Chairperson: No. We will resume on Wednesday morning at 10.00 am in room 144.

6954. Mr O’Dowd: Will we meet all day on Wednesday? What are the arrangements?

6955. The Chairperson: I thought that it would be helpful to start the meeting on Wednesday morning, because it would give us more time to get more work done.

6956. The Committee Clerk: Chairperson, perhaps you should let members know that there is a possibility of another meeting next Thursday.

6957. The Chairperson: Would you prefer to have an all-day meeting on Wednesday, or would you prefer to do as we have done this week and meet on Wednesday and Thursday?

6958. Mr Lunn: We will have the same problem on the Thursday; there will be a maximum of only two hours.

6959. The Chairperson: That is correct. Do you want to have those two hours on Wednesday? We could start at 9.00 am, have lunch at the Committee and finish at 2.00 pm or 3.00 pm.

6960. Mr O’Dowd: I am flexible on both days.

6961. The Chairperson: Members, come prepared to have a longer session on Wednesday.

6962. The Committee Clerk: We will have to switch Committee rooms at lunchtime. We failed to incorporate the September monitoring presentation from the Department into yesterday’s or today’s meetings. We have yet to get papers on that.

6963. The Chairperson: We would do better to leave that until we get papers, and we will do it the following week.

6964. The Committee Clerk: We will do it on Wednesday if we can get the papers.

6965. The Chairperson: Chris and Eve, thank you for attending this morning’s Committee meeting.

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
Ms Eve Stewart

Department of Education

6966. 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.

6967. 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.

6968. There is also an issue with the nascent controlled sector body. We understand that it has been meeting, but we have no indication of who is on it, how they were appointed and whether the sector is satisfactorily served by it.

6969. The Chairperson: There is a report from Eve Stewart at B3 in the yellow folder. It provides a list of the people who attended the meetings of the controlled sector and the number of meetings that there has been. A controlled sector support meeting was held on 30 June in the Island Civic Centre, and an additional meeting was held in the same venue on 18 August. Some detail has also been provided in the letter to John Simmons.

6970. Mr B McCrea: I am happy to deal with that when it arises.

6971. The Chairperson: Would it not be preferable to deal with those points when we look at the amendments?

6972. Mr B McCrea: I am merely highlighting a concern and giving the Department a chance to respond. We will, of course, deal with them when we reach that stage. To make it easier, I will drop you a note on the issues with which we have concerns.

6973. The Chairperson: We will come to those items anyway, but you are at liberty to drop me a note.

6974. Mr B McCrea: It is a matter of getting through the papers. I wanted to highlight an issue; I do not want to detain people.

6975. The Chairperson: I become concerned when we have too many pieces of paper in front of us.

6976. I want to explain the items. At tab 4, item 1 of the black folder is the Department’s paper of 10 September on the employment schemes with the draft education employment scheme regulations attached. Those are the regulations with regard to the employment schemes. Tab 4, item 2, contains the Department of Education’s and the Department for Employment and Learning’s amendments, which were received on 10 September, with two new clauses to be inserted after clause 28 and amendments to clause 28 and schedule 7. Tab 4, item 3, contains the proposed amendments that the Committee received from the Department on 4 September. The Department has provided that in two formats: the first is a table format with a brief explanation of the amendment; the second format is the considered amendment format, which provides a full text of the proposed amendments, in particular for schedules 7 and 8. At tab 4, item 4, there is a briefing paper from Assembly research on the comparable issues from the Libraries Bill, the Health and Social Care (Reform) Bill and the Education Bill. Members will remember that they made inquiries on how those issues were dealt with in other Committees when Bills such as the Libraries Bill were being discussed. The briefing paper will be useful for providing context.

6977. Having identified those papers, I propose that we move to the scrutiny of clause 49. We will continue through to the end of the schedules considering the departmental amendments as we come to them, and then work through the remainder of the departmental amendments on clauses 1 to 23 and clause 28.

6978. I want to clarify that all new members have received the grey lever-arch file from last week’s meeting from the Committee Clerk. The appendices will be updated after today’s meeting. We need the Committee’s approval for those appendices to be brought up to date.

6979. Members indicated assent.

6980. The Chairperson: It just gives members more papers to read.

6981. Clause 49 —

6982. Mr B McCrea: Will you give me a chance to raise item B3 in the yellow folder?

6983. The Chairperson: Yes.

6984. Mr B McCrea: Will that be now, before we move on?

6985. The Chairperson: If you do not mind, we will move on. As a result of that item, certain issues will be raised during the clauses, and you can raise the issue then.

6986. Mr B McCrea: Judging from the list in annex A, I am concerned that there are not enough representatives from the controlled schools on the controlled schools sectoral body.

6987. It is important that we ensure that the controlled sector has effective representation. I am sorry, but the list is not effective representation. How were those people appointed? How should they be appointed? How we can ensure that a controlled-sector body develops? The controlled sector must have equal standing and representation with all the other sectoral bodies; that is fundamental. I am sure that you will agree, Chairman, that there are not many controlled schools on that list and that some names are missing.

6988. The Chairperson: The other concern is that there were five representatives of the South Eastern Education and Library Board (SEELB) at the first meeting but only one at the second meeting. I have grave concerns, and I echo the comments that have been made. We have to ensure that there is equality across all sectors, including the controlled sector. We have not seen any work emerging, and we have not seen any of the papers that have been provided for the working group.

6989. Mr Chris Stewart (Department of Education): I am happy to pass all those points on to the working group, but I draw the Committee’s attention to the fact that it is a controlled sector working group over which the Department has no control. We are there to assist and support the group in its work, but it is not for us to dictate what members the group should have or what papers it should consider.

6990. The Chairperson: You say that the group is representative of the controlled sector, but how does Dr Peter Shirlow from Queen’s University have an association with the controlled sector?

6991. Mr C Stewart: Dr Shirlow is a well-known researcher, particularly on the effects of conflict in urban communities. He will have a perspective on the role that education can play in community cohesion.

6992. Mr B McCrea: How would Michael Wardlow of the Northern Ireland Council for Integrated Education (NICIE) have a relevant view?

6993. Mr C Stewart: That is a matter for Mr Wardlow. He decided to go to the meeting, but I was not present. Michael would be best placed to describe the contribution that he will make.

6994. Mr B McCrea: Michael Wardlow is a good man, and I have no problem with his being at the meeting. However, in this case, we are trying to set up a body to look after the controlled sector rather than the integrated sector. We need to address the fact that the Bill disadvantages schools that are not part of a strong sectoral body. I raised that issue with you when we were considering other clauses.

6995. Mr C Stewart: I understand the member’s point, but I must clarify that the Department drew up the list of people who were invited to the first meeting having canvassed suggestions from various sources, including members. We made it clear that, thereafter, it is up to the group to decide who from the controlled sector takes part.

6996. The Chairperson: The difficulty is that the Department initiated its first meeting with regards the controlled sector in the first week of July 2009, two years after the review of public administration (RPA). Every other sector has a business case and has been able to get ahead. Indeed, one sector placed a newspaper advertisement seeking the chairperson of the sectoral body that will represent it.

6997. Mr C Stewart: The advertisement was for a chief executive, and that appointment has, indeed, been made.

6998. The Chairperson: The controlled sector body has had only two meetings and is being given little direction or substantial resource. The Committee agreed the principle that the controlled sector needs to ensure that it has all the necessary financial and structural elements to make the right decisions on the best body to serve its needs. That concern will have to be adequately addressed.

6999. Mr C Stewart: I understand that, and I reassure members that the Department will continue to support the group in its work and will move with the group at the pace at which it is capable of moving. There has been a third meeting. The group has asked us to provide it with assistance in the development of a business case to be submitted to the Department, and we have agreed to do that. We will commission the business case with either external or internal consultancy from DFP colleagues who have expertise in that area. We will underwrite the capacity that we provide, and we will work with the group to assist it in producing a business case for our consideration. The Department will not hold things back, but we must work with the sector at the pace at which the sector is capable of working.

7000. The Chairperson: The other problem is that working at the sector’s pace does not mean that that timetable can be reflected in our work on the Bill. The Bill has to be approved by 31 December for the establishment of the ESA on 1 January. If the sector is allowed to work at a snail’s pace, the Bill will go nowhere.

7001. Mr C Stewart: I am conscious of that concern. However, those are not matters for the Bill; they are not specific legislative requirements to provide sectoral support beyond the grant powers that already exist in legislation.

7002. Mr B McCrea: Schools that are part of sectoral bodies appear to have a different set of arrangements from schools that are not. We want to sort out the question of equality and fairness; it is not good enough for you to say that the Department is there to help if the sector wants to move forward. For some years, the problem has been that it has not been able to move forward. We must do something to help that body to come up with a representative stance. I want that point recorded in the minutes.

7003. Can we have a list of the attendees at the third meeting? That way we can see if there is continuity. It will be interesting to see if anybody has been to all three meetings.

7004. Mr C Stewart: A small group of perhaps half a dozen people is beginning to take a leadership role in the group. That group is beginning to adopt an informal committee structure to split the work among the larger group. It appears that Hugh McCarthy, the principal of Killicomaine Junior High School, is chairing the meetings at this stage.

7005. The Chairperson: We move to clause 49, “Catholic maintained schools". I refer members to paragraph 251 of the draft report and ask that they take a minute to remind themselves of the provisions of clause 49, which defines a Catholic maintained school.

7006. The Department now wishes to remove that clause from the Bill. Included in the Minister’s letter to the Committee of 17 June was the Department’s explanation that:

“The main purpose of the definition was the delineation of the group of schools for which the Council for Catholic Maintained Schools (CCMS) was responsible. With the demise of CCMS, the provision will no longer be required for that purpose, and there is no other policy reason for retaining the separation between these schools and other voluntary schools."

7007. On 4 September, the Committee received formal notice from the Department that when the question is put to the Assembly that clause 49 stand part of the Bill, the Minister will oppose it, as a separate approach to Catholic maintained schools is no longer required. Chris, do you have any comment on that?

7008. Mr C Stewart: In the beginning, as you rightly said, the reason for having a definition of Catholic maintained schools was that there were quite separate administrative arrangements for those schools. With the RPA coming on stream that will no longer be the case: a separate definition is not required. Members will see in the paperwork that there will, nevertheless, be a small number of references in legislation to Catholic schools. That is necessary; for example, to point consultation requirements to the right place so that we can identify who needs to be consulted on matters concerning those schools.

7009. In legislation there will be, if you like, a more local definition of Catholic schools. Quite simply, a Catholic school will be a school whose trustees are appointed by or on behalf of the Roman Catholic Church. Members may ask what the difference is, or think that we are simply swapping one definition for another. However, the definition in legislation is associated with quite separate administrative arrangements and a separate education system for Catholic maintained schools. The change is that we are now moving towards a single system that can support a diversity of school types. However, from time to time it will still be necessary to refer to those different school types.

7010. Mr D Bradley: Comhairle na Gaelscolaíochta (C na G) asked for an amendment to define Irish-medium education. Has any progress been made on that?

7011. Mr C Stewart: The Minister is not convinced of the need for a different definition for Irish-medium education. One already exists in legislation in the Education (Northern Ireland) Order 2006, which we think is sufficient for the purposes required.

7012. Mr B McCrea: Other schools are designated as grammar schools, integrated schools, and so on. C na G’s argument is that there is no designation for an Irish-medium school.

7013. Mr C Stewart: There is and there is not. It is perfectly possible for there to be an Irish-medium grammar school or an Irish-medium controlled school; in fact, I believe that there is one. The terminology is not mutually exclusive; there is potential overlap. In the early days of the RPA, there was an intention, wherever possible, to reduce the number of separate definitions and references and try to establish the holy grail of one school type. That has proved to be a much more ambitious task than we thought at the beginning.

7014. Although this Bill and the second Bill will make some progress towards that end, we are a long way from saying that there is one type of school. To reach that point, we would need to make many more changes to the detailed arrangements for governance and finance in the various types of school. Members will be aware that one problem with governance is that, in order to retain the role of the Transferor Representatives’ Council (TRC) and appoint governors to controlled schools, we need to leave the current governance provisions as they are. It is not possible to harmonise them at this point.

7015. Mr B McCrea: My understanding is that the issue is not only about governance — although that is important — but about area-based planning. If we accept that one size does not fit all, should we not designate schools in such a way that, when the Department is planning, it can determine whether there is sufficient availability of the various school types that we need? I suspect that that is why C na G is keen on designation. That has fundamental implications for other sectors that I am interested in, such as schools that were formerly voluntary grammars. Designation is critical.

7016. Mr C Stewart: I understand why many stakeholders might share that view, specifically in relation to Irish-medium schools. There is no particular difficulty, irrespective of the definition, in identifying whether a school is Irish-speaking or not. I know that C na G may have some concerns about the difference between an Irish-speaking school and an Irish-speaking unit in a school. Nevertheless, against a background of a sound existing definition and a clear recognition of what an Irish-speaking school is, we do not foresee any great difficulty in ensuring that the needs and preferences of young people and parents for an Irish-medium education are easily identifiable and properly addressed in area-based planning.

7017. Mr B McCrea: I am sure that they have no problem with the issue of units in schools. However, it is important, for equality reasons, that that is available to all other schools, such as schools that wish to designate as grammar schools or integrated schools. The interesting bit — perhaps this is not the appropriate clause to deal with it, but Dominic led on the issue — is that if area-based planning takes that direction, it is appropriate to stipulate the reason for including designations. If I understand correctly, you are saying that, largely, it is no longer necessary to designate maintained schools because all schools are now equal. A trajectory of travel away from the RPA suggests that we need an arrangement from one size fitting all to designated sectoral schools.

7018. Mr C Stewart: I understand your point. You might then say that an unintended benefit of our not removing all the other designations and definitions is that they remain in statute: “grammar school" and “integrated school" will continue to be defined formally. Indeed, all the types and sectors whose needs and views need to be considered, and which need to be able to take part in area planning, will, I think, be able to rely on clear designations and definitions in the legislation.

7019. Mr D Bradley: Comhairle na Gaelscolaíochta told the Committee that it is unhappy with the present definition of Irish-medium education, because it defines it by curriculum only. It sees it as important for the development of Irish-medium education, especially in collaboration with existing English-medium, that it be clearly defined.

7020. Comhairle na Gaelscolaíochta says that the current definition in the Education Reform (Northern Ireland) Order 1989 does not acknowledge that Irish is used as the everyday language of the school, nor does it acknowledge any other aspect of Irish-medium provision. It also says that there is no current definition except as directed by Department of Education policy as to what exactly constitutes an Irish-medium unit for the purpose of education Orders. Nor is there any legislative direction on how a unit should be established. Comhairle na Gaelscolaíochta says that that is in contrast to the 1989 Reform Order for integrated education.

7021. All other types of schools are defined in part 1 of the revised Education and Libraries (Northern Ireland) Order 1986. Therefore although the Department is inclined to dismiss Comhairle na Gaelscolaíochta’s request for clear definition, Comhairle has a very strong argument for having a clear definition where co-operation with English-medium schools by way of units and so on is pursued. There is a danger that conflicts can arise between the English-medium section and the Irish-medium section. In such circumstances, for example, it is important to have a clear definition of Irish-medium education, over and above the curriculum element.

7022. Mr C Stewart: First, I assure you that the Department would not dismiss any point put to it by any stakeholder; we may disagree with it, but we certainly would not dismiss it. We have considered C na G’s. arguments, but I disagree with it that it is a curricular definition; that is slightly misleading. The definition turns on the proportion of the curriculum that is taught in Irish. Therefore it is based on the form of education that is delivered in the school. We think that that is clear, and we would struggle to find an alternative definition that would meet the needs.

7023. Mr B McCrea: Why can you not simply designate people as they wish to be designated? When it comes to an issue about area-based planning, people get concerned about one sector taking resources away from another sector. If the Department was trying to remove ambiguity, it could simply define schools; other bodies have suggested that schools be designated Irish-medium or grammar, for example. Once a school has been designated, the Department can carry out the appropriate area-based planning.

7024. Mr C Stewart: That is one possible approach. However, it might attract the very danger that concerns C na G: 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 C na G’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 C na G that guarantee or reassurance.

7025. Mr B McCrea: Dominic is better at arguing for C na G 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.

7026. 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.

7027. 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.

7028. 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.

7029. Mr B McCrea: It is the task of the Department, or whatever designated body, to work that out. It must get a level of provision across the various parts of Northern Ireland that adequately meets the needs of the population. That is at the very core of area-based planning.

7030. It would be impossible to remove some of the variables, because, as you have just amply illustrated, there are so many. Would it not be better for the Department to define the broadly recognised sectoral interests and the type of education that they provide? That would give a tighter list of parameters on which to base area-based planning, and it would go a long way towards reassuring all the disparate sectoral bodies, including C na G .

7031. Mr C Stewart: That is exactly the balance that we are seeking to strike. Left to our own devices, the solution that the bureaucrats might come up with would be much simpler, with one type of school and a very simple set of administrative arrangements.

7032. Mr B McCrea: Just one school, in fact.

7033. Mr C Stewart: Indeed, perhaps just one school, and it would be very easy to work out the administrative arrangements.

7034. Mr B McCrea: Perhaps in Templepatrick, to go along with the one police station that is left.

7035. Mr C Stewart: I will not comment on that matter.

7036. The Department has listened very carefully to what those in education have told us, and their view was that it was neither practical nor desirable to go as far in that direction as we might otherwise have done. A range of issues comes to the fore, not least of which is the need for the Department to recognise the ethos of the various types of schools, how they want and expect to see that reflected in their identity, the way that they deliver education on a daily basis and the way that they are referred to in legislation.

7037. Therefore, we have had to reach a compromise or balanced position. The matter is not as neat, simple or straightforward as we would have liked. We may not always have been able to accommodate all the concerns or desires of stakeholders, but we feel that a balance has been struck that gives us a better and deliverable system.

7038. Mr Lunn: Not for the first time, I am listening to the discussion and not fully understanding it. Could you explain to me in nice, simple terms what the danger is in allowing C na G to have its own designation? What is the problem? It is a bit like the issue of school enrolment that the Committee talked about last week, whereby 198 pupils were satisfied and two were disappointed.

7039. Mr C Stewart: There is no danger from the Department’s perspective. The suggestion that Basil made would mean the Department adopting a definition similar to that of Catholic maintained schools, which is quite simply a school that is on the list of Catholic maintained schools. We could also adopt the same approach for Irish-medium schools, and it would be administratively very simple for the Department and the ESA. However, I suspect that C na G would object to that approach, because its fear is that a school could become Irish-medium in name only. It might appear on that list, but it would be open to the board of governors to depart from the purity of the immersion education model while retaining the designation of Irish-medium school.

7040. Mr Lunn: I am really glad that I asked that question. [Laughter.]

7041. Mr C Stewart: If my explanation was oversimplified, I would be glad to elaborate.

7042. The Chairperson: As regards the issue that Basil raised, individual Members and their parties will have the opportunity to agree or disagree on whether that particular amendment stands or is removed. That decision will be made no later than next week. If an amendment is required, it can be tabled in the Assembly. However, obviously, there is concern. There is no consensus on the merits of removing clause 49. Correct?

7043. 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?

7044. Mr C Stewart: Yes. It is ongoing on one particular issue. The other issues are reflected in amendments that have been brought forward. The Minister is still considering that issue, which is a request by C na G for a statutory duty on the boards of governors of Irish-medium schools to maintain their Irish-medium status or designation, as it were, which relates to the very point that we have just discussed.

7045. It arises from a concern on C na G’s part that some schools in the Irish-medium sector would depart from what is recognised as the effective approach to Irish-medium education. Therefore, it wants a duty that parallels that which is placed on governors of integrated schools, who are required to use their best endeavours to ensure that those schools remain integrated. C na G wants there to be a similar, corresponding requirement on Irish-medium schools. The Minister is considering it.

7046. Mr D Bradley: The other issues have been addressed?

7047. Mr C Stewart: Yes. We have not said yes to them all. The Minister has indicated those with which she agrees, and those with which she does not agree.

7048. Mr B McCrea: The point that has just been raised clarifies the position about which, as you said earlier, C na G might be worried. If the two matters are brought together, and there is a designation and “best endeavours" clause — or you define what it is — I expect that C na G’s concerns will be met.

7049. Mr C Stewart: Yes. That is a fair point.

7050. Mr B McCrea: It is possible that such an approach could also be used for other sectors, such as the integrated and voluntary grammar sectors. The point that I am making is that most schools fear the diminution of their ethos. I am simply saying that if there is a way to give reassurance on that, I believe that it would be easier to move forward.

7051. Mr C Stewart: Again, I concur with the point that you make. However, I will tread carefully as I reflect on what its implications might be for other sectors. Such an approach is relatively straightforward for an integrated school where the definition is relatively straightforward. It is certainly feasible for Irish-medium education. Where is becomes slightly more difficult is in the realm of faith-based education, such as Catholic education. Where it becomes difficult and, perhaps, even controversial is when it comes to grammar schools. The duty to ensure that a grammar school maintains its status as such might take us into territory around post-primary transfer that is occasionally controversial, and to which I will hesitate to go today.

7052. Mr B McCrea: I appreciate that, but you understand the argument.

7053. Mr C Stewart: I do.

7054. Mr B McCrea: It is an argument that is as good for Irish-medium schools as it is for those of other sectors. Anyway, the point of the session is to raise such an issue, so that you can consider it. It will certainly have an impact.

7055. The Chairperson: I want to raise an issue that comes up continually. It is now critical. At what stage, Chris, will we get a definitive response from the Minister on some of those matters? In the past, accusations of delay have been made. We have been accused of unduly delaying progress because we asked for an extension of Committee Stage. Had the Committee not been granted that extension of its scrutiny of the Bill, I doubt if some of those issues would be resolved by now anyway, because we are still waiting on responses. You have highlighted one such issue: we are still waiting on the DEL amendments. We are also waiting on the amendments from the National Society for the Prevention of Cruelty to Children (NSPCC). We do not have a lot of time, because the Committee has to report to the House by 30 September. In fact, the report has to be printed by 30 September.

7056. Mr C Stewart: I appreciate that. The DEL and NSPCC suggested amendments arose relatively late in the day and at the tail end of the Committee’s considerations of these matters. Issues around definitions of schools and school types have been debated at length in Committee meetings and with stakeholders; they are not particularly new issues. The Minister’s position on them is clear. In the papers that she has sent to the Committee, she has indicated what she proposes to do at this stage in relation to the definition of schools.

7057. Mr D Bradley: You may correct me if I am wrong, but only one of the amendments requested by Comhairle na Gaelscolaíochta — the amendment to clause 2(4), placing a duty on the ESA to encourage and facilitate Irish-medium education — has been included in the grid that you gave us.

7058. Mr C Stewart: There is a further amendment to clause 26.

7059. Mr D Bradley: That relates only to the curriculum and examinations.

7060. Mr C Stewart: Yes, but they are the two major issues that C na G asked us to consider.

7061. The Chairperson: We will come back to them later.

7062. Mr D Bradley: I would not consider them to be the two major issues. One of them might be major, but there were a few other requests. Are we to assume that they have been denied?

7063. Mr C Stewart: Yes. I understood that we had copied to the Committee the Minister’s reply to C na G. That would have been some months ago.

7064. The Chairperson: Yes, because I think that you made reference to it last week. The Hansard report of last week’s meeting mentions the Minister’s letter of 17 June.

7065. Mr C Stewart: There was a specific reply on the C na G issue. Dominic had kindly forwarded the letter to us, and I understood that the reply was copied to Committee members at the time.

7066. The Committee Clerk: Is there a date to that?

7067. Mr C Stewart: I will check that, John, and come back to you.

7068. The Committee Clerk: Please provide an extra copy as well.

7069. The Chairperson: Will you clarify the status of the proposed departmental amendments that have been agreed by the Minister with regard to Executive endorsement? Have they been copied to the Executive members by the Minister? They stand as proposed amendments until their fate is decided in the Assembly.

7070. 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.

7071. We have a delicate path to tread with regard to timing, but it is the Minister’s intention to present the amendments for Executive consideration, as set out in the Office of the First Minister and deputy First Minister’s guidance.

7072. The Chairperson: It is an Executive Bill, so it would be an issue if one Minister did not feel that it was appropriate to send the amendments to the Executive.

7073. Mr C Stewart: It is the Minister’s intention to send the amendments to the Executive. The Executive will want to consider amendments that have been put forward by other Ministers. The Minister for Employment and Learning has requested a series of amendments to the Bill.

7074. The Chairperson: Again, we are tied for time.

7075. Mr C Stewart: It is difficult. If one looks at the orthodoxy of the guidance on legislation, one might argue that it is impossible to seek Executive endorsement between the end of Committee Stage and Consideration Stage. That is why the Minister wants to go early. Our advice from the legislative secretariat is that the Executive are not asked to consider amendments to the majority of Bills until after Committee Stage.

7076. The Chairperson: We move on now to the supplementary clauses, which are clauses 50 to 55. Clause 50 deals with supplementary, incidental, consequential and transitional provisions. Clause 51 deals with regulations and Orders.

7077. Clause 50 allows the Department to make, by Order, such supplementary, incidental, consequential and transitional or saving provisions — that was a mouthful — as it considers appropriate to give full effect to the legislation. On 18 February 2009, officials advised the Committee that that provision is included to enable the Department in case it is discovered that a mistake was made in the drafting of the Bill. The provision allows that mistake to be corrected quickly. In response to clause 50, the South Eastern Education and Library Board (SEELB) commented:

“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."

7078. 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."

7079. 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."

7080. 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?

7081. Mr C Stewart: As we said, the Minister would welcome the Committee’s views on that. I do not think that she has a particularly strong or absolutely fixed view on that. However, the Department is not convinced by the arguments put forward for the need for a legislative requirement for consultation. Of course, such consultation will take place when it is practicable and necessary to do so. However, the example that we gave last week of where such powers are used illustrates that consultation may not be as much of an issue as some consider it to be. In the Special Educational Needs and Disability (Northern Ireland) Order 2005, a similar provision was used to correct a spelling mistake. I doubt that the Committee would expect us to consult stakeholders on making such a correction.

7082. The Chairperson: Do members have any comments?

7083. Mr Lunn: The only point that I note is that the South Eastern Education and Library Board is the only body to raise a concern. The Southern Education and Library Board simply noted the fact, and no one else commented. What is the big deal? If it were a serious issue, we would have had a stronger reaction. The explanation given by the Department is that the provision is intended simply to provide grace should we discover that we have made a mistake, which will probably be the case.

7084. Mr C Stewart: I know that it is a terrifying prospect that the Department might get something wrong, but the theoretical possibility exists.

7085. Mr Lunn: Clause 51(3) states that no Order can be made unless it is laid before and approved by a resolution of the Assembly. I would have thought that that was a fair guarantee, and I see no reason that, should a moderately serious issue arise, the Department would not wish to consult on it.

7086. Mr C Stewart: That is correct, and it is important also to bear in mind that the purpose of the provision, as set out in the clause, is not simply to allow the Department to tinker with the law because it feels like it, rather it is to give effect to the substantive provisions in the Bill. It is, therefore, an Order to correct a mistake where a failure to do so would not be giving effect to the will of the Assembly in passing the legislation. It is not simply because we may come up with nice ideas of how to change the law.

7087. Mr B McCrea: Your example was one of tidying up the legislation by correcting a spelling mistake, and no one would have an issue with that. The grey area is when any change is slightly more serious. The legal profession determines that the law is as it was written. The problem arises when one uses such provisions to do slightly more than fix spelling mistakes.

7088. Mr C Stewart: That is where the Assembly control mechanism comes into play. Although I have stated that the circumstances in which we might use such a power are strictly limited to giving effect to the Bill, it is, nevertheless, a serious matter to change primary legislation, and that should not be done without the consent of the Assembly.

7089. Mr B McCrea: We have talked about clause 51 and about the regulations that it provides for being subject to negative resolution procedure. Although we understand that it is a more efficient way of dealing with matters, negative resolution procedure, if combined with the need for cross-community support, does have an implication as to whether one can or cannot do something. Are we on clause 51? Although not everything has to be subject to affirmative resolution procedure, we will be looking at certain key areas that we feel should be — unless we can be convinced otherwise.

7090. Mr C Stewart: That is a fair point, but it is not one on which it would be appropriate for me to take any stance. The draftsman has drafted the legislation in the normal way. If the Committee or the Assembly feel that a different approach is appropriate for particular provisions, then that is a matter for the Committee and the Assembly to decide on.

7091. Mr B McCrea: In the past, you said that although there are comparisons with the health RPA legislation and so on, education is — if I can use the pun — a law unto itself. However, there are different implications because of the nature of the Education Bill. I know that you can get advice that says that, under normal legislative conditions, negative resolution procedure might be the way to do things. However, I want to put on record my belief that because many of those issues are contentious, they must be dealt through the affirmative resolution procedure, if we are planning to change.

7092. Mr Lunn: When clauses 50 and 51 are read together, you can almost see a contradiction. Having said that, I did not see a problem with clause 50. However, clause 51(1) states:

“Regulations under this Act shall be subject to negative resolution."

7093. Clause 51(3) states:

“No order shall be made under section 50(1) unless a draft of the order has been laid before, and approved by resolution of, the Assembly."

7094. Are regulations and Orders different?

7095. Mr C Stewart: Yes, they are, and they are for different purposes.

7096. Mr Lunn: Can you explain that to me in simple terms?

7097. Mr C Stewart: I could attempt to explain it to you in simple terms, but I would undoubtedly fail. However, I refer the Committee to two papers that were prepared some time ago — one that I produced and one that the Committee Clerk produced — and which explain the different forms of subordinate legislation and the different forms of Assembly control. Rather than weary the Committee with a further explanation of it now, would it be helpful if we were to resurrect those papers?

7098. The Committee Clerk: Those papers were provided on 19 February, when there was a Committee session and discussion on the merits of negative and affirmative resolution.

7099. Mr C Stewart: There is scope for a PhD in explaining the differences between Orders and regulations.

7100. The Chairperson: Another issue is involved, because this is all linked to clause 12. We cannot read clauses 50 and 51 without referring to clause 12. At some stage, members discussed whether the Orders mentioned in clause 12 should be subject to the same control as those mentioned in clause 50. The affirmative resolution procedure will apply to clause 50, whereas the negative resolution procedure will apply to clause 51.

7101. 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.

7102. 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."

7103. 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."

7104. 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.

7105. Mr C Stewart: Only in relation to employment law.

7106. 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?

7107. Mr C Stewart: I am not convinced that the implications would be particularly profound. The letter indicates that the Minister is not convinced, at this point, of the need for such amendments. However, if the Committee has a strong view that those amendments are required, the Minister will, of course, want to consider that.

7108. I do not think that the amendment would make a huge difference. This is not — if members fear that it is — an opportunity for the Department to exercise some sort of untrammelled power over primary legislation. Controls and checks and balances are in place. The point of the provisions is not to thwart or subvert the settled will of the Assembly; rather it is to ensure that we are in a position to give effect to the settled will of the Assembly. It is in case we overlook something, get something wrong or find that we need to do something else to give effect to what has been endorsed by the Assembly. These are standard mechanisms to allow us to do that. However, if members have a particular concern, I am sure that the Minister will want to give careful consideration to that.

7109. The Chairperson: The officials were asked to consider an amendment on this issue after last week’s meeting.

7110. Mr C Stewart: If I may put it bluntly; you have not yet convinced the Minister.

7111. The Chairperson: Her response in the letter indicates that. Bearing in mind the deadline, and given the concerns and last week’s discussion, does the Committee think that we should ask the Clerk and his staff to draft an amendment to this clause?

7112. Mr B McCrea: I would be happy to propose that.

7113. Mr O’Dowd: Is it a proposed amendment?

7114. The Chairperson: No. I asked whether the Committee should ask the Clerk to draw up an amendment for us to consider, and then it would be up to the Committee to decide whether to adopt it.

7115. The Committee Clerk: Just to clarify, that is in relation to an affirmative resolution for clause 12(1). Are we also saying that clause 51 should have some consultation requirements? That was the other proposal that the Committee put to officials last week. This response from yesterday evening says no to that.

7116. The Chairperson: In the Committee’s opinion, that is a higher standard to meet than a consultation requirement. Therefore, is consultation necessary?

7117. The Committee Clerk: Draft affirmative resolution involves the House; it imposes no obligation to consult stakeholders. The obligation to consult stakeholders in the education field is when the Department speaks to stakeholders. If I am correct, all that the Department would have to do is bring the regulation to the House; it does not need to speak to stakeholders on a draft affirmative resolution.

7118. Mr C Stewart: That is correct; however, we are pointing out the incongruity of having to consult stakeholders about a proposal to give effect to the will of the Assembly. You would be asking stakeholders whether they agree with the Assembly.

7119. Mr B McCrea: I agree. If we opt for a draft affirmative resolution, we do not need to consult. We need to consult only on clause 12.

7120. The Chairperson: Are we clear on that? As clear, I suppose, as we can ever be. Before we move on to clause 52, I would like clarity on what is meant by “stakeholders" when speaking about consultation on employment regulations.

7121. Mr C Stewart: Consultations have taken place with the Catholic trustees specifically on the employment regulations. Consultations have taken place with other stakeholders on a more general level about the approach that the Department might take to regulating schemes of employment.

7122. The Chairperson: What is the difference between a more general level and having consultations with the Catholic trustees? Did you consult with the stakeholders who raised issues about employment regulations?

7123. Mr C Stewart: There has not been a general consultation with all stakeholders on the issue. The concerns were raised by two sets of stakeholders: the Catholic trustees; and the Governing Bodies Association (GBA). The GBA, as you know, has declined to meet us.

7124. The Chairperson: On that issue?

7125. Mr C Stewart: On any issue.

7126. The Chairperson: Did the Department write to the GBA to ask for its concerns about the employment regulations?

7127. Mr C Stewart: No, we have not specifically done that. The GBA, as you might recall, was asked in the Committee whether it would be prepared to discuss those matters with officials, and it declined to do so. Our door, of course, remains open to it at any stage.

7128. The Chairperson: OK, let us move to clause 52, “Interpretation", which contains definitions of terms that are used in the Bill. I refer members to paragraph 233 of the draft report, which relates to clause 52 and where the comment of the Western Education and Library Board is noted:

“It is very unfortunate that the Department has not taken this opportunity to introduce a new consolidated Education Bill embracing all of the legislation which has been introduced since 1986 in a systematic format."

7129. That, I assume, refers to the 11 pieces of subordinate legislation.

7130. Mr C Stewart: That is a comment that could be made only by someone who has never had any involvement in drafting legislation.

7131. The Chairperson: The Department’s written response is sympathetic to the Western Board’s concerns:

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

7132. Mr C Stewart: Precisely; one does not try to hit a moving target.

7133. The Chairperson: As the draft report notes, that issue was already raised by a member of the Committee on 18 February 2009.

7134. 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.’"

7135. 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.

7136. 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?

7137. 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.

7138. 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.

7139. The Chairperson: Do members have a view on whether the Department should consider consolidation at some stage?

7140. 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.

7141. Mr C Stewart: You are right; we would have to do it in that way. In this legislation, we are taking significant parts out of the oldest piece of legislation, the Education and Libraries (Northern Ireland) Order 1986. The second RPA Bill will continue that process and will also affect the Education Reform (Northern Ireland) Order 1989. Those would be the first targets in attempting a radical overhaul of the legislation.

7142. It is perhaps fair to say that the task is difficult because the Department has allowed it to become difficult. We put more and more legislation into the cupboard, but we should have cleared out the cupboard much earlier. It is very difficult to bring 11 Orders together now. Nineteen eighty-nine or 1990 might have been the opportune time, although I am sure that there are reasons why the Department did not, or was unable, to consolidate at that point. However, the longer the matter is left, the harder it becomes.

7143. Mr Lunn: We seem to be moving house now rather than just emptying the cupboards.

7144. Mr C Stewart: That is true.

7145. The Chairperson: The problem is that people are always worried that there is another cupboard somewhere that they are not aware of, but which the Department is aware of. [Laughter.]

7146. Mr C Stewart: Indeed, that proved to be the case when the Committee secretariat uncovered a small cupboard that had passed beyond our recollection.

7147. The Chairperson: And of course we have article 101, which is always with us and lurking in the background.

7148. Mr C Stewart: The other issue is one of resource. I would not expect the Committee to have too much sympathy with the hard-pressed Civil Service, but most of the legislative resource that the Department has available is before the Committee today.

7149. The Chairperson: With respect to resources, does the Department have a tracked version of the changes to the Education Bill with the amendments annotated on it? That would be useful, as it would provide a tracked change of what has taken place with the Bill, and would mean that the Committee has the Bill as presented to it as well as the list of amendments.

7150. Mr C Stewart: It does not. It could attempt to provide one, but it would be risky. Transposing the changes into the Bill would have to be done very carefully, as errors could easily creep in.

7151. The Chairperson: Would it be impossible to produce it?

7152. Mr C Stewart: It would not be impossible, and if the Committee would find it helpful, the Department would certainly endeavour to compile such a document.

7153. The Chairperson: Would members find that helpful?

7154. Mr O’Dowd: I suppose that it would be helpful. However, the amount of work that such a document would involve might interfere with the Committee’s timescales.

7155. Mr C Stewart: I am glad that a member raised that, but that was what I was alluding to.

7156. Mr B McCrea: That suggestion came from the teacher’s pet over there.

7157. The Chairperson: Given the fact that the Department is working through a piece of legislation, would it not be procedure to have such a document?

7158. Mr C Stewart: Not that I am aware of, not least because the Committee or individual members may wish to propose their own amendments or amendments to amendments. The Executive consideration could produce further changes, and the Department could end up producing umpteen different versions for the Committee to keep track of.

7159. Mr Lunn: I am sure that Chris must leave here sometimes and go home and kick the cat. [Laughter.]

7160. Mr C Stewart: I am not allowed to have a cat for that very reason. [Laughter.]

7161. Mr Lunn: The Committee seems to be piling more and more work on him.

7162. What the Chairperson suggests sounds terrific in theory, but in practice I am sure that it is something that Chris could do without.

7163. Mr C Stewart: It is perhaps best if I do not respond to that.

7164. Mr Lunn: I said it for you.

7165. The Chairperson: The Committee has already received documents indicating that changes will take place. However, let us move on.

7166. 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?

7167. Mr Lunn: None. Agreed. Move on.

7168. The Chairperson: At least we have some agreement on minor and consequential amendments. Chris, do you have any comment?

7169. Mr C Stewart: No. It is the most straightforward of straightforward provisions. You will not see a Bill without a similar provision.

7170. 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.

7171. Do you have any comment to make on that, Chris?

7172. Mr C Stewart: That is a very accurate description of the approach behind the commencement of the Bill.

7173. Mr B McCrea: Clause 54(2) states that:

“the Department may by order".

7174. Is that Order subject to affirmative or negative resolution?

7175. Mr C Stewart: Commencement Orders are not normally subject to any form of Assembly control; they are administrative arrangements. When the Assembly passes a piece of legislation, it is not merely giving us permission to implement it; it is telling us to get on with it. When the Assembly makes its decision, it expects the Department to respond with alacrity and get the commencement Orders made.

7176. Mr B McCrea: You said “not normally", but the Department would get on with it as and when it sees fit.

7177. Mr C Stewart: As and when the Assembly sees fit.

7178. Mr B McCrea: As I understand it, the synchronisation of the second Bill and whatnot is for you, so it will be the Department that sees fit when the commencement Order is ready to go.

7179. Mr C Stewart: It is the Department that makes the decision as to when to make a commencement Order, but that is not a matter in which we have complete discretion. We have to be mindful of the fact that if the Assembly passes a piece of legislation, there is an expectation that we will implement it at the earliest possible date. I cannot remember the exact circumstances of such cases, but there is a body of case law on instances in which, for no good reason, as the courts thought, a Department sought to delay the commencement of a piece of legislation, but such a delay was found to be improper.

7180. Mr B McCrea: I am checking the procedural possibilities. As it stands, it is automatic that the Department decides when to go. If the Assembly wanted to take a view on it, it would have to propose an amendment.

7181. Mr C Stewart: That is correct.

7182. The Chairperson: The Department is proposing an amendment to clause 54, which relates to clause 29 and schedule 6 in relation to the General Teaching Council.

7183. Mr C Stewart: Those are the additional powers for the General Teaching Council. The original proposal was that those would be introduced by commencement Order, but the advice from the General Teaching Council, which the Minister has accepted, is that there is an urgent need to bring those provisions into effect as quickly as possible — the earliest possible date being the date on which Royal Assent is received.

7184. The Chairperson: That explains why the Department wishes to amend clause 54.

7185. Mr C Stewart: That is correct.

7186. The Chairperson: Are members content with clause 55, “Short title", or do they want something more complicated?

7187. Mr Lunn: Why does it say that this Act “may" be cited instead of “shall" be? Is there a legal reason?

7188. Mr C Stewart: It is the way he normally does these things. The Interpretation Act (Northern Ireland) 1954 contains an explanation of the different uses of “may" and “shall".

7189. Mr Lunn: Can we have a 50-page report on that?

7190. Mr C Stewart: If you insist. I would struggle to keep it down to 50 pages, but we will do our best.

7191. Mr B McCrea: When were those uses defined?

7192. Mr C Stewart: It was defined in the Interpretation Act (Northern Ireland) 1954.

7193. The Chairperson: Earlier, you referred to the legislation governing the funding arrangements for schools, which will be revisited when the Department reviews the common funding formula. Surely that would be an element of the legislation that governs how the Department pays education and library boards — as they were then — which, subsequently, pass the money on to schools.

7194. Mr C Stewart: 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.

7195. 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.

7196. The Chairperson: We will move on to the schedules. We plan to conclude our clause-by-clause scrutiny so that we can consider the Department’s amendments. The plan is that we will break for lunch at 12.30 pm, and reconvene at 1.00 pm.

7197. The Committee considered all the provisions of schedule 1, “The education and skills authority", along with clause 1. The Committee’s consideration to date is recorded in paragraph 26 onward of the draft report. Schedule 2 is the transfer to the education and skills authority of staff employed by boards of governors. At its meeting on 4 March 2009, the Committee received a written and oral briefing from officials on schedules 1 to 5. If members wish to remind themselves of that briefing, copies are available from the Committee staff. We are at paragraph 273 of the draft report, which notes the comments of the South Eastern Education and Library Board and the Department’s subsequent response. Are there any comments on schedule 1 or schedule 2?

7198. Mr B McCrea: We have already discussed schedule 2.

7199. The Chairperson: The briefing paper is available if members want to remind themselves of what was said.

7200. Schedule 3 is the “Transfer of assets, liability and staff of dissolved bodies". Remember, the draft report is exactly that: a draft report of what will be approved by the Committee to go to debate in the Assembly. Schedule 3 is covered from paragraph 276 onwards. Members will see that paragraphs 277 and 278 of the draft report set out some of the issues that the Committee raised with officials, particularly the costs involved and the tax positions arising from those transfers.

7201. Chris, is there any update on stamp duty, VAT and land registry fees?

7202. Mr C Stewart: There is, Chairman. I look to my colleague to keep me correct on the detail because she has been pursuing it. In essence, there is not a problem. We explored it with our colleagues in the Department of Finance and Personnel and the Treasury and found that no issue of tax liability arises. I think that one area where we still need absolute confirmation is corporation tax.

7203. Ms E Stewart (Department of Education): We have been advised by one area of HM Revenue and Customs that the ESA should not be subject to corporation tax. However, HMRC wants to check that out with its policy and legal people, and we are waiting for them to come back to us on that.

7204. Mr C Stewart: At this stage, we are satisfied that there are no difficulties in the pipeline.

7205. The Chairperson: In February, Chris, I think, assured the Committee that he was talking to colleagues in the Department of Finance and Personnel and the Treasury to minimise the effect that the transfer of assets has on the Department’s budget and on the public purse.

7206. Mr C Stewart: That remains the case.

7207. The Chairperson: Have we any ideas when we will have clarification from HMRC?

7208. Ms E Stewart: We are awaiting a response. Informally, one side of HMRC told us that it does not think that there is a problem. However, HMRC wants to get confirmation of that from its policy side and its legal people.

7209. Mr B McCrea: Given the expenses scandal, it would be very embarrassing if we got caught in capital gains avoidance.

7210. Mr C Stewart: We will endeavour to avoid that.

7211. Mr B McCrea: I am just trying to look after my colleagues.

7212. Mr C Stewart: Colleagues in Departments and agencies were sympathetic to our desire to ensure that we do not adversely affect the education budget by what would amount to no more than circular transitions of public money between one public authority and another, and they reassured us that that is not the effect of the legislation.

7213. The Chairperson: Could we have something from the Department on that? Given that that was a major concern of the Committee’s, we want to be satisfied that if an embarrassment or difficulty arose, it could be included in our report.

7214. Mr C Stewart: We will give you a short note in the next day or two on VAT, stamp duty and stamp duty land tax. As soon as we get the final confirmation on corporation tax we will give that to the Committee as well.

7215. The Chairperson: Paragraph 280 of the draft report deals with the proposed departmental amendments to schedule 3, which the Committee received on 4 September. At paragraph 281 the Department proposes that paragraph 2(3)(b) of schedule 3 be omitted since it is no longer necessary as:

“these assets and/or liabilities have already transferred to the new Libraries Authority"

7216. Mr C Stewart: It is simply a bit of tidying up at the suggestion of the Office of the Legislative Counsel, who advised that the provision is no longer required.

7217. The Chairperson: Paragraph 5 of schedule 3 is to be replaced in order to make an amendment to arrangements for the education and skills authority’s procedure with regard to reporting on the first set accounts following advice from DFP.

7218. Mr C Stewart: That is correct, Chairman. It is a very technical part of the Bill. In essence, the provisions that we originally asked to be drafted were more onerous than they needed to be with regard to complying with the normal rules set by DFP for those matters. DFP drew that to our attention and the Office of the Legislative Counsel has drafted an amendment, which will place slightly less onerous requirements on the ESA, but ones that still comply fully with what DFP expects on reporting requirements.

7219. The Chairperson: There is the issue of the Comptroller and Auditor General.

7220. Mr C Stewart: That, if I recall correctly, is the crux of the change. We had asked for the particular involvement of the Comptroller and Auditor General, which is not required under the rules on Government accounting. We had gone too far.

7221. 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.

7222. 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))"

7223. Clause 49(5) defines the “relevant church authorities" as the Roman Catholic Archbishop of Armagh, the Roman Catholic Bishop of Clougher, and so on. Is that a legal or technical point that is required?

7224. Mr C Stewart: The definition of relevant Church authorities?

7225. The Chairperson: Yes.

7226. Mr C Stewart: Yes, it is. It is simply to identify the Roman Catholic Church. I will remind members of the rationale for the schedule. Unlike the other dissolved bodies, some of the assets of CCMS were not publicly funded. They were provided by the Church, and, on the dissolution of the body, ought to return to the Church.

The schedule provides a mechanism by which to do so. It has been constructed in such a way that assets that ought to be returned to the Church will be identified and returned before the appointed day. Anything that is not returned to the Church goes automatically to the ESA.

7227. The Chairperson: Has an audit of those assets been carried out?

7228. Mr C Stewart: At present, that work is ongoing.

7229. The Chairperson: I have always made the point — which has also been raised by other members — that every sector receives public money. The bottom line is that regardless of whether schools are maintained, controlled, voluntary grammar, or whatever, they have received a substantial amount of public money. In fact, none of them would exist if public money had not been poured into them.

7230. There is the issue of the capital grants that were awarded. Some time ago, we discussed how, after a particular point in time — 1972 — that money became, basically, unrecoverable. Therefore, if a school received money, which it paid into a particular asset, that asset, despite its being paid for by public money, is now owned by a private body. In this case, it belongs to the trustees. I have never been satisfied that that was good practice, irrespective of who has been the recipient.

7231. Mr C Stewart: Let me offer some reassurance. The focus of those particular provisions is not schools or capital grants to schools: it is the office accommodation of CCMS. The net effect of all those proposals is as follows: CCMS assets that were publicly funded will transfer to the ESA; CCMS assets that were funded by the Church will return to the Church.

7232. The Chairperson: At some stage, will we see a list of those assets and how that has been broken down?

7233. Mr C Stewart: Yes. I am sure that we could prevail upon colleagues to provide that for the Committee.

7234. 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.

7235. 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.

7236. In that context, C na G 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.

7237. Mr C Stewart: The position remains as advised in that correspondence, Chairman. C na G 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.

7238. 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 C na G wants, in the way that it has asked, the net result would be a significant delay in the legislation.

7239. However, we can give effect to the request administratively. It is the case that a C na G 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.

7240. 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.

7241. 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.

7242. 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."

7243. On 4 September 2009, the Committee received detailed and specific wording of the Department’s proposed amendment to schedule 7 in the table of amendments. The accompanying explanation states:

“The most significant amendments relate to an amendment to the Education Order 1997 to place a duty on the ESA to appoint Exceptional Circumstances Tribunals to consider appeals from parents regarding admission to secondary school for their children."

7244. There is a consultation paper in members’ information packs entitled ‘The School Admissions (Exceptional Circumstances) Regulations (NI) 2010’. Could you take a minute or two, Chris, to expand on that particular amendment? It causes some concern.

7245. Mr C Stewart: I am conscious that it takes us into the area of post-primary transfer, which, from time to time, can be controversial, but there is no change in policy behind this. It is not proposed to change how the procedures that are allowed for in the provisions of the 2006 Order operate. The effect of the amendment proposed here is simply to place the function on the ESA. The 2006 Order set out the functions that were to be carried out, and envisaged that a body, without specifying what that body would be, would be established to take those functions forward. In keeping with the RPA policy, the Minister’s view is that the ESA ought to be the body that carries out those functions, and that would be the effect of the amendment. However, the procedures, and the policy behind them, would not change as a result of that.

7246. The Chairperson: Any comments, members? The document, ‘The School Admissions (Exceptional Circumstances) Regulations (NI) 2010’ is in members’ yellow pack. There used to be yellow packs in a particular supermarket, if I remember rightly. Will that document go out for consultation?

7247. Ms E Stewart: Yes, I understand that it is going out for consultation.

7248. The Chairperson: How, therefore, do we end up in a situation whereby we have a Bill going through the House, an amendment is tabled by the Department, and we end up going out to public consultation on an element of that Bill? How can that be? Who is in control of what goes on here?

7249. Mr C Stewart: I can answer that: it is the Minister.

7250. The Chairperson: Well, that is what would cause the concern about the way in which this is being done. I have never seen that done before.

7251. Mr C Stewart: Just to put your mind at rest, the consultation will not be on the Bill but on the regulations that will be made under the new power to be introduced by an amendment to the Bill.

7252. The Chairperson: But if the new power is not brought into place — that is, if the Bill is not endorsed — how can you go out to public consultation on regulations?

7253. Mr C Stewart: If, for whatever reason, the Assembly rejected the amendment, then we would certainly have wasted time and effort in consulting on regulations that we would not be in a position to make. However, in order to get to the point where we have effective arrangements in place at the earliest possible date, we have sought to give the Committee the earliest possible sight of the approach that it is intended to take in the regulations. Yes, it could be argued that we are getting things somewhat out of sequence in showing you the wording of regulations when there is not currently a power to make those regulations, but, of course, that is the very approach that the Committee encouraged us to take in relation to employment matters under the Bill.

7254. The Chairperson: With the greatest respect, it is the earliest possible sight and it is as close as the iceberg was to the Titanic — and we know what happened with that one. Members have just now had sight of the document, and that is the difficulty. The first that I saw of the draft report was when I got the folder this morning. We had no idea about it. Obviously, we are going to have to go through that. Do we know when the regulations will be put out to consultation?

7255. Mr C Stewart: I will have to check on that and come back to you.

7256. The Committee Clerk: The documents say that the consultation ends at the end of October. Earlier, the Committee agreed that it would analyse the outcome of the consultation vis-à-vis the Minister. At that stage, if it so desires, the Committee can receive a presentation.

7257. The Chairperson: Do members have any comments?

7258. Mr B McCrea: Only to say that I share your discomfort, Chairperson.

7259. Mr C Stewart: If members feel that the Department is somehow trying to run away with the game, let me reassure the Committee that it is being given early sight of the draft regulations and that the regulations will not be made until or unless the Assembly approves the power to make them.

7260. The Chairperson: I accept that.

7261. The Committee Clerk: In the bundle of papers, it says that the regulations will be made the day after the Bill becomes law. That is the vision.

7262. Mr C Stewart: They will certainly not be made the day before.

7263. Mr B McCrea: What is the implication if the regulations are not made at that time?

7264. Mr C Stewart: If the regulations are not made at that time there will be no proper procedures in place to deal with exceptional circumstances and appeals. It could be that young people with exceptional circumstances may suffer as a consequence.

7265. Mr B McCrea: I understand that the Minister lectured what she calls the breakaway grammar schools on their transfer arrangements, stating that it was absolutely imperative that exceptional circumstances provisions were put in place.

7266. Mr C Stewart: Members may have a range of views on what they think constitutes appropriate post-primary transfer arrangements. However, I hope that all members will agree that, whatever those arrangements are, where there are exceptional circumstances and appeals there needs to be a robust and effective mechanism for dealing with them. That is what the regulations propose.

7267. Mr B McCrea: Yes, but my point was that schools seem to be being chastised. Perhaps I have got it wrong, but the timing of the regulations seems rather unusual.

7268. Mr C Stewart: It is difficult for me to comment on that. There is a perceived need to put arrangements in place, and this constitutes the earliest possible opportunity to do that.

7269. Mr B McCrea: I will not labour the point. Chris, you know the point that is being made.

7270. The Chairperson: Chris, can you clarify the current position?

7271. Mr C Stewart: I need to check that and come back to you. It is not an area in which I or my team are deeply involved on a day-to-day basis. However, we can provide the Committee with further information.

7272. The Chairperson: Is it simply a case of the current provisions for education and library boards being transferred to the ESA, or is this something different?

7273. Mr C Stewart: I do not think that the provisions that we are talking about have been commenced yet.

7274. Ms E Stewart: No, they have not been commenced yet. The regulations are to do with exceptional circumstances in which a child has, perhaps, a health problem.

7275. The Chairperson: Currently, how is that dealt with? What is the difference between the current arrangements and those proposed in schedule 7?

7276. Ms E Stewart: We would need to check that and come back to you.

7277. Mr B McCrea: Why would you need to bring the regulations forward if there are existing provisions? There must be existing provisions.

7278. Mr C Stewart: There must be existing provisions. However, at the time of the 2006 Order, a need was clearly identified for a different and, one hopes, better approach. For a variety of reasons those provisions have not yet been introduced. One of the reasons for that was that the RPA came along and there was a need to pause, take stock and see what the role of the ESA might be. The conclusion arrived at was that the ESA was the appropriate body to be given those functions. Now, there is a need to get on with that.

7279. Mr B McCrea: The draft regulations state that cases that involve a child’s educational ability shall not be considered exceptional circumstances. Is that the substantial point? Are we redefining what exceptional circumstances are?

7280. Mr C Stewart: It is difficult for me to comment in detail because I do not deal with the policy behind that. However, if it would assist the Committee, I will ask colleagues to provide a fuller briefing paper on it.

7281. Mr B McCrea: I want to understand the need for change. I understand, in the first instance, that the Department will have to nominate a body to deal with the matter; that is fine, it will be the ESA. However, the regulations, which are fairly short and simplistic in their outline, say that three things are OK and three things are not. Anyway, you will come back to us on that matter.

7282. The Chairperson: That is why we agreed earlier to ask for a briefing from the Department.

7283. Mr C Stewart: We will arrange that. It is likely to be Dorothy Angus and Paul Price who will provide the substantive information on that. They deal with policy in that area.

7284. The Chairperson: Paragraph 293 of the draft report shows that C na G had raised concerns about schedule 7, and, if members want to refresh their memory, the Department’s response is included at paragraph 294. Moreover, the concerns of the North Eastern Education and Library Board (NEELB) are outlined in paragraph 295, and the response is included in the following paragraph, in which the Minister indicated that she saw value in adding non-teaching staff and pupils to the list of those persons whom the ESA must consult about a development proposal.

7285. Mr D Bradley: Chris, will you explain how the Department addressed the point made by Comhairle na Gaelscolaíochta in relation to trustees of Irish-medium schools?

7286. Mr C Stewart: Will you remind me what that point was, please?

7287. Mr D Bradley: It suggested the need for a provision that gives the trustees of Irish-medium schools a statutory right to be consulted about development proposals that is similar to the right enjoyed by Catholic trustees.

7288. Mr C Stewart: 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.

7289. 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?"

7290. 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.

7291. The Chairperson: From what we gather, the Minister indicated that she saw value in adding non-teaching staff.

7292. 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.

7293. 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."

7294. Mr C Stewart: That rings a bell.

7295. Mr D Bradley: Has the Committee seen the wording of that?

7296. 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.

7297. 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.

7298. 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."

7299. However, members will note that the provisions on the role of boards of governors in employment matters are now to be included in the draft regulations being proposed by the Minister. The Department’s paper on employment regulations states that those regulations are based very closely on schedule 2 of the 1998 Order. Chris, that was what you told the Committee last week, and that is now the case in what you have presented to us.

7300. Mr C Stewart: That is exactly the case. Many Committee members were concerned about our original proposal that we would regulate the respective roles of the ESA and boards of governors merely by means of guidance. Many members and stakeholders felt that that was not robust enough, and that it did not provide the clarity and certainty that they were seeking. The Minister has listened to those concerns and agrees that there is a need for subordinate legislation, which has now been proposed.

7301. The Chairperson: The caveat that I would add is around partial consultation with stakeholders. That is a major concern for some Committee members.

7302. Mr C Stewart: I understand that, but I assure the Committee that the Department remains willing to consult any stakeholder who is prepared to engage with it on the matter.

7303. Mr D Bradley: Paragraph 17 of the Department’s submission entitled ‘Review of Public Administration (RPA): Employment Arrangements in the First Education Bill’ states that:

“There may be occasions when the law is unclear, and where it is in the interests of all parties to clarify matters through legal proceedings. Where this is the case, the Department would expect the ESA to support the actions of a board of governors in seeking to clarify the legal position."

7304. Is the phrase “would expect the ESA" not a little weak? It does not really oblige it to do anything.

7305. Mr C Stewart: If the ESA does not meet the Department’s expectations, then the Department will oblige it.

7306. The Chairperson: Under article 101.

7307. Mr C Stewart: You said it for me.

7308. Mr D Bradley: Is it not possible to make it clear to the ESA in the Bill, without reverting to room 101, sorry article 101?

7309. Mr C Stewart: We could do, but perhaps the key point is that the decision on what to do about the matter is with the boards of governors and not with the ESA. The Department has made clear that it expects the ESA to play a supporting and advisory role in that. If, for whatever reason, the ESA was less than enthusiastic in its support, the right of a board of governors to make the decision that it thought was correct would not be curtailed in any way.

7310. The Chairperson: That concludes this part of our consideration of the Bill. I thank Chris and Eve, who will rejoin us later this afternoon.

On resuming —

7311. 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 C na G, 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.

7312. 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?

7313. 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 C na G, 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.

7314. The Chairperson: Thank you. I appreciate that clarification.

7315. 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.

7316. 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."

7317. 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.

7318. 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?

7319. 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.

7320. 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.

7321. 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.

7322. 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?

7323. 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.

7324. 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.

7325. Mr O’Dowd: Is that a direct quotation?

7326. 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.

7327. 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.

7328. 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.

7329. 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.

7330. 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.

7331. 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 —

7332. 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.

7333. 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.

7334. 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.

7335. 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.

7336. 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.

7337. 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.

7338. 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.

7339. 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."

7340. 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.

7341. Mr Lunn: There will be 15 members.

7342. The Chairperson: That is correct; there will be 15 altogether, including the chairperson.

7343. 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.

7344. 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.

7345. 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?

7346. 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.

7347. 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.

7348. Mr B McCrea: Would any vote that we take be recorded?

7349. The Chairperson: Yes.

7350. 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".

7351. 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.

7352. 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.

7353. 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.

7354. 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.

7355. 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.

7356. 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.

7357. I will put any amendments that have been discussed by the Committee against the relevant clauses. For example, suggestions have been made to the Minister, and the question is whether or not the Committee considers those amendments next week when it deliberates on the clauses. I will put all the options before members, and the Committee can decide which option to go for.

7358. The Chairperson: That is not to say that the Committee agrees to the amendments. It is a scoping exercise in light of the letter from the Minister and the Committee’s deliberations to date. Any possible Committee amendments will be in addition to the Department amendments that we will consider.

7359. The Committee Clerk: Yes.

7360. The Chairperson: If members are content with that, they will have the amendments before next Wednesday.

7361. Mr B McCrea: Let me make sure that I have got it right: you are suggesting that we give a scoping exercise amendment to the Clerk before next Wednesday. Do those amendments have to be technically competent?

7362. The Chairperson: No; I do not mean that members should submit amendments. For example, the Minister said that she is not minded to establish committees; therefore the Committee must decide, having regard to its deliberations on the matter, whether we still want to propose an amendment.

7363. Mr B McCrea: There are some proposed amendments to which we have tentatively agreed.

7364. The Chairperson: In our letter, we set out our concerns about local committees, the schemes of employment and the membership of the ESA, to which the Minister said no. However, the Committee needs to make a decision. Therefore we are asking the Committee staff to draw up amendments that reflect our concerns and on which we can vote. It can be confusing. However, we are trying to simplify the process so that no one can accuse the Committee of not doing what it proposed to do.

7365. We are at the final stage of our consideration of the Bill, and time is not on our side. I suspect that we will have to go through this next Wednesday, and again on Thursday morning. The Committee could meet for two hours on Thursday morning to go through clauses 1 to 55 and schedules 1 to 8. That would allow the Committee to come to a definitive position on the Bill.

7366. Mr B McCrea: I agree with that. However, next Thursday is difficult for me as there is a meeting of the full Policing Board.

7367. The Chairperson: OK. We will have to meet on Wednesday afternoon.

7368. Mr D Bradley: Will the Policing Board meeting last all day?

7369. Mr B McCrea: It will last until 3.30 pm or 4.00 pm.

7370. The Chairperson: What time does it start?

7371. Mr B McCrea: It will start at 9.30 am. I might be able to do an afternoon. I would accommodate people.

7372. The Chairperson: The Committee needs to decide whether it will meet on Wednesday afternoon as well as on Wednesday morning. We could have a break for lunch and meet for two hours after lunch.

7373. Mr B McCrea: I have advance notice, and I am happy.

7374. The Chairperson: I appreciate that. It is an important issue for you.

7375. Mr B McCrea: Yes, it is. The Committee Clerk will do his level best to give us sight of our tentative amendments well before Wednesday.

7376. The Committee Clerk: I shall attempt to put before the Committee all that has been considered during these deliberations, particularly with regard to communications with the Department. For example, there have been various discussions on the number of ESA members, and there may be different views within the Committee on the Minister’s proposal to change the range of membership to 11 to 14.

7377. Mr B McCrea: Given that we may have to talk with other colleagues who are not here, it would be better to get that information before 5.00 pm on Tuesday. However, I know that that puts a bit of pressure on you.

7378. The Committee Clerk: The intention is to put the information in the black folders for Wednesday’s meeting. Members will get that folder first thing on Monday morning, perhaps. That is an extra task that I am putting on my colleagues.

7379. Mr B McCrea: Alyn, the Assistant Assembly Clerk, looks as though he is up for it. [Laughter.]

7380. Mr Lunn: To get some advance notice, are we talking about meeting on Wednesday afternoon or Thursday morning?

7381. The Chairperson: We had better make that decision now. I appreciate the difficulties, and I try to be as helpful as possible. Is it better to say that we will meet on Wednesday morning, break for lunch, and come back at 1.00 pm or 1.30 pm, with the purpose of going through the amendments?

7382. Mr Lunn: It seems to work reasonably well. We are all here except the DUP, so it is working great. [Laughter.]

7383. The Chairperson: But I am still here, Trevor, so you will not get past me. I am not as liberal as you think. [Laughter.] OK, so we will meet on Wednesday afternoon.

7384. Mr B McCrea: Wednesday afternoon suits me better.

7385. The Chairperson: That is fair. Unless someone says that they have a real problem with that, we will try to work along those lines.

7386. The Committee Clerk: So the Committee will start at 10.00 am on Wednesday and move through into the afternoon, as we did this morning.

7387. Mr B McCrea: I do not mind what time the Committee starts, if that is of any help.

7388. Mrs M Bradley: We can start at 9.00 am, if you like.

7389. Mr Lunn: Do not start that: 10.00 am is fine.

7390. Mr B McCrea: We will leave it that we will start at 10.00 am.

7391. The Chairperson: OK, we will start at 10.00 am.

7392. Let us move swiftly to the departmental amendments to clauses 1 to 23. I refer members to the table of proposed departmental amendments and the Department’s spreadsheet.

7393. Mr B McCrea: Are we noting the amendments or considering them?

7394. The Chairperson: We will just consider them briefly.

7395. Mr B McCrea: And next week we will say yea or nay to them?

7396. The Chairperson: Yes. If there are any points that need clarification, Chris will be here. Obviously, Chris will not be involved in the decisions, so, at that stage, there will be no requirement for Chris to be present. We will have a farewell gift for you, Chris, so do not worry.

7397. Mr C Stewart: I do not know what we will do on Wednesdays.

7398. The Chairperson: Members will recall that clause 2 deals with the ESA’s functions and general duties. The first amendment is to clause 2(2)(b), which is referred to in paragraph 72 of the draft report. It explains the background to the Department’s amendment, which seeks to address a concern raised by a number of stakeholders. Do members have any comments?

7399. Mr B McCrea: I remember when we discussed that matter, but I might have missed the reply to the suggestion that the word “mental" be included in that paragraph. Was there a reply?

7400. The Committee Clerk: That is a separate proposal in another clause later in the Bill.

7401. Mr B McCrea: That is OK. The Bill imposes a duty on the ESA to contribute to children’s moral, cultural, social, intellectual and physical development. I suggested — and there was some support for it — that given the impact of mental-health issues, mental development should be included. I remember that issue being raised, and I remember people saying that it was a good idea. I do not recall whether we received a response.

7402. Mr C Stewart: The response is in Eve’s letter of 15 September 2009.

7403. Ms E Stewart: The duty for mental health rests with the Department of Health, Social Services and Public Safety (DHSSPS), and it is not appropriate for two Departments’ duties to overlap.

7404. Mr D Bradley: The Department of Education provides health education, social and personal development and professional counselling, which is aimed at improving the mental health of children, especially those who are under particular pressures. That defeats your argument that mental health is solely confined to the sphere of the Department of Health, Social Services and Public Safety. It clearly is not. The Department of Education has a responsibility, too; that has been highlighted by the fact that the Department has brought in professional staff to help young people after the terrible spate of suicides in various parts of the North in the past number of years.

7405. Mr C Stewart: We would not for one moment argue that mental health is solely the preserve of our colleagues in health and social services or that education does not have a key role to play. For the reasons that Dominic has given, it clearly does. However, the Minister is concerned that placing two almost identical duties on two separate Departments will be a recipe for a lack of clarity, and for confusion, overlap and, perhaps, unseemly tussles between the two Departments about which is responsible for what. It corresponds with the view that DHSSPS colleagues have taken on the special education review. For the same reason, they resisted the notion that health and social services bodies should have a statutory duty in relation to special education.

7406. Mr D Bradley: Using that argument, you could say that, because the Department of Culture, Arts and Leisure is responsible for sport, PE should not be taught in schools, or that, because it is responsible for culture, culture should not be included in this clause. You cannot have it both ways.

7407. Mr C Stewart: We do not seek to have it both ways. However, there is a difference between recognising the role of education in the various spheres of development and a statutory duty for mental well-being, which, I think, members had originally proposed.

7408. Mr D Bradley: The fostering and development of good mental well-being is as much a part of education as intellectual development.

7409. Mr C Stewart: It depends whether we are talking about — to use the common shorthand — mental health or mental development. If we are talking about mental development, the Department argues that it is covered by the requirement for intellectual development. If we are talking about mental health, we argue that that represents an overlap with our colleagues in the Department of Health, Social Services and Public Safety.

7410. Mr B McCrea: 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.

7411. 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.

7412. 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.

7413. 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.

7414. 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.

7415. 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.

7416. 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.

7417. 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)?

7418. 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.

7419. 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.

7420. 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.

7421. 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.

7422. 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.

7423. 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.

7424. 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.

7425. 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.

7426. 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.

7427. 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.

7428. 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.

7429. Mr B McCrea: What is the Ulster Scots version of tautology, as a matter of interest?

7430. The Chairperson: It might be codology.

7431. Chris, will you explain how the Office of the Legislative Counsel defines tautology?

7432. Mr C Stewart: It defines it as the unnecessary repetition of two terms that have the same meaning.

7433. The Chairperson: Chris, that is most impressive.

7434. Mr D Bradley: I have just explained that mind and intellect do not have the same meaning. Any of the terms concerned are open to interpretation, particularly moral and spiritual. We have heard from the Chairperson that he would offer an alternative interpretation of spiritual.

7435. Mr C Stewart: The usual approach that legislative counsel and other draftsmen take is that where a term such as that is not sufficiently, clearly and universally understood by the right-thinking man in the street, a specific definition is included. Where, by your argument, two terms are very close, or perhaps two different dimensions of the same thing, and where they are both to be mentioned in the same sentence, then we have to define them both.

7436. Mr Lunn: I think that Dominic has got it in one. We are nearly there. If we put the word “mental" in clause 2(2)(a) rather than the words “mental health", it will mean mental development because the word “development" appears at the end of the list.

7437. Mr C Stewart: Mental development as an alternative to intellectual development would, I am sure, be perfectly acceptable. However, that does not answer Basil’s point; mental development it is not the same as mental health.

7438. Mr Lunn: I am struggling to see the difference between mental and intellectual; I think that they overlap. However, as long as we are not talking about mental health and intruding on the Health Department’s patch, I am more than happy. I cannot see any harm in it; we are talking about mental development, spiritual development, moral development and cultural development.

7439. Mrs M Bradley: I think it is important for young people that we find some way of getting that wording in. Any youth groups that I know of are working with young people with mental-health problems to try to give what support they can to those who avail themselves of their facilities. How do we include the matter in the Bill? We could include the phrase “health and well-being"; perhaps that is not strong enough to cover all sorts of health problems.

7440. Mr C Stewart: My concern is that that would be too strong.

7441. 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.

7442. 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?

7443. 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.

7444. 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.

7445. 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.

7446. 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.

7447. 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.

7448. 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.

7449. 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.

7450. 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.

7451. Mr B McCrea: OK. Thank you.

7452. 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.

7453. The Chairperson: Of course, that is subject to the amendment being brought forward to include the word “mental", or whatever form of words is agreed.

7454. Mr Lunn: Does what we are talking about apply to clause 2(2)(a) rather than clause 2(2)(b)?

7455. The Chairperson: It would apply to clause 2(2)(a).

7456. Mr Lunn: It follows, then, that if the Committee found a wording that suited it in clause 2(2)(a) —

7457. The Chairperson: The Committee would have to amend clause 2(2)(b).

7458. Mr Lunn: The Department would obviously agree to change it. If that is the case, would the Department then also agree to change clause 23? It uses the same wording as clause 2(2)(a) except that instead of the word “contribute", clause 23 uses the word “promote".

7459. Mr C Stewart: I think that it would be essential that the general duty of the Department matches the general duty of the ESA. Therefore, whatever changes the Assembly decides to make will, no doubt, apply to both.

7460. The Chairperson: Are members content with that?

7461. The Department proposes another amendment to clause 2, inserting a new clause 2(4A) to place a duty on the ESA to encourage and facilitate Irish-medium education. I must say that I have an issue with the amendment.

7462. Mr D Bradley: May I ask Chris why the Department uses the terminology “Irish-speaking school" and not “Irish-medium school"?

7463. Mr C Stewart: “Irish-speaking school" is the terminology in the Education (Northern Ireland) 2006 Order.

7464. The Chairperson: Do members have any other comments?

7465. Mr B McCrea: Yes, just the expected one, that an equality issue is involved. One must try to deal with all sectors. The trouble is that it raises difficulties if one sector is included and others are left out.

7466. The Chairperson: I have an issue with the fact that the legislation places a duty on the Department to encourage two particular sectors: the Irish-medium and the integrated sector. There are other sectors, including the maintained and controlled sectors. Since the Minister tells us that she wants equality, we must strive for equality. I do not think that the new clause 2(4A) helps to achieve equality.

7467. Mr D Bradley: I beg to disagree. The reason that Comhairle na Gaelscolaíochta wanted the new clause included is partly historical; it is not an attempt, on behalf the Irish-medium sector, to lord it over any other sector. Because the Irish-medium education is relatively young in comparison to other sectors, with the possible exception of the integrated sector, it was left out — not always deliberately — and provision was not made for Irish-medium education in the various policies of the Department of Education and other educational bodies, such as the CCEA. There was a feeling in the sector, particularly with Comhairle na Gaelscolaíochta, that it wanted to be sure that in future under the new educational body, the ESA, there would be no repeat of such neglect. The sector felt that the best way of assuring itself that it would not be neglected was to ask for new clause 2(4A). .

7468. Mr B McCrea: I have no problem with tackling the issue to find a solution. However, had an amendment come forward that “the ESA shall be tasked with encouraging and facilitating the development of education among white, Protestant middle-class schoolchildren who live on the Malone Road", there would have been an outcry because that is not fair.

7469. Mr D Bradley: That would be a racist proposal, and it is wrong to compare it with what has been proposed.

7470. Mr B McCrea: It was not a proposal; it was designed to highlight the dangers of singling out individual issues. Although I can be won over by your argument about the historical problems, and I am sympathetic to finding a resolution, if that proposal is included on its own it will be misinterpreted. It is counterproductive. If the Irish-medium sector wants to address certain issues, it should find a way to do that; but this approach will cause problems.

7471. Mr D Bradley: To all intents and purposes, the ESA and the Department have that responsibility already.

7472. The Chairperson: Why, then, is the amendment necessary?

7473. Mr D Bradley: I have already explained why it is necessary: historically, the experience was that the Department did not always discharge its responsibility to the Irish-medium sector; not always through deliberate neglect, but often through lack of forethought.

7474. Miss McIlveen: Is it a matter of perception by the Irish-medium sector that it is not being provided for, and is the amendment necessary?

7475. Mr C Stewart: Those are matters of policy on which it would not be appropriate for me to comment.

7476. Mr D Bradley: I will comment if you want, Michelle: it was not perception; it was experience. The sector thought that the amendment was one way of ensuring that there would not be a repetition of what happened under the Department up until now.

7477. Miss McIlveen: Basil made the point that that sector had a loud enough voice to have the ear of the Minister to have such an amendment included that another sector might not have had.

7478. Mr D Bradley: I think that it was I who promoted that amendment on behalf of Comhairle na Gaelscolaíochta through the Committee or through a letter to the Department.

7479. The Chairperson: When C na G was before the Committee it gave a cautious welcome to a suggestion by one Committee member that a duty should be placed on the ESA to facilitate and develop all sectors. Do you remember?

7480. Mr Lunn: I am glad to see that the suspicion that I sometimes refer to is a two-way street. It seems to me that the first line of —

7481. Mr D Bradley: I am sorry; I did not quite catch what you meant.

7482. Mr Lunn: I have frequently accused the other side of the House, so to speak, of being suspicious of the Minister’s intentions. Now, I find that —

7483. Mr D Bradley: Everybody is. [Laughter.]

7484. Mr Lunn: Not precisely; but surely that clause covers all grant-aided schools, including Irish-medium schools. I am not without sympathy for what Dominic is saying, but the clause as it stands does the job that it is meant to do, and it surely —

7485. The Chairperson: And there is no requirement for the amendment.

7486. Mr Lunn: There must be some other way, apart from the amendment. I could argue that another amendment, say 2(4B), should facilitate and encourage integrated schools, but there is no such need. There must be another way to hold the Department to account if it neglects one sector, whether the Irish-medium sector or any other. I do not see the need for the amendment.

7487. The Chairperson: Do you want to comment, Chris?

7488. Mr C Stewart: I will, with the caveat, of course, that anything that I say is not an attempt to justify or promote a particular policy line but merely to explain what the Minister is attempting to do. Dominic accurately summarised C na G’s argument, which the Minister has accepted. The purpose of that clause is not to get the ESA to promote one form of education at the expense of another. It is to recognise that Irish-medium education has particular needs and that in order to meet those needs, the functions that the ESA discharges — and the new clause does not give it any new functions — need to be discharged in a particular way. That is the meaning of the words to which Trevor referred: its functions relating to grant-aided schools. The plain English explanation of clause 2(4A), if I could attempt one, is that in doing what it does for schools, the ESA must recognise that Irish-medium schools have particular needs.

7489. 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?

7490. That is the problem that the amendment creates. I take Trevor’s point: the clause is sufficient without the amendment.

7491. Mr C Stewart: It is not for me to argue for or against a particular policy line.

7492. The Chairperson: I appreciate that.

7493. Mr C Stewart: The Minister’s thinking reflects the fact that the needs of Irish-medium education arise from the fact that teaching and learning are carried out through the Irish language. In areas such as examinations or curriculum support, the one-size-fits-all approach is unsuitable. In order to encourage and facilitate the development of education in those schools, the ESA must adopt an approach that recognises their needs, which, many argue, are unique.

7494. The Chairperson: OK. I take it from the discussion that members are not content, at this stage, with the Department’s amendment to insert proposed new clause 2(4A).

7495. Mr D Bradley: Some of them are not.

7496. The Chairperson: Some of them are.

7497. Mr Lunn: Some of them are still reflecting.

7498. The Chairperson: The next proposed amendment is to clause 3. We might get to the end if we concentrate for the next few minutes. Members will recall that clauses 3 to 12 deal with the ESA as a single employer of all staff in grant-aided schools and schemes of employment. Members should refer to paragraphs 87 to 91 of the draft report. We have already had some discussion on this issue. Do members have any comments?

7499. I am gravely concerned that there has been consultation with one sector but not with another. The voluntary grammars, represented by the GBA, have not had any consultation or contact with the Department to ascertain its views. I stand to be corrected, but I assume that this amendment has been approved by the trustees of the maintained sector or it would not have got this far.

7500. Mr C Stewart: Not necessarily, Chairman. The trustees have not yet given a formal response to the Minister, but informal contact with representatives of that sector suggests that they feel that the amendment is on the right lines. I understand that the Minister is due to meet the GBA this week. Unfortunately, that organisation, in giving evidence to the Committee, indicated that it did not wish to have contact with departmental officials.

7501. The Chairperson: Will those discussions take place?

7502. Mr C Stewart: The Minister intends to meet the GBA this week.

7503. The Chairperson: If we engage with stakeholders, we have a duty to engage with them all.

7504. Mr C Stewart: I agree. Our door is open to all stakeholders.

7505. Mr Lunn: Did the GBA give any reason for not conducting talks?

7506. Mr C Stewart: If memory serves, its representatives gave two contrasting reasons. The first was that they were too busy; the second was that they did not feel that they would hear anything new.

7507. Mr Lunn: That is amazing.

7508. The Chairperson: If an organisation takes that view, can you consult one stakeholder but not another?

7509. Mr C Stewart: We welcome consultation with any and all stakeholders; however, I cannot force the GBA to meet me.

7510. Miss McIlveen: I missed that earlier. Has the Department not made any approaches to the GBA since it made its presentation to the Committee?

7511. Mr C Stewart: No.

7512. Miss McIlveen: Because of comments that were made to the Committee?

7513. Mr C Stewart: We have indicated to the GBA that we are prepared to meet it at any time to discuss the issues.

7514. The Chairperson: Was the text of the amendment sent to the GBA?

7515. Mr C Stewart: No.

7516. Miss McIlveen: Therefore there has been no contact whatsoever between —

7517. Mr C Stewart: Not since the GBA ended contact.

7518. The Chairperson: OK. Are members content, at this stage, with the Department’s proposed amendment? I am certainly not content.

7519. 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."

7520. 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.

7521. 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.

7522. 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.

7523. Mr C Stewart: You are correct, Chairman. This one is consequential to the previous amendment.

7524. The Chairperson: If members do not have any comments, we will move on. The Department’s next proposed amendment is to clause 11, “Salaries, 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?

7525. I may sound cynical, but I hope that there is no jiggery-pokery in how schools are funded. Members have stated before that there is a duty of accountability when money is received from the taxpayer. In light of the review of the common funding formula, is there anything here that could be changed? As was mentioned this morning, there are two distinct ways in which schools can receive money. Is the amendment being made in preparation for changes to the common funding formula?

7526. Mr C Stewart: No, Chairman, it is not. I assure you that there is no jiggery-pokery whatsoever.

7527. The Chairperson: That sounds better than the word that you used earlier.

7528. Mr C Stewart: The amendment is to fix a mistake that we made when clause 11 was drafted. It was not the draftsman’s mistake; we instructed him incorrectly. As you say, there are two methods of funding schools. However, the idea behind the policy is for schools to get comparable amounts of money to do the same things. Clause 11, as originally drafted, would have run counter to that. Some schools would have had control over their salaries budgets; others would not. That was an error, and it was never the Minister’s policy intention to arrive at that position. We propose to fix the error with an amendment that would ensure that all schools have control over their salaries budgets, irrespective of the mechanism by which they are funded.

7529. The Chairperson: Will the amendment affect schools’ freedom or autonomy in the use of budgets?

7530. Mr C Stewart: If the mistake had not been fixed, we would have taken a considerable amount of autonomy away from controlled and maintained schools.

7531. The Chairperson: The Department’s next proposed amendment relates to clause 16. That clause sets out that the ESA will pay capital grants, which were formerly paid by the Department, to voluntary and grant-maintained integrated schools. Paragraphs 147 and 148 of the draft report set out the relevant detail.

7532. The amendment to clause 16 is reasonably lengthy. Do members have any comments?

7533. Miss McIlveen: Can we have clarification on “certain" capital works in the title of the amendment? Does it relate to something specific?

7534. Mr C Stewart: It relates to major works. Minor works would still be carried out by the schools; major works will be carried out by the ESA.

7535. The Chairperson: Is there a financial memorandum that sets a threshold?

7536. Mr C Stewart: I am sure that there is, although I am not aware of what it is.

7537. The Chairperson: Clause 17 provides that superannuation benefits for teachers, which were formerly paid by the Department, will be paid by the ESA. The Committee raised no issues in relation to clauses 16 and 17; the Department’s amendment to clause 17 is set out in paragraph 149 of the draft report. It is a functional transfer.

7538. Mr C Stewart: This is a purely technical amendment on the advice of the Office of the Legislative Counsel to put the meaning of the clause beyond doubt.

7539. The Chairperson: The amendment to clause 26 calls on the ESA to consider the requirements of those attending Irish-speaking schools in relation to curriculum examination. Some members will probably have the same concerns with this amendment as they had with proposed new clause 2(4A).

7540. Mr B McCrea: Why is it necessary? Has the Department not been doing that already?

7541. Mr C Stewart: The argument made by C na G was that, in exercising curriculum support functions and examination functions, the authorities, the boards and CCEA were not meeting the needs of Irish-medium education sufficiently.

7542. The Chairperson: That does not reflect the intention of trying to establish equality.

7543. Mr D Bradley: I do not want to reiterate everything that I said before, but the same arguments apply from C na G’s point of view, and I am sure that other members will agree, although not everyone. Children being taught in a language other than English have specialised requirements. Cognisance must be taken of that fact, and it must be reflected in the operations of the ESA and its examination and curriculum function.

7544. Mrs O’Neill: I agree with Dominic. That is the reason behind the amendment.

7545. Mr B McCrea: I have no argument with Irish-medium schools having an Irish-medium curriculum and Irish-medium exams. However, the amendment brings unnecessary attention to the issue, and that is why I asked whether that had not been done already.

7546. Mr D Bradley: That was one of the reasons that Comhairle na Gaelscolaíochta considered that specific reference and felt that that provision was needed in the Bill. Its experience was that the needs of teachers and pupils were not taken into consideration when guidance materials were produced. That contributed to an experience of neglect. As I said before, it may not always have been deliberate neglect, but that experience has led Comhairle na Gaelscolaíochta to ensure that it will not have to endure such neglect in future.

7547. Mr B McCrea: If academic schools requested help and advice for entrance tests, which set out their conditions, or faith-based schools requested their own conditions, we could end up with a plethora of special-interest cases. Is it not better to have some form of general requirement?

7548. 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.

7549. 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.

7550. 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.

7551. 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.

7552. 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?

7553. 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.

7554. In making its argument, C na G 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.

7555. 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.

7556. 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.

7557. The Chairperson: There is one word for that — equality. As I have said to the Minister and to the Committee numerous times, we will either have equality or we will have none. A party around this table used to say that it was either neutrality or equality. The Bill will either achieve neutrality or equality. I do not say that because — as people might accuse me — it is about the Irish-medium sector. I would make the same argument about the integrated sector. We might establish a new dispensation for education that provides equality of access, but we will never achieve equality of outcome because all our children are different. However, it will provide equality of access in how our schools are governed and in how we decide the future of our estate.

7558. Including other duties has the implication of unravelling the Minister’s intention, which is to achieve equality. I take the point that you will make that the sector will argue that the provision is necessary because existing inequality must be addressed. That will be addressed by that sectoral body telling the ESA what it requires. The legislation is sufficient to make the ESA able to respond to the needs of any sectors without giving specific reference to one particular sector over and above another.

7559. Mrs O’Neill: Equality is about addressing imbalance, not about giving an equal amount to everybody.

7560. The Chairperson: There is a huge amount of work to do on that.

7561. Mr B McCrea: It is also about education, equality of opportunity and equality of outcomes. That argument was put forward in Transfer 2010. The issue is about getting a fair and equitable solution for all concerned; that is what we are about.

7562. Mrs O’Neill: That is what I said; it is about addressing imbalance.

7563. Miss McIlveen: Taking that to its conclusion, does that mean that the imbalance that affects the controlled sector will also be addressed?

7564. The Chairperson: That is the point that I made to Chris earlier. A report from the Department clearly identifies a problem with working-class Protestant boys. There should be a requirement in the Bill that specifically places a duty on the ESA to ensure that that is addressed. That would address an imbalance and inequality that has been highlighted by the Department. If we go down that road, the difficulty is that we might begin to set one organisation up against another. Although I do not want to be controversial, I must say that the Minister’s attitude has been very dismissive of a sector that educates 42% of post-primary schoolchildren, namely the grammar sector. That sector provides 1·3% of our education but has only a very small percentage of the school estate. There is a huge issue of disparity.

7565. Mr O’Dowd: I take it that the Chairperson still supports parental choice.

7566. The Chairperson: I still support parental choice, but parental choice —

7567. Mr O’Dowd: Then your argument slightly falls apart.

7568. The Chairperson: No, it does not, because parental choice comes at a cost, and, as a parent, I made a parental choice and it cost me. I educated all my children outside the state, and that cost me as a parent.

7569. Mr O’Dowd: I can assure you that there are associated costs for any parent who is putting their children through any level of Irish-medium education.

7570. The Chairperson: I do not doubt that. However, we should not compound the issue by giving preference to one sector over another.

7571. We want to conclude this matter, because we could be here all day. Obviously, there is no agreement on clause 26. I have to apologise to the Committee: I made an error, which is that the Committee already considered the amendment. I had to be reminded by the officials that at last Thursday’s meeting the Committee worked from clause 24 onwards.

7572. Mr B McCrea: So we can go now?

7573. The Chairperson: No; there is one more clause. The Committee did not consider clause 28, which is entitled ‘Approval of courses leading to external qualifications.’ The DEL amendments propose changes to clause 28 and the insertion of two new clauses. Chris, will you provide an outline of them?

7574. Mr C Stewart: I can give a brief outline, but you will appreciate that it will require DEL colleagues to brief the Committee in detail on the policy intention behind those amendments. Essentially, DEL needs the ESA to carry out certain functions on its behalf aimed at supporting DEL in its functions with regard to qualifications that it would designate. The popular shorthand for that is vocational qualifications. That is what DEL is looking for here. Essentially, the amendments ask the ESA to carry out a range of functions on behalf of DEL, which are very similar to the functions that it would carry out on behalf of the Department of Education.

7575. Mr O’Dowd: I am tempted to ask whether those policies would be driven by the Minister for Employment and Learning.

7576. The Chairperson: That is what might worry me, so the Committee needs to scrutinise that.

7577. Mr B McCrea: I speak in defence of the most excellent Minister for Employment and Learning, but I want to ask about new section 6(a) in one of the DEL amendments. I have lost the will to live, but somewhere along the line we were adding in the equivalent phrase. There was an amendment to add a paragraph (c) in the equivalent section. Is that correct?

7578. Mr C Stewart: You have me at a disadvantage, Basil.

7579. Mr B McCrea: I think there was somewhere where we had to have due regard for the Irish-medium sector. Was there not? The second proposed new clause in the DEL amendments states that the ESA shall have regard to: “(a) the requirements of industry, commerce and the professions regarding designated qualifications; and

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

7580. Mr C Stewart: Sorry, yes, I am with you now.

7581. Mr B McCrea: Yes, help me out.

7582. Mr C Stewart: The Minister for Employment and Learning has not asked for a similar provision for Irish-medium education.

7583. Mr B McCrea: Yes, but the provision —

7584. Mr C Stewart: I am not certain that there is Irish-medium education in the further-education sector

7585. Mr B McCrea: Maybe there ought to be. Just help the Chairperson, because he is looking at me as if I have two heads.

7586. The Chairperson: No; carry on.

7587. Mr B McCrea: Will you be introducing one amendment that has a 6(a) and (b)?

7588. Mr C Stewart: Yes.

7589. Mr B McCrea: And somewhere else there will be a 6(a), (b) and (c)?

7590. Mr C Stewart: Yes.

7591. Mr B McCrea: I am just raising that as a quirky issue.

7592. The Chairperson: So do you not agree with the amendment, Basil?

7593. Mr B McCrea: I am just pointing that out. I have not had time to really consider the matter, but as it is my leader that is bringing the amendment forward, I am sure that it is brilliant — for the record, you know. [Laughter.]

7594. The Chairperson: Be careful.

7595. Mr B McCrea: I am just pointing out that whatever decisions the Committee makes, it would be appropriate to have compatibility. It would look wrong to have two supposedly identical clauses but one with only two paragraphs and the other with three. Anyway, I have brought the matter to the Committee’s attention and the Department can have a think about it.

7596. Mr O’Dowd: After me and you meet, you should go and meet Reg. [Laughter.]

7597. The Chairperson: Do members have any further issues about clause 28? The DEL amendments propose the insertion of two new clauses, which relate to the functions of the ESA with regard to qualifications.

7598. The Committee Clerk: What was distributed was the Committee for Employment and Learning’s endorsement of the Committee amendments.

7599. The Chairperson: That concludes consideration of the amendments.

23 September 2009

Witness:
Mr Chris Stewart (Department of Education)

7600. The Chairperson (Mr Storey): Issues that are set out in the correspondence from the Minister of Education are relevant to the Bill and will be considered at the appropriate stage, unless members have other comments on the correspondence. The Committee had its concerns and was criticised when it asked for an extension to consider the Bill.

7601. One thing that has bedevilled us over the past months is the lack of haste in producing amendments. Even yet, the latest correspondence states that the Minister is still considering the precise wording of an amendment, which will depend on advice from the Office of the Legislative Counsel. The Minister says that she will endeavour to let the Committee have the wording before the end of the Bill’s Committee Stage, if possible. That stage ends today, after the Committee considers the Bill clause by clause.

7602. Therefore, any amendment proposed subsequent to today’s meeting would not be in the Committee report that is to be signed off next Wednesday. The Committee is time-bound to deliver that report to the Assembly by 30 September.

7603. The Committee Clerk: The Committee must sign off the report, as approved, next Wednesday at the latest. Today’s deliberations are the final decisions on the clauses and schedules of the Bill so that the report can be produced, including its recommendations to the Assembly.

7604. The Chairperson: What happens if the Minister tables an amendment at Consideration Stage?

7605. The Committee Clerk: The Minister will choose a time in October, or indeed, a date of her choice, to bring the Consideration Stage debate forward. Standing Orders relate to the end of the Committee Stage and the beginning of the Consideration Stage debate. There must be a certain time gap, usually two or three weeks.

7606. The Chairperson: Can that period be longer?

7607. The Committee Clerk: It is the Minister’s choice when that is brought forward. The final date for tabling amendments will be established when the date for the Consideration Stage debate is known. That will be the Thursday before the debate, which will be on a Monday or Tuesday. The Minister, Members and the Committee can table amendments to the Bill up until that time.

7608. The Committee’s report records exactly what was agreed at Committee Stage until today and until its publication next Wednesday 30 September.

7609. Mr B McCrea: Is there a schedule for those dates? Have we been furnished with that information in written format?

7610. The Committee Clerk: I can bring advice on Standing Orders in relation to the period between the 30 September and the possible dates that the Minister could suggest for Committee Stage.

7611. Mr B McCrea: That would be useful for the critical path analysis. Have we had clarification about what happens if we do not meet the deadline of 1 January 2010? There has been some discussion about the implications for the education and library boards if the Bill has not been passed by that time. If they are abolished, will they still be able to pay staff?

7612. The Chairperson: From my recollection of the correspondence, and Chris Stewart can clarify this, the preferred date was 1 January; however, the date of 1 April was mentioned.

7613. Chris, can you join us? You will have to sit in the public gallery when we move to the clause-by-clause scrutiny, as that is part of the Committee’s deliberation. It will be good to get some clarification.

7614. Mr Chris Stewart (Department of Education): It would not be a Wednesday if I did not get to join you at the table.

7615. Mr B McCrea: It is good to get your on your own for once.

7616. Mr Stewart: Support is only a shout away.

7617. As regards Basil’s question, if for some reason the Bill did not become law by 1 January, the education and library boards would not be dissolved; they would remain in existence and could continue to pay staff and discharge their functions.

7618. Miss McIlveen: The Chairperson mentioned possible amendments being tabled by the Minister, and the time scales around that. We are nearing the end of our Committee Stage.

7619. Mr Stewart has attended the Committee on numerous occasions when it discussed the second Bill at length; members wanted to see it before concluding their deliberations. The Minister made it clear in her statement to the House that the second Bill was to have been introduced to the Assembly by June 2009. Has there been any sighting of the second Bill?

7620. Mr Stewart: The draft second Bill is with the Minister for her formal sign-off. As soon as she is content with it, the Department will send it to the Committee.

7621. Miss McIlveen: Is the Committee likely to see it by next week?

7622. Mr Stewart: That is the Department’s aim. Unfortunately, I cannot send the draft Bill to the Committee until the Minister confirms that she is happy for me to do so.

7623. The Chairperson: The Committee’s working assumption was that it would be content to proceed with the first Bill once it had sight of the second Bill; that has not happened. That is a major problem, because the Bills are inextricably linked and there are major problems, particularly for the controlled sector, in the second Bill. Members will correct me if I am misrepresenting the Committee by stating that it believed it would have sight of the second Bill before clause-by-clause scrutiny was reached. Today, the Committee will make decisions on the clauses of the first Bill.

7624. Mr Stewart: The Chairperson is correct. For some time, the Minister has intended that the Committee should see the second Bill before the first was signed off. I recognise that we are well into the eleventh hour in relation to that. It is unfortunate that the Committee has not received the draft second Bill. I will pass those points on to the Minister and I will let the Committee have the second Bill as soon as possible.

7625. I hope that when members see it they will be reassured that the two Bills are complementary. The second Bill gives effect to the Executive’s decision that there should be a single legislative programme to take through the entire RPA policy. Members will see that the gaps that they pointed out have been filled in by the second Bill. To use a well-worn phrase, I hope that members will see that there are no Trojan horses in the Bill; it merely gives effect to the other parts of the policy that must be put in place.

7626. Mr O’Dowd: I want to go through what the Education Bill says about the boards’ life span. What would the process be for the boards to remain in existence until 1 April? Would that require legislation by the Assembly?

7627. Mr Stewart: No. It is important to emphasise that the Minister’s aim is to have the legislation on the statute book and the ESA established by 1 January. If, for whatever reason, that did not take place, the existing legislation would remain in force, and education and library boards would exist as statutory organisations. The membership of those boards would have to be reconstituted at that point, but that is an administrative step.

7628. Mr O’Dowd: Would the Minister reconstitute the boards?

7629. Mr Stewart: Yes.

7630. Mr O’Dowd: However, in effect, the boards will come to an end on 31 December 2008, and, if the Minister wished to, she would reappoint public representatives to a board or, as has been the misfortune in other cases, establish a commission.

7631. Mr Stewart: That would be possible.

7632. Mr B McCrea: What factors would the Minister have to consider if the education and library boards need to be reappointed for a short period? I am thinking about the decision whether to establish a commission or appoint members to a board.

7633. Mr Stewart: I will answer as fully as I can, with the caveat that we are talking hypothetically about a situation for which we have not planned and that is not on the radar at present. If the period involved were short, as Mr McCrea suggests, what is likely to be uppermost in the Minister’s mind is the continuity and smooth operation of the organisations in the interim while awaiting the establishment of the ESA.

7634. Mr B McCrea: It would be useful to minute formally the points that are being made about what will happen, because there was some confusion. John O’Dowd referred to the fact that the Committee was of the opinion that the boards would disappear automatically, leaving a void. If the education and library boards do not disappear automatically but continue in existence, the Minister would have to decide whether to reappoint or establish a commission.

7635. Mr O’Dowd: The discussion has been useful. In that event, the 35-person administration body of the education and library boards would remain in place. However, I put on record my party’s concerns that the boards may be reappointed for three to four months.

7636. Mr Lunn: The Bill will abolish the education and library boards when it becomes law. Is that correct?

7637. Mr Stewart: Yes.

7638. Miss McIlveen: I find it amazing that no consideration has been given to an alternative. There is an assumption that the Bill will go through on time.

7639. Mr Stewart: It would be presumptuous of us not to continue to plan according to the decisions that the Executive have already taken. The Executive and the Assembly have indicated that they wish to see the ESA established by 1 January 2010.

7640. Mr B McCrea: Is it fair to say that in other areas of the industrious Civil Service, contingency planning is in place for all eventualities?

7641. Mr Stewart: Plans for a contingency depend on the likelihood of the contingency.

7642. The Chairperson: I cannot remember the exact reference that was used in the correspondence. However, the date of 1 April 2010 was mentioned as an alternative if the establishment of the ESA went beyond 1 January 2010. Therefore, 1 January 2010 was not always set in stone by the Department. I think that the words used were either that it was the “intention" of both the Department and the Executive to have the ESA established by 1 April 2010 or that that was the “intended" date. The other words that the Minister used were “the aim".

7643. Mr Stewart: That is correct, Chairman. The Minister was properly reflecting — as we hope we do — that one cannot take anything for granted until the Assembly takes a formal decision. Until the Bill becomes law, no one can say with absolute certainty that anything will happen on a particular date. Nevertheless, we must be mindful of the effects on staff working in the education system, because this is the most momentous step change for them in 35 years.

7644. On the one hand, it is important that we do not anticipate the will of the Assembly; on the other, it is important that we do not cause staff unnecessary concern by painting an unnecessarily uncertain picture. It is the aim of the Executive and the Assembly to establish the ESA on 1 January 2010. We are working as hard as we can to establish that.

7645. The Chairperson: We are not anticipating failure; rather, we are making sure that there are no flaws. As has been pointed out, the original Bill had major difficulties, problems and mistakes. The fact that there are some 35 amendments and a raft of other amendments that the Committee may be minded to make proves that this process works, albeit sometimes it has been laborious and repetitive. However, that is the nature of the business.

7646. Mr Stewart: The process has been painstaking and thorough. You are right: that fact shows the strength of the process and the importance of the Department working closely with the Committee to ensure that we get the best possible Bill.

7647. Mr O’Dowd: People need to be careful about temporary measures. Two years ago, six commissioners were put in charge of the Southern Education and Library Board as a temporary measure; they are still in place and administering the work of the education board. They ensure that staff are paid, that education is provided and that school meals are delivered. No one wants to reach that stage across all the boards. People should not be talking about temporary measures, as, once taken, temporary measures could become permanent. The good work that we have put into the Bill and our engagement with the various sectors would be diminished. Although I have had disagreements with the Chairperson on how we should proceed, in general, I believe that the Committee has done good work on the Bill.

7648. We have teased out stakeholders’ concerns; however, we cannot allay everybody’s concerns. That is the nature of politics. Sometimes, you should not meet everyone’s needs. Politicians are elected to make decisions, but they cannot keep everybody happy.

7649. We should continue to work towards establishing the ESA on 1 January 2010; that will be a democratic process in which the Committee and the Assembly will be involved. As I said, my party has serious concerns about the establishment of temporary boards from 1 January 2010 to whenever. We could end up with a long stalemate, which will do no one any favours.

7650. Let us go through the democratic process of engaging and putting the Bill through the Assembly with whatever amendments we have approved.

7651. The Chairperson: The Department’s letter of 22 September 2009 comments on tax liability arising from the transfer of property and assets to the ESA. It relates to schedule 3, which deals with tax liability. The letter covers stamp duty, land tax and corporation tax. As regards corporation tax, it states:

“there is a potential for tax liabilities to arise in the other three organisations; CCEA, CCMS and the Youth Council. However, given the nature of the assets held by these organisations, combined with the low valuation of possible relief available, any potential liability appears minimal."

It does not rule it out.

7652. Mr Stewart: At present, it is not ruled out absolutely, Chairman. We hope that within a matter of days, it will be completely ruled out. Unfortunately, my colleague in Her Majesty’s Revenue and Customs (HMRC) who advised me on that has retired. We now liaise with his successor.

7653. As of today, we cannot give the Committee an absolute guarantee that there is no liability; however, we strongly believe that there is not. We hope to confirm that within a matter of days.

7654. The Chairperson: Primarily, the matter was raised with regard to the assets and liabilities of the controlled sector, because of its nature. It retains £2·3 billion worth of estate. In a sense, the correspondence raises concerns about the assets and liabilities of CCEA, CCMA and the Youth Council. It states that:

“any potential liability appears minimal".

I am sure that they would be very concerned that there was any potential liability.

7655. Mr Stewart: As would we, Chairman. We are talking about the transfer of public assets from one public authority to another. A general principle of taxation and public financing is that it really ought not to give rise to tax liabilities, and we are working to ensure that that is the case. If any action is necessary to ensure that that is the case, we will certainly take it.

7656. The Chairperson: I am sorry to labour the point, Chris, but I want to be clear: if a situation arose, who would pay the bill? Who would be liable for the ownership of both the liability and the properties: the organisation or the body that would come into existence?

7657. Mr Stewart: If there was a liability, ownership would fall to the ESA. However, I do not want to worry the Committee unnecessarily. We have couched a letter in understated Civil Service language, and we do not think that there is a problem. Although I am 99·5% certain; until I get the other 0·5%, I am not.

7658. The Chairperson: Chris, this is not a criticism of you as an individual, but according to your comments to the Committee on 9 September, we have had a legal opinion on a particular issue for years; we now discover that there is a different opinion, and some of us contend that that opinion is not correct. I do not want to create a minefield for lawyers; unfortunately, however, that is the ground on which we have to tread. That raises a concern, which has been highlighted or compounded by the fact that we are now not only looking at an issue that may be an issue for the controlled sector but for other sectors as well.

7659. The phrase “appears minimal" in relation to potential liability is why I asked who would pay the bill if there were any liability.

7660. Mr Stewart: Potential liability appears minimal, and I hope to reassure the Committee before the end of this Stage that it is zero.

7661. Mr D Bradley: I have looked at the list of attendees of meetings of the controlled schools sectoral support group, and there seems little continuity. A few people appear to have attended some but not all the meetings. What is the work programme that the group is involved in? I take it that it is an ad hoc group.

7662. Mr Stewart: Unfortunately, Dominic, I do not have full details of that. The Department has that information, however, and I would be happy to send it to the Committee.

7663. Mr D Bradley: Could we have a report of its discussions to date?

7664. Mr Stewart: I am sure that that is possible. I would be happy to pass that request to the group.

7665. The Chairperson: The Committee Clerk informs me that we have already asked for that. We should reaffirm whether we are still looking for that information.

7666. This is not a reflection on individuals, but I am concerned about how much knowledge members of that group have about the sector for which they are to take opinions and on whose behalf they formulate policies. That is a major concern. Dominic mentioned consistency, and from examining the attendance list, I see that people have attended one meeting but not the next one. There has not been a consistent attendance. There are rumblings in the undergrowth from some people who have attended, which are beginning to permeate through to us.

7667. Mr D Bradley: How is the membership of the controlled sector group made up? How were its members recruited?

7668. Mr Stewart: At the beginning of the process, the Department attempted to kick-start it by putting together the broadest possible list that we could think of, having taken soundings from sources, including the Committee. Thereafter, it is self-selecting. The group and the sector decide who wishes to take part and who feels that they may have something to contribute.

7669. The challenge, as the Chairperson suggested, is that whoever is involved in the group has to demonstrate to a very large and diverse sector that they are capable of representing its needs and views and of discharging the functions that they have taken on.

7670. Mr O’Dowd: Is there any suggestion that anybody has been turned away from those meetings or made to feel unwelcome or that their presence or opinion was not valued?

7671. I am happy to support the controlled sector in whatever way we can, and the establishment of any new body will always generate rumblings. However, the Committee must know whether people are being turned away or made to feel unwelcome or that their opinions are not wanted. The Committee’s concerns must be firmly based. Can the Committee even request the minutes of meetings of the working group?

7672. The Chairperson: The Department established it, so I assume that the Committee can seek the minutes; is that correct?

7673. The Committee Clerk: The Committee can certainly ask.

7674. Mr O’Dowd: Have we any authority? I am just teasing out our options.

7675. The Chairperson: We are not saying that people have been turned away. I may be accused of parochialism, but if a body were established to look at the maintained sector and people from other religious persuasions or other groups had been put on that body — people whose opinions may not be focused on that sector — concerns would be raised by the maintained sector.

7676. The list of attendees — whether attending by invitation or self-appointment — includes people who, without devaluing the contribution that they can make, do not come from a background that suggests passion for that particular sector. There are people on the list who have that passion, and I am glad that they are there because they can make a very good contribution. I see that there are one or two principals who have been in the controlled sector for many years, so they should have a good grasp and understanding of that sector. However, the bigger problem is that the group has been set up two years later than it should have been.

7677. Mr Stewart: I can offer some information on that. Section 44 of the Northern Ireland Act 1998 gives the Committee considerable powers to request whatever information it wishes, but it may not want to use such a sledgehammer in this case.

7678. The Department will endeavour to provide as much information to the Committee as it can about the operation of the working group, but I stress that the group was not established or run by the Department. The Department is there in a consulting and advisory capacity. It recognises the need to take that role, because, unlike the other sectors, the controlled sector is at much earlier stage of evolution in the process and may have a much greater need than other sectors for the Department’s help, support and guidance.

7679. To illustrate what happens: on the day that the working group meets, Department officials will be there, but they leave the room for the greater part of the meeting. They are not present while the group conducts its business, unless the group asks them to come forward to assist it, in much the same way as we do with the Committee.

7680. Committee members’ concerns might be best addressed by, in due course, inviting members of the working group to deliver a presentation on the work that they are doing and the stage that they have reached. They may be able to answer the Committee’s questions more convincingly than I can, simply because they are directly involved in the process and I am not.

7681. Miss McIlveen: Much of what I was going to ask has been answered. However, does the group have terms of reference, a secretariat and a chairperson?

7682. Mr Stewart: The acting chairperson is Hugh McCarthy, the Principal of Killicomaine Junior High School, and the Department has been providing a secretariat because the group does not have its own and there is no alternative. Aside from someone taking minutes being in the room, the Department does not take part in the meeting.

7683. Miss McIlveen: Were the terms of reference established at the outset?

7684. Mr Stewart: I believe that the group itself drew up its terms of reference in its first or second meeting.

7685. Miss McIlveen: The difficulty shared by members is the fact that it has taken so long to establish the group, which leaves it to catch up on a considerable amount of time. The membership appears random and attendance is very ad hoc. Those are initial observations from the first few meetings, but they raise questions about the dedication of many of those involved.

7686. Mr Stewart: All those points are perfectly fair. I will not try to put words in the mouths or the minds of those who attend, but because it is a new approach and a new initiative, I am sure that many people have come along with great enthusiasm and all have attended with considerable dedication. Others have come with curiosity and wonder whether they feel that it is appropriate and something in which they wish to play a direct role. Perhaps it will take one or two meetings for people to come to their own conclusions.

7687. The Chairperson: Who has their hand on the tiller of this vessel? Perhaps it is a ship that is away out at sea that everybody hopes will find a port or destination at some stage. People can get on if they want, but we are not that worried if they do not want to. That concerns me because we are talking about a sector that educates 98% of the Protestant children in Northern Ireland.

7688. Mr Stewart: I do not think that we could be as neutral on the matter as your question implies because we would be as concerned as you if we thought that the group could fail. It is very important that the controlled sector has an effective representative body. However, I think that the Committee would be equally concerned if it received reports from the sector that stated that the Department’s heavy hand was all over the group and that the Department was dictating and demanding that it went in a particular direction or went about its work in a particular way. The Department does not do that with other sectors.

7689. We are there to assist and guide. Certainly, if we think that something is going seriously wrong, we will not be slow to tell the working group of our view. However, that does not mean that it has to slavishly follow every piece of advice that the Department offers or that it will agree with everything that we say; it is quite the reverse. One of the measures of the success of this exercise is that there will be a strong and effective body that feels that it has the capacity to argue with the Department about the future direction of education. If it were not so, I do not think that the body would be effective.

7690. Miss McIlveen: What bothers me is the fact that there has not been any real progress. The letter from the Minister that was given to the Committee today implies that C na G is so forward-looking that the Minister is contemplating further amendments on behalf of that sector, yet the controlled sector does not even have a body. That is what really bothers me.

7691. Mr B McCrea: The membership list that we received does not appear to include any people from west of the Bann, apart from the Foyle women’s group. There appears to be at least one councillor who, to my knowledge, sits only on the boards of Catholic maintained schools. No principals of non-grammar controlled schools are represented on the body. There are also some concerns about the way in which the meetings were called. The first meeting was on the last day of school, so there might have been some difficulty in getting people to attend, and then the next meeting was held on near enough the first day of school. The people who we are trying to attract are busy, so the timing is all wrong.

7692. Chris, although you said that the Department was taking a hands-off approach and that you would tell the Committee if you thought that things were not quite going to plan, I am concerned that we are not really anywhere with that body. The needs of the controlled sector must be addressed if we are to address the needs of all the other sectoral interests. I do not think that it is working.

7693. Mr Stewart: I do not think that the group would share your view, and its view is perhaps more important than mine in that regard. As I have said, we are not in a position to police the membership. We are certainly not in the business of turning away anyone who turns up. If there are gaps, we will certainly pass on those concerns to the group, but the issue is for it to address.

7694. You are absolutely right: the timing of the first meeting was poor. I do not think that we could have picked a worse date for school principals than the last day of term. One or two of them made that point to us quite forcefully. However, the second and subsequent dates were chosen by the group. We asked what it thought would be a suitable date for the second meeting, and that date was identified by the group, including by the school principals.

7695. Mr B McCrea: When you spoke about the controlled sector, my immediate response was to think not of controlled grammar schools but secondary modern schools, or whatever you wish to call them. The fundamental point is that the principals of those types of schools are not represented on the group. I am sorry to say, Chris, but the emperor has no clothes. The people who will be affected most are not in the group.

7696. I suspect that some of the grammar school principals are considering joining the Governing Bodies Association (GBA) or another voluntary organisation. There are not enough people in the group who can represent the sector about which we are concerned. Those on the group will not be able to carry that sector. Although I am grateful to all the people who turned up, it was a case of omission rather than of rejection. We need to get more representatives from the controlled sector. If we do not do that, I am afraid that the needs of the controlled sector will not be addressed.

7697. Mr Stewart: With the greatest respect, it is a bit early to conclude that the membership is not representative. Without asking the individuals concerned, none of us can say why certain people were or were not present at a particular meeting. As you rightly stressed, school principals are busy people, and they cannot, therefore, come along to every meeting.

7698. At the first meeting at which I was present, there were principals from non-grammar schools and secondary schools, and a principal from a controlled school. The latter might not have been present at subsequent meetings for reasons I do not know. Your general point is correct: the group must represent all the various parts of a very diverse sector. That is a challenge for the group and is not something that the Department can dictate.

7699. Mrs M Bradley: I was about to mention the representation west of the Bann, but Basil beat me to it. I am concerned about the lack of representation from the Western Education and Library Board (WELB) area. I recognise only one name on the list, and she is not an educationalist. I am not condemning that woman — in fact, I know her very well, and I would not do that. I think that people who work in controlled schools in Derry would have been keen to be part of the group. However, I do not know whether they applied. I am concerned that the WELB area does not seem to be represented at all.

7700. Mr Stewart: I must stress again that no one was excluded and no one had to apply to attend. People who wish to attend the meetings and get involved are very welcome.

7701. The Chairperson: In fairness, that is not the best way to do it. Surely the onus is on the Department to appoint an interim manager while the new body is being set up. We do not even know who chairs the group. How is that decided? Is it a case of throwing all the names into a hat on the day of the meeting and picking out the name of one person to chair that meeting, and then repeating the process at the next meeting? The approach seems scattergun. It gives the impression that the controlled sector does not matter, even though it owns £2·3 billion of the estate and caters for the greater percentage of Protestant children.

7702. That was not the case when we dealt with the other sectors over the summer. They battered on the door and brought about change, and there are different reasons for that. I concur with Basil’s point: it just gives the impression that the sector is not at the game. The controlled sector is at the heart of everything that goes on in the community. I think that the Department has abdicated responsibility, washed its hands clean and thought that if it works, it works and if it does not, it does not. That is the wrong attitude.

7703. Last week, we saw the Department’s attitude towards another sector. The Department took the view that if the GBA was not going to talk to it, it was not going to talk to the GBA. Then we received a letter from the Minister stating:

“Members are already aware that I have arranged to meet the GBA this week, and I am pleased to say that, following the Committee meeting, the GBA has also requested a meeting with officials."

I believe that that meeting is taking place today. That shows the Department’s attitude, which is

“We will take the ball off the pitch. We will decide what we are doing, and if anyone wants to talk to us, the door is open, come to see us."

7704. Mr Stewart: You made a number of points to which I ought to respond. I understand your points. However, with respect to you and the Committee, I think that you are being a little unfair on the group and, perhaps, on the Department, too. The group is not as ad hoc as your question might imply. It has a chairperson, who is chosen from among its members. It has adopted a committee structure, which it has chosen itself.

7705. The Chairperson: Who is the chairperson of the group?

7706. Mr Stewart: It is Hugh McCarthy.

7707. The group has adopted a working plan and a committee structure, and, given the fact that it has been going for only a short time, it has made encouraging progress, and it continues to do so.

7708. On the point about the GBA, as I said last week, there is no question of the Department taking the ball off the pitch. We have never refused to meet any stakeholder or to accommodate any stakeholder’s wish for dialogue. The GBA was asked by the Committee whether it was prepared to meet the Department, and it declined to do so. Subsequent to that meeting, a member of my staff wrote to the GBA and asked again for a meeting, and they received a reply turning it down. That reply expressed the organisation’s view that it did not see any value in having dialogue with the Department. There is a limit to the number of times that we can ask the GBA for a meeting, and we certainly cannot force it into meeting us.

7709. When I returned to the office after last week’s meeting with the Committee, I was pleased to find a request from the GBA for a meeting. I do not know what prompted its change of heart; perhaps it had been listening to the Committee’s debate. We welcome that request. As I said at last week’s meeting, the Minister already had plans to meet the GBA. That meeting is taking place today. We are pleased to see that it is prepared to resume dialogue with officials, and that dialogue is under way. If the ball was ever off the pitch, it was not at the Department’s behest. Perhaps more importantly, I assure you that the ball is back on the pitch.

7710. The Chairperson: As a Calvinist, I can say that you got that request because of confidential circumstances.

7711. Mrs M Bradley: Should it have been ensured that all the board areas were well represented on the group?

7712. Mr Stewart: We will certainly welcome any assistance that Committee members will give us on that. When the original list was drawn up, it included all the names that were suggested by Committee members. If you wish to suggest other names, we will be happy to put those forward.

7713. Mr Lunn: How many people were invited to join the body? The average attendance seems to be 15 or 16. How many are entitled to be there?

7714. We have asked for the minutes of the meetings, and I do not know whether we can get them. I know that only three meetings have taken place, but has the body put any identifiable product back to the Department for consideration?

7715. People are concerned about the sector being properly represented, and there are various concerns about geographical considerations. Someone said that at least one person is listed as being an attendee who does not have a direct interest in the controlled sector and who might even have an direct interest in the maintained sector. That would be a good thing, because the body could perhaps learn something form the perceived success of the other sector in some areas. If he or she wishes to contribute to the body, fair play to them.

7716. Mr Stewart: I certainly concur with that point; that would be a great advantage. The people on the group recognise that they can learn from the experience of some of the other sectors. Those from the maintained sector would say that it is perceived to be a successful sector and that the Council for Catholic Maintained Schools (CCMS) is perceived to be an effective organisation, but it was not always that way, even in the maintained sector. CCMS mentioned that when it gave evidence. That organisation would say quite openly that it took it a period of time to build up its capacity in the sector and to build up the trust and confidence of its own sector to do a job.

7717. Bearing in mind the points that members have rightly made about the controlled sector being behind some of the other sectors, we want to accelerate the process as best we can. If, as part of that, the controlled sector could learn lessons and draw on the experience of other sectors that have trodden the path before them, that would be a good thing.

7718. Mr Lunn: What product has come out of the group?

7719. Mr Stewart: There is product in the sense that there are minutes of meetings and that the group has a work plan. I cannot say that they have signed off particular products, such as a constitution or a business case. I do not think that the group is at that stage yet. However, perhaps sensibly, the first thing that the group has done is to scope the task, and it is now engaged in taking that forward.

7720. Mr Lunn: How many people were invited to join the body?

7721. Mr Stewart: I would have to check that information and come back to you. I think that the original list of invitations may have contained around 40 or 50 names, although not that many people turned up on the first day, largely because we picked a daft day for the first meeting. Attendance at the second meeting was better.

7722. The Chairperson: I want to conclude this line of questioning so that we can move on.

7723. Mr O’Dowd: If memory serves me right, on several occasions before summer recess, departmental officials, including Chris, asked Committee members if we had any names that we thought should be included on the invitation list. If any member suggested names and those people were not invited to the group’s meeting, that would be a matter of concern. It has been indicated that, so far, no one has been turned away.

7724. Another aspect that I found interesting is that certain parties here have lobbied, quite correctly, for a sectoral support body for the controlled sector, because there was a demand for that in the sector. It appears from the attendance thus far that there has been a muted response from that sector. If the demand was as high as some people in this room tell me it is, I would have expected people to be kicking the door down to get in. That does not seem to be the case.

7725. If the Department has gone about this the wrong way or made errors in the invites that it sent out, that must be corrected. If the Department can support the group, it must do so in a professional manner. However, I get the impression that some members want the controlled sectoral support body to be a subcommittee of this Committee. That is not what any of the sectoral support bodies are about. They need to be free-standing and independent-thinking. They need to lobby for their sector and have an advocacy role. There is no point in having a subcommittee of this Committee.

7726. To return to my original point; if any member put forward names of people who they felt should be invited to the first meeting and those people were not invited, that situation should be rectified. The debate today has opened questions in my mind about how much of a demand there is in the controlled sector for this body.

7727. The Chairperson: I think that that is more of a reflection of the way in which the controlled sector has conducted its business. It is more interested in the job that it is doing, rather than a preservation of a particular structure or ethos. Other sectors can become so embroiled in their ethos or structures that they become more important than the business that they are about. It is like comparing apples with oranges. It is a matter of how particular sectors view themselves. That is why a huge amount of work needs to be done with the controlled sector, because it has had to be inclusive. Controlled schools have not had the luxury of saying that they will accept only certain children. That sector is the real integrated sector of education in Northern Ireland, but it has never been given the opportunity to have that reflected in how it carries out its business.

7728. I ask Mr McCrea to ask his question, and then we must conclude this discussion. If we continue at this rate, members will be here until the same time as they were last night. Members, the choice is yours; the matter is entirely in your hands. I can only guide and direct, but if members want to arrive home late two nights in a row, that is fine. They can text home to say that they will be late again tonight.

7729. Mr B McCrea: I take your point, Chairperson. It may be that we have to put the discussion of the sector on the agenda, because what John has just said shows that there is a profound misunderstanding of why we have to deal with the issue. My response to Trevor’s point will be the same as my response to John’s. In certain other sectors, there are people who are highly focused and highly organised. They, quite rightly, have their own agenda, and they know where they are going. Notably, the Catholic maintained sector was able to amalgamate and reorganise its schools to get a particular level of pupils. The controlled sector refused, was unable to, or could not come together. As a result, when decisions were eventually being considered under the Bain proposals, there was one large, well-organised Catholic maintained school and two or three small controlled schools. Those schools would, therefore, fall foul of the efficiency issues.

7730. The difficulty that arises when trying to organise the controlled sector is that it is so diverse and operates in such a huge range of areas that it is does not have a common position on many matters. The fundamental problem is that the sector will end up being squeezed by other sectoral bodies if it does not organise itself.

7731. I will finish on the issue of whether people from other sectors should be involved in the sectoral group for the controlled sector. One could say that we should accept views from outside and learn lessons from others people’s experience, but, as the Chairperson pointed out, it would be strange if the Council for Catholic Maintained Schools was dominated by people from outside the sector. Equally, I note in the letter from the Irish-medium schools to the Minister that they are concerned that school governors maintain the ethos of their schools. That is reasonable. The point that I am making is that the controlled sector is really large and educates a lot of our young people, but, for historic reasons, it is not able to compete with its sectoral counterparts. We are trying to find a solution to that problem.

7732. I suggest that the problems facing the controlled sector be put on the agenda. Chris uses the phrase “with respect", and we are being nice and friendly with each other today, but, in my opinion, this group will not resolve the problems that we have with the controlled sector, no matter how hard the individuals work.

7733. The Chairperson: Chris, could you convey back to the group our suggestion that it would be helpful see either the chairperson of boards of governors or parent governors from the sector among its membership. We know that members of the Transferor Representatives’ Council (TRC) are on the group, as are principals from controlled schools. Concerns have been raised, and the Committee will urgently return to the issue.

7734. We now begin our clause-by-clause scrutiny of the Education Bill. Before we proceed, I will try to ensure that Committee members have in front of them the appropriate documents so that we can make this process as seamless as possible. I know that you have struggled with me as the Chairperson, and I apologise for my inadequacies, but I have struggled with the process as much as you have. Let us try to set the scene.

Destination is lunch for 1.00 pm; how we get there is entirely in your hands.

7735. The Department has proposed amendments on its own behalf and at the request of the Department for Employment and Learning. Those are set out in the document in the relevant clauses as proposed departmental amendments. The Education Bill amendments are in the document before us.

7736. At last week’s meeting, the Committee agreed and instructed the Clerk to prepare draft Committee amendments, which the Committee may wish to consider, on clauses on which some members canvassed the possibility of amendments during the Committee’s scrutiny of the Bill. Those are listed in the document as Committee amendments — if appropriate. If the Committee wants to recommend amendments in those areas to the Assembly, we will have draft wording before us today and the Committee can take a decision on them.

7737. Additional documents are available. At tab 4, item 1, there is a copy of the Minister’s response of 16 September to the Committee’s letter of 9 September, which included the issues of ESA membership, representative membership, and local committees. At tab 4, item 2, there is a copy of the Department of Education’s amendments. That table is useful because members will recall that the way that it is set out gives us —

7738. Mr B McCrea: Mervyn, you lost me about 30 minutes ago.

7739. The Chairperson: We are looking at tab 4 in the black folder. There is a document entitled ‘Education Bill Amendments’. Following that, there is a response from the Minister, which is useful information to have in front of you.

7740. Mr B McCrea: Is that the letter dated 16 September?

7741. The Chairperson: Yes. Then there is the letter that deals with outstanding responses. Then there is tab 2.

7742. The Committee Clerk: Tab 2 is a very useful document because it outlines an explanation of the numerous departmental amendments.

7743. Mr B McCrea: What is in the white folder?

7744. Mr O’Dowd: Just follow my lead, Basil. If I agree with something, you go with it. [Laughter.]

7745. The Chairperson: Follow my nod.

7746. Mr B McCrea: Go easy on me, John.

7747. The Chairperson: Tab 2 — that is it. We are getting there.

7748. Mr McCallister: You told us that yesterday, John.

7749. The Chairperson: The two documents that you need to have in front of you are the ‘Education Bill Amendments’ — exhibit a — and tab 2, or exhibit b, and, of course, the Bill.

7750. OK. I believe that that is all that we need. Chris, I ask you to take a place in the public gallery. Patricia Casey, from the Bill Office, is present to advise us on any technical issues that need to be addressed. You are very welcome, Patricia. I apologise that I did not welcome you earlier.

7751. I refer members to the Education Bill amendment document. I remind you of the procedure in the Committee Clerk’s note. It advises that in relation to each clause and schedule where there is no proposal to amend, the Committee will state whether it is content with the clause or schedule as drafted.

7752. Where an amendment is proposed by the Minister of Education, the Committee will decide whether it is content with the amendment that is proposed. Depending on whether the Committee is content with the amendment, it will indicate either that it recommends to the Assembly that the clause be amended as proposed by the Minister — or, if applicable, as proposed by the Committee — or that it does not recommend an amendment. In that case, the Committee would indicate that it is content with the clause as drafted.

7753. Are members content that we proceed? Are there any questions before we begin our clause-by-clause, schedule-by-schedule scrutiny of the Bill?

7754. Mr B McCrea: I want to make a brief statement for the record. The Ulster Unionist Party will attempt to be as constructive as possible in the clause-by-clause scrutiny. It does not wish to be seen to be trying to block the creation of the ESA as a streamlined oversight body.

7755. We will not, however, agree to the Minister’s proposals for a highly centralised, bureaucratic body that undermines the autonomy of boards of governors and sectoral representatives. With that caveat, we will try to perform a constructive role in the clause-by-clause scrutiny of the Bill.

7756. The Chairperson: OK. If there are no further comments, we shall proceed to clause 1.

Clause 1 agreed to.

Schedule 1 (The Education and Skills Authority)

7757. The Chairperson: Members, on this occasion only we will proceed not to the next clause but to schedule 1; we must deal with it before we can proceed to clause 2. The first decision is the number of members of the education and skills authority (ESA). The Minister proposes that schedule 1 be amended as follows: In page 31, line 15 leave out “7 or more than 11" and insert “11 or more than 14".

7758. If any member wants to propose a higher number, a Committee amendment has been drafted to that effect. We would take a decision on that amendment first. If the Committee decides to recommend a higher range than that which the Minister proposes, the Committee will not consider the Minister’s amendment or the existing wording of the Bill.

7759. If a member proposes a higher range than 11 to 14 members, the Committee’s amendment will be to leave out, “7 or more than 11" and to insert the proposed new number.

7760. Mr D Bradley: Should that read “or no more than"?

7761. The Chairperson: Sorry, it should be “no more". Therefore the question is —

7762. Mr B McCrea: No, you are correct.

7763. The Chairperson: It is not “fewer"; so the question is that the Committee recommends to the Assembly that paragraph 2(1)(b) of schedule 1 be amended as the Minister proposes. Members must decide whether they accept the Minister’s amendment to increase membership to 14 or increase that number again.

7764. Mr Lunn: I am content with the Minister’s amendment.

7765. The Chairperson: Are there any other proposals?

7766. Mr D Bradley: I would like a higher number.

7767. The Chairperson: Do you have a number in mind?

7768. Mr D Bradley: I propose “no fewer than 15 and no more than 20".

7769. The Chairperson: I have a proposal from Dominic that membership should be 15 to 20. That is seconded by Basil McCrea. I beg to move

7770. That the Committee recommend to the Assembly that the schedule be amended as follows: In page 31, line 15 leave out “7 or more than 11" and insert “no fewer than 15 and no more than 20".

Question put,

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

7771. Mr Lunn: If the Committee wants to suggest a further amendment to schedule 1, must that be done at a different stage?

7772. The Chairperson: Yes; that would be a party amendment or a Member’s amendment at Consideration Stage in the House. Is that correct, Clerk?

7773. The Committee Clerk: It is open to a member to raise an issue now on a further part of that schedule, but the main areas of discussion have been identified in the document being considered by the Committee.

7774. Mr Lunn: The amendment that we have just accepted would mean that there would be 11 councillors on the ESA. Now may not be the time to raise it, but I intend to propose an amendment at Consideration Stage to amend that. Is it appropriate to suggest an amendment now that the Committee might adopt?

7775. The Chairperson: Trevor, you are entitled to propose an amendment; it is up to the Committee to second and approve it. If that attempt is unsuccessful, you can still table it for Consideration Stage in the House.

7776. Mr Lunn: I beg to move

7777. That the Committee recommend to the Assembly that the schedule be amended as follows: In page 31, line 19, leave out

“that at any time a majority of members are councillors (within the meaning of the Local Government Act (Northern Ireland) 1972 (c.9)" and insert “at any time one third of members should be councillors (within the meaning of the Local Government Act (Northern Ireland) 1972 (c. 9)"

7778. The Chairperson: Members have a proposal from Mr Lunn. Does anybody second it? Nobody seconds the proposal; therefore, it falls. However, it has been recorded.

7779. The Committee Clerk: The proposal must be put to a vote to allow members to indicate that they are against it.

7780. Mr O’Dowd: It was not seconded.

7781. The Chairperson: It was not seconded.

7782. The Committee Clerk: It does not need to be seconded. If a member proposes an amendment, it can be put to a vote.

7783. Mr B McCrea: Before you do that, I am not averse to the amendment, but it has come as a bit of a shock, and I have not had a chance to consider it. I do not want to be recorded as voting against it because there may be some merit in it, but it has only come to me now so I cannot make a judgment.

7784. The Chairperson: John, can you clarify the position?

7785. The Committee Clerk: The Committee could agree that it noted Mr Lunn’s amendment, whether or not it wishes to bring forward a Committee amendment to put it into effect today. It depends on whether a majority of members would support Mr Lunn’s amendment. If not, that should be recorded now, and Mr Lunn can then raise it, from his party’s point of view, as a Committee amendment.

7786. The Chairperson: OK, we are clear on that. It can be noted by the Committee, or members can vote on Trevor’s proposal.

7787. The Committee Clerk: The effect would be to remove “majority" and replace it with “one third". If members wish to consider voting on that now, that is open to the Committee.

7788. The Chairperson: OK, members, those are the only two options: either to note the amendment or to vote on it.

7789. Mr O’Dowd: For the record, Sinn Féin would be opposed to that amendment. How will that be known if we do not vote against it?

7790. The Chairperson: I will put it to the Committee that there is a proposal that “one third" replace “majority" so that it reads: “at any time one third of members".

7791. Is that correct?

7792. Mr Lunn: Yes. I would be content for the Committee simply to note the fact that I have proposed the amendment rather than force a vote. Basil is right that I have pulled it out of the blue, although everyone had probably seen it coming in some form or other after the past 18 months. I am content to have it noted.

7793. The Committee Clerk: The question is, as I said earlier, whether the Committee wants to bring forward for consideration in early October an amendment that would go before the Committee when the detailed wording has been worked out, although that amendment would not be in the Committee’s report. Members would then have time to reflect before it was brought forward. In that case, members should indicate whether they vote yes or no to that proposal.

7794. The Chairperson: I am not clear what was said there. We have these amendments, as well as a report to produce for the House; therefore we have to make a decision. We have no more time in which to consider any amendments after today.

7795. The Committee Clerk: That is right, but the report can state that the Committee noted a proposal from a member this morning —

7796. The Chairperson: Yes, but that is a different thing.

7797. The Committee Clerk: — and that the Committee agreed, by majority, to draft an amendment that would be considered after the report had been issued. It is possible to do that.

7798. The Chairperson: How can we draft an amendment if we conclude our consideration of amendments now and the report goes before the House? Surely all we can do is note that a concern was raised that “majority" should be replaced with “one third". From what I see, there will not be support for Trevor’s proposal.

7799. The Clerk of Bills: There is another option. As well as recommending the wording of an amendment and agreeing it today, the Committee could recommend to the House that it agreed an amendment to say such and such, but that the wording has not been agreed. I think that that is the point that the Committee Clerk is trying to make. It is not ideal; obviously it would be preferable to agree the wording of the amendments today, but as the proposal was made only today, members may need more time to discuss it. The fall-back option is to agree to bring forward an amendment on that basis, but not to agree the wording of it today, because there is no time. That would be stated in the report, and the Chairperson could address it when briefing the House at Consideration Stage. That is an option.

7800. Mr D Bradley: Can parties table amendments during Consideration Stage?

7801. The Clerk of Bills: Yes. Up to 9.30 am on the Thursday before Consideration Stage, whenever the Minister brings that forward, any Member, Committee or the Minister can table an amendment. Members may wonder how they would find out about that if the report had already been printed. The Bill Office will issue a notice of amendment for any amendment that is brought forward, and that will appear in Members’ pigeon holes. The Marshalled List, which is the final list, is published after 9.30 am on the last Thursday before Consideration Stage. Chairperson, you are correct to want to agree as much as possible today, but if members do not have the wording of an amendment or have not thought it through, they can use that system as a fall-back.

7802. The Chairperson: The proposal is for an amendment to remove “majority" and replace it with “a third". Is the Committee minded to consider such an amendment?

7803. Mr Craig: I would have huge difficulty with such an amendment. I do not like bodies that are not democratically accountable, and I really do not like outside bodies that do not have a majority of elected members. The amendment would create a democratic deficit. For 30 years, Northern Ireland was run with a democratic deficit, and that must change. I do not see the rationale for the amendment. I am totally opposed to it.

7804. The Committee Clerk: If the Committee were to decide by a majority vote that it wished to return to the amendment in early October, the amendment could be put on that day. On that Wednesday in October, the Committee may reject the amendment, and it would be left to Mr Lunn to decide whether he wished to table it on behalf of the Alliance Party. The Committee is to decide now whether it wishes to note the amendment from Mr Lunn and whether to put it down for further consideration after the Committee’s report has been issued. The amendment will be decided on that day.

7805. The Chairperson: Do Members wish to note the amendment in the terms that the Committee Clerk outlined?

Question put.

The Committee divided: Ayes 1; Noes 8.

AYES

Mr Lunn

NOES

Mr D Bradley, Mrs M Bradley, Mr Craig, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

7806. The Chairperson: John McCallister and Basil McCrea have abstained.

Question accordingly negatived.

7807. Mr Lunn: For the record, does that mean that the amendment will not be noted formally but that it will appear in the record of today’s meeting?

7808. The Committee Clerk: Yes; the vote on it will be recorded, but the amendment was not agreed.

7809. The Chairperson: Members will recall the Committee’s discussions on how the ESA membership could be made representative and the request to the Minister to consider an amendment to paragraph 2(2) of schedule 1. The Minister is not minded to propose an amendment to that part of the Bill, and we have a draft wording if Members wish to consider a Committee amendment.

7810. Mr D Bradley: I would accept the Committee amendment if the word “proportionately" were inserted before “representative". The amendment would then read: “and: (c) that the members, as a group, are proportionately representative of the community in Northern Ireland".

7811. The Clerk of Bills: That would make it a completely different amendment; that wording is much more precise. The Bill has been drafted in keeping with a provision in the Northern Ireland Act 1998. The Committee has received legal advice on the meaning of the phrase “representative of the people of Northern Ireland" and its various aspects. Adding the word “proportionately" would be a completely different matter.

7812. Members also need to consider the amendment in the context of the wording of the schedule, “so far as practicable to secure". Members should take into consideration the difference between “so far as practicable" and “proportionately representative", which suggests a precise number.

7813. The Chairperson: Dominic, why would “proportionately" give the result that you desire? I assume that your desired outcome is that the education and skills authority is democratically or electorally representative of Northern Ireland.

7814. Mr D Bradley: Yes, I would like the ESA’s membership to reflect accurately the various political communities in Northern Ireland.

7815. The Committee Clerk: There is an option of considering an amendment to paragraph 2(2) of schedule 1, which the Committee discussed following advice about the definition of the phrase:

“representative of the community of Northern Ireland".

7816. The Chairperson: Would that wording define the phrase?

7817. The Committee Clerk: Yes.

7818. The Chairperson: That would give the same outcome. We are working on the assumption that the Committee would approve that, but we do not know because it has not yet been put it to the Committee. Do members have views on that?

7819. Dominic would prefer the word “proportionately" qualifying “representative". Members have heard the comments from Patricia and John; are there any other views? Defining “proportionately" could create legal difficulties.

7820. The Clerk of Bills: In order to effect that, you may need further amendments to define what is meant by “proportionately".

7821. Mr Lunn: That is more or less what I was going to say. It could not be left as a one-word amendment; it would have to be developed. If I heard Dominic correctly, he wants political and religious proportionate representation of the membership. The proposed Committee amendment to paragraph 2(2) of schedule 1 does not refer to either of those things; it refers only to skills and geography. The term “a broad geographical range" appears. I do not think that that gets us over the hurdle.

7822. Mr D Bradley: If the majority of members of the board are to be councillors, I would like that body of councillors to be proportionately representative of political opinion in Northern Ireland.

7823. The Chairperson: The Minister’s intention has been that those members would be appointed on merit, not on proportional representation of the community that they serve.

7824. The Committee Clerk: If the majority of the Committee wants that to be considered, we could treat it in the same way as the previous proposal. We could note the proposal and bring it back to Committee after advice about the implications of such words being included. It is a question of whether the Committee is minded, at this point, to accept the current wording. If the majority of the Committee wishes, it could be amended later to include the word “proportionately". However, we would have to get legal advice, which would be available some time in October, after the Committee’s report has been published. Of course, the point that was raised would be noted in the report.

7825. Mr O’Dowd: Dominic’s proposal should have been made much earlier than now so that there could have been a discussion about it and questions around the legal context and everything else. To throw it in now causes major difficulties in trying to assess it.

7826. I have a question about the Committee’s proposed amendment to paragraph 2(2) of schedule 1, which proposes that members of the ESA, as a group, be representative of the community in Northern Ireland. Does that rule out people from England, Scotland, Wales and the Twenty-six Counties? What about the European context? It may be off the wall to suggest that people will come over for board meetings for which they will receive £8,000 each year, but is it legally competent to include such an amendment? It could rule out people from other places.

7827. The Clerk of Bills: There would need to be some consideration of the equality implications of including that wording in relation to introducing a political element.

7828. The Chairperson: Of what element? Of the element to which Dominic referred, or to —

7829. The Clerk of Bills: The “proportionately" element.

7830. The Chairperson: What about the other comment that was made about defining the phrase

“representative of the community in Northern Ireland"?

7831. The Committee Clerk: The proposed Committee amendment to paragraph 22 of schedule 1 tries to define precisely what is meant by “representative of the community in Northern Ireland".

7832. Mr O’Dowd: We are talking about a management body. People will be asked to join the board of a management body of a publicly funded organisation. Does that wording rule out people from England, Scotland, Wales and the Twenty-six Counties, and is that legal? If it is legal, I have no argument, but we need to check that out.

7833. The Committee Clerk: It is a legal point. We can check that out if members wish us to do so. Any legal advice would not be available for the Committee’s deliberation before the publication of the report. It would be available post-report, as I have said. It is a matter of whether members are prepared to look at the proposed amendment to paragraph 2(2) of schedule 1, bearing in mind the reservations.

7834. The Chairperson: Did you propose that, Dominic?

7835. Mr D Bradley: Yes.

7836. The Chairperson: Do I have to put that proposal to the Committee?

7837. The Committee Clerk: Yes.

7838. The Chairperson: Is there someone to second it?

7839. The Committee Clerk: It is a matter of whether the Committee wants to take that to a vote.

7840. Mr D Bradley: If there are legal implications to what I proposed, I am happy to wait until October, so that the Committee has had the chance to be briefed and informed about those legal implications.

7841. The Chairperson: If I am right about this, we would then request clarification of the legal competency of an amendment that is worded: “that the members, as a group, are proportionately representative of the community in Northern Ireland". John wants clarification of whether that excludes anybody outside of Northern Ireland. Does that mean that we are not content with paragraph 2(2) of schedule 1 as drafted? That is the decision that we must make, because it was only a Committee amendment.

7842. The Committee Clerk: The Committee can make a decision on the schedule as drafted if it wants to. The further amendments could be considered after we receive legal advice in early October.

7843. The Chairperson: We cannot include that amendment in our report because of the printing deadline, but that does not prevent the Committee from bringing forward such an amendment before the Consideration Stage.

7844. The Committee Clerk: The Committee can, if it wishes, further amend the amendment in early October — providing the amendment is accepted now — to insert the word “proportionately", or it can change paragraph 22. It would be noted in the report that an issue was raised and that the Committee would be returning to it. Whether that manifests itself in a further amendment is a decision for the Committee in October, in light of advice that it receives.

7845. The Chairperson: In light of that, the Committee is not content with paragraph 2(2) of schedule 1 as drafted, because it is asking for an amendment to be considered. Surely, that is the logical conclusion.

7846. Mr Lunn: We have not accepted or voted on the original amendment in the first place.

7847. The Chairperson: That is what I am saying. However, we have had a discussion and, although it has not been put to a vote, it seems that there is agreement among members that we should receive clarification on the legal competency of a possible amendment, which would read; “the members, as a group, are proportionately representative of the community in Northern Ireland." That advice will take into account the issue of proportionality and the issues raised by John O’Dowd about whether that excludes anybody from outside Northern Ireland.

7848. Mr Lunn: Surely we are going to have to vote on everything today, so we must vote on the original amendment.

7849. The Chairperson: That is why I am saying; we are either content or we are not. All I am trying to say is that the Committee cannot say that it is content when it is getting clarification on the legal competency of an amendment. Logic follows on some of these things. My advice is that the Committee registers that it is not content but adds a caveat that we are getting clarification on the amendment, as we have discussed.

7850. Mr B McCrea: I would have thought that we are content with the amendment as drafted, subject to —

7851. Mr Ross: We cannot be content with the schedule as drafted in the Bill if we are considering an amendment. We have to decide whether we are content with it as drafted. Well, no, we are not, because we are considering an amendment.

7852. The Chairperson: That is the Question. I put it to the Committee: is the Committee content with paragraph 2(2) of schedule 1 as drafted?

7853. Mr O’Dowd: We will just abstain. It will save a lot of hassle.

7854. The Chairperson: So you register that. It has to go to a vote then. So we are not content?

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Lunn, Mr Ross, Mr Storey.

7855. The Chairperson: I note that John O’Dowd and Michelle O’Neill have abstained. We are still on paragraph 7 of schedule 1.

7856. Mr B McCrea: Are we not voting on that amendment then?

7857. The Chairperson: No; we cannot vote on it until we receive the relevant legal advice.

7858. Mr B McCrea: Although we may want to amend the amendment, would we not be better to say — because we want it on the record — that we at least want a board that is representative of the community. I would like that to be included in the report. I am quite happy to amend it subsequently if we get different advice.

7859. The Chairperson: That means that we make a decision, and the Question is then whether the Committee agrees its intention to bring forward a Committee amendment or amendments to paragraph 2(2). It is only an intention to bring forward an amendment.

7860. Mr B McCrea: As long as it is in the report, I am happy.

7861. Mr O’Dowd: Have we not just voted and made a decision?

7862. Mr B McCrea: I thought that there was a series of decisions. First, you decide if you are happy; then you decide if there is an amendment.

7863. The Chairperson: Basil, it complicates the situation. We have agreed that we are not content.

7864. Mr B McCrea: I will make life easy; if you are happy, I am happy.

7865. The Chairperson: The Committee will receive legal advice on the proposed Committee amendment that the ESA members, as a group, are proportionally representative of the community in Northern Ireland. Then we can make a decision.

7866. Mr Lunn: Chairman, you made it very clear last week that today was D-Day, and we have to either accept or reject each of the amendments, no matter where they come from. The Committee has to take a view on them. However, that does not appear to rule out that Committee expressing some reservations and coming back to it from a legal standpoint. It does seem a bit odd that we are now turning down our own amendments.

7867. The Chairperson: In fairness, that is only because it was introduced now as opposed to last week or six weeks ago.

7868. Mr Lunn: We are going to come up against this a lot of times.

7869. The Chairperson: Yes; it is going to make it a very long day.

7870. Mr Lunn: You were adamant about your instructions last week. I was not sure at the time whether you were simply laying down ground rules to make us concentrate —

7871. The Chairperson: I think that I was.

7872. Mr Lunn: — or whether it was a legal requirement that we had to take a firm decision.

7873. The Chairperson: What it proves, Trevor, is that it fell on deaf ears. All right; happy enough with that?

7874. Mr Lunn: All right; yes.

7875. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the schedule be amended as follows: in page 33, paragraph 7, line 7, after ‘may’ insert

‘to the extent that the Department may by regulations provide,’

7876. In page 33, paragraph 7, line 8, insert new sub-clause (2) as set out below and re-number existing sub-clauses (2) and (3) accordingly

‘(2) Regulations made under sub- paragraph (1) shall include those functions which may be exercised by each committee.’

7877. In page 33, paragraph 8, line 20, after ‘under’ insert: ‘paragraph 7 and’

7878. The Committee will recall that it also raised with the Minister the option of an enabling provision for regulations on the ESA committees, in the light of the concerns of some members and key stakeholders about local committees. The Minister’s letter of 22 September 2009 makes it clear that she does “not propose to make regulations". The Committee agreed in principle that it needs clarity, certainty and confidence — those are the three words that were used repeatedly — on this matter. The Committee amendment would place a duty on the Department in so far as it proposes to add the words:

“to the extent that the Department may by regulations provide,"

7879. The issue was that the regulations were required to give that clarity, certainty and confidence.

7880. At schedule 1, page 33, paragraph 7, line 8 we would insert a new sub-clause (2) that would read:

“Regulations made under sub-paragraph (1) shall include those functions which may be exercised by each committee."

The Question is that the Committee recommends to the Assembly that schedule 1, paragraph 7 be amended as set out in the amendments. Are there any comments? John O’Dowd and Michelle O’Neill have indicated that they will abstain.

The Committee divided: Ayes 9, Noes 0

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey

Question accordingly agreed to.

7881. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: In page 36, paragraph 22, at end insert

“ ‘Representative of the community in Northern Ireland’ "

23.— (1) In this Schedule, and without prejudice to the generality of the words, a membership ‘representative of the community in Northern Ireland’ shall in particular include–

(a) persons with experience of the controlled, maintained, grant-maintained integrated, Irish-medium and voluntary grammar school sectors; and,

(b) persons from [a broad geographic range of] local government districts, where ‘local government district’ has the same meaning as in the Local Government (Boundaries) Act (Northern Ireland) 2008."

This amendment has an effect on what we have already agreed in respect of paragraph 2 of schedule 1. The legal advice to the Committee highlighted the possibility of inserting a definition at paragraph 22 of schedule 1 to make clear the factors that the Committee considers the Minister should have particularly in mind in relation to appointments to the ESA, so that the ESA members, as a group, are representative of the community in Northern Ireland. Adding a definition to paragraph 22 is an option if members wish to consider it.

7882. The amendment gives rise to the issue of the legal competency of the words “a broad geographic range of". Just as we did with the proposal earlier to add the word “proportionality", we have to consider the legal competency of this amendment.

7883. The Clerk of Bills: The amendment is consequent to the one that you have just parked. It cannot be decided on until members decide on the other one.

7884. The Chairperson: The Question is whether we are content with schedule 1, paragraph 22, as drafted.

7885. The Clerk of Bills: You may be, depending on the advice that you receive.

7886. The Chairperson: Yes, but, at this moment in time, we are not content.

7887. Mr D Bradley: It is pending legal advice.

7888. The Chairperson: I will keep it simple; we are not content now because we are considering an amendment the legal competence of which has yet to be verified.

7889. The Committee Clerk: What we are saying is that we will bring the amendment back to members in light of the instruction given on the earlier amendment to paragraph 2 of schedule 1 that we seek legal advice on any changes.

7890. Mr O’Dowd: I assume that that legal advice will also consider the definition of “community" as outlined in the amendment, considering that there are a number of issues around section 75 of the 1998 Act. The amendment states that the membership should be representative of the community, but it goes on to mention only educational communities, backgrounds or sectors. To my mind, the two matters are not comparable.

7891. The Chairperson: I understand what you are saying. On one hand, the amendment states that membership should be representative of the community of Northern Ireland, but then the amendment goes on to specifically define sectors.

7892. Mr O’Dowd: Education sectors are being defined as the community. I do not know if that is competent.

7893. The Committee Clerk: That can be checked and legal advice can be sought, as with the amendment that was parked earlier.

7894. The Chairperson: Let us go back to the Question about paragraph 22, so that we are all clear — although I do not think that we are very clear on any of this. The Question is that members are not content with the Committee amendment to paragraph 22 of schedule 1.

7895. Mr O’Dowd: We are content with it.

7896. The Chairperson: Some members are content, so we will put it to a vote. If members are not content, that will mean that the Committee amendment will be considered for its legal competency and brought back to the Committee.

7897. Question, That the Committee is content with schedule 1 as drafted.

The Committee divided: Ayes 2; Noes 9.

AYES

Mr O’Dowd, Mrs O’Neill

NOES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey

7898. Mr Lunn: I thought that we had to say that we are not content with paragraph 22 of schedule 1 in the light of the previous decision.

7899. The Chairperson: These things are not always straightforward. I hope that I am not going to throw a spanner in the works, but we have not gone through paragraphs 1, 2 and 3; rather, we have voted only on certain paragraphs of schedule 1.

7900. Mr B McCrea: I agree; I was going to ask you that.

7901. Mr D Bradley: We are dealing only with the paragraphs to which there are proposed amendments. If there were no amendments to the other paragraphs last week, we do not need to deal with those this week.

7902. The Chairperson: Am I not meant to ask the Committee, for the record, whether it is or is not content with all those items?

7903. Mr D Bradley: We did that last week.

7904. The Chairperson: What about the other paragraphs of schedule 1? Does that include the whole schedule?

7905. The Clerk of Bills: Once the Committee has considered all the amendments to the different paragraphs of schedule 1, a Question is asked at the end about the schedule as a whole. If any amendment has been agreed, the Committee would agree the schedule as amended. If no amendments are agreed, the Committee would agree the schedule as drafted, unless the Committee has some alternative.

7906. The Chairperson: The Question is that the Committee recommends to the Assembly that schedule 1 in its entirety be amended as proposed in the Minister’s amendments and the Committee’s amendments set out as we have already agreed.

7907. The Clerk of Bills: You cannot come to that Question yet because you have parked some matters relating to the schedule.

7908. The Chairperson: So, we cannot take a decision on schedule 1?

7909. The Committee Clerk: It is fair enough if you put a Question to members asking them whether they are content with the other paragraphs of schedule 1. If there is a proposal from members that they want to deal with the other paragraphs of schedule 1 to say that they are content with everything else that has not been the subject of proposals this morning, that is fair enough to put that to members.

7910. The Chairperson: I am worried that we are getting very confused about this. We have dealt with the amendments to the paragraphs of the schedules; however, we have not said whether we are content with the other paragraphs of the schedules. That worries me.

7911. Mr D Bradley: Surely, Chairman, we did that last week.

7912. The Committee Clerk: We did not take any final decisions last week. Today is when we mop up all final decisions.

7913. The Clerk of Bills: If any member has a difficulty with some part of schedule 1 that is not covered by any one of those amendments, they can either bring forward an amendment or vote against the final Question. Ultimately, members must make a decision on each of the schedules and clauses. If there are parts of the schedule that are not represented on the following few pages, then members must make an individual decision and then take a collective vote.

7914. The Chairperson: Do members have any comments on that?

7915. The Committee Clerk: If members now wish to vote that they are content with the remaining paragraphs of schedule 1, which we dealt with this morning, they may do so.

7916. Mr Lunn: Why would we not?

7917. The Chairperson: That is my opinion. It makes it very simple. Other than the elements of schedule 1 that we have agreed to seek legal clarity on or amendment to, are members content with the other paragraphs of that schedule?

7918. The Committee Clerk: You have proposed that, Chairperson, so members may wish to signal whether they agree.

7919. The Chairperson: I just want to be sure that members know where we are at. Schedule 1 is on pages 31 to 36 of the Bill, and it contains 22 paragraphs. I do not want anyone to think that there was an element of that schedule that they did not agree with. We have gone through the entire Bill, and five lever-arch files prove that.

7920. Mr O’Dowd: We should start again.

7921. The Chairperson: We could start again; that is what worries me.

7922. Are members agreed that they are content with schedule 1, apart from the paragraphs that we agreed actions on? I note that Basil McCrea and John McCallister have abstained.

The Committee divided: Ayes 9, Noes 0

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey

Clause 2 (Functions and general duty of ESA)

7923. The Chairperson: Members will recall the Committee’s consideration of adding the word “mental" to the list of ESA duties in clause 2(2)(a) and clause 2(2)(b). This is our final consideration and decision, starting with paragraph (b). Our amendment, which is an amendment to the amendment that was tabled by the Minister of Education states:

“that contribute towards the spiritual, moral, cultural, social, mental, intellectual and physical development of those for whom those services are provided;"

7924. It followed on from a discussion that took place last week. The Question is whether the Committee recommends to the Assembly that the clause be amended as set out above.

7925. Mr O’Dowd: In principle, it is difficult to argue against that amendment, but if something is included in a Bill, it must be ensured that it is competent, and the ripple effects of it must be considered. I note from the Minister’s letter that she is writing to the Minister of Health, Social Services and Public Safety, Michael McGimpsey, to seek his views on what effect the Department of Education’s inclusion of that amendment would have. The Committee would be wise to wait for that response.

7926. The Committee Clerk: This morning, advice from the Assembly’s Legal Services established that the amendment is competent and that it has meaning. Indeed, the word “mental" was included as part of a collection of words in English legislation; the Education Act 2002 and the Education Act 2005. Mental and physical development of children and young people were grouped together.

7927. Mr B McCrea: I would so propose, Chairperson.

7928. The Chairperson: It is proposed that the amendment be put forward by the Committee. Dominic Bradley has seconded it.

7929. Mr Lunn: Do we need to go through this procedure?

7930. The Clerk of Bills: You do not need a proposer when considering amendments to a Bill; the Committee either agrees the amendment by acclamation or pushes the amendment to a Division.

7931. The Committee Clerk: As long as a member is signalling that he or she wants to push it to a vote.

7932. The Chairperson: Are members content with the amendment?

7933. Mr O’Dowd: We will have to abstain if there is a vote. I want to hear what the Health Minister has to say; if he agrees with it, I have no difficulty with it.

7934. Mrs O’Neill: In her letter of 22 September, the Minister says that she wants to accommodate the Committee’s wishes on the matter and that she will write to the Health Minister. She says that:

“I consider that the best approach would be to place a statutory duty on the ESA to co-operate with the Regional Health and Social Services Board and Health and Social Services Trust in promoting the mental health of children and young people."

7935. The Chairperson: Michelle is referring to the final paragraphs of the Minister’s letter.

7936. The Committee Clerk: The Committee can note that and put it on the record. The Minister may bring forward an amendment in her own right.

7937. Mr O’Dowd: I would be happy enough to go to the vote.

7938. The Committee Clerk: A proposal is being put that the word “mental" be added at clause 2, page 1, line 15.

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, M Ross, Mr Storey.

7939. The Chairperson: John O’Dowd and Michelle O’Neill have abstained.

Question accordingly agreed to.

7940. The Chairperson: I want to be clear about this: the Department proposed an amendment to clause 2(2)(b), but we have proposed our own amendment that amends the Department’s amendment, so we do not have to put the Question on the departmental amendment.

7941. The Committee Clerk: That amendment amended clause 2(2)(b). We have to go over clause 2(2)(a) again if we want to repeat it.

7942. The Chairperson: That is what I am saying — we do not need to.

7943. Mrs O’Neill: What are you saying about the departmental amendment? That amendment clarifies the duty that the ESA will have in relation to youth services, which is similar to the provision on schools, so we have to vote on that as well.

7944. The Chairperson: Our amendment includes all the wording in the Department’s amendment and inserts an additional word.

7945. The Committee Clerk: That amendment has just been agreed.

7946. The Chairperson: The Committee has agreed an amendment that adds the word “mental" to the Department’s amendment — “that contribute to the spiritual, moral, cultural, social, intellectual and physical development of those for whom those services are provided" — therefore we do not need to vote on the Department’s amendment.

7947. The Committee Clerk: The proposal is that clause 2(2)(a) be similarly amended by adding the word “mental" to the list.

7948. The Chairperson: I beg to move

7949. That the Committee recommend to the Assembly that the clause be amended as follows: In page 1, line 10, after “social" insert “mental"

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

7950. The Chairperson: John O’Dowd and Michelle O’Neill have abstained.

7951. Question accordingly agreed to.

7952. The Chairperson: I beg to move

7953. That the Committee recommend to the Assembly that the clause be amended as follows: In page 2, line 6, at end insert—

‘(4A) ESA shall ensure that its functions relating to grant-aided schools are (so far as capable of being so exercised) exercised with a view to encouraging and facilitating the development of education provided in an Irish speaking school (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006).’

7954. Members will recall that C na G sought an amendment to clause 2 to place a duty on the ESA to encourage and facilitate the development of Irish-medium education.

Question put.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr O’Dowd, Mrs O’Neill.

NOES

Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question put and negatived.

7955. The Chairperson: The last Question is that the Committee is content with the clause as drafted.

7956. Mr O’Dowd: Agreed. No, we are waiting —

7957. Mr B McCrea: Where are we now?

7958. The Committee Clerk: The Committee has voted to reject the Minister’s amendment; it is now being asked whether it is content with the rest of the clause as drafted.

7959. The Chairperson: That is, as the clause was before the insertion. Is the Committee content with the clause as drafted?

7960. Question put, That the Committee is content with the clause, subject to the Committee’s proposed amendments.

The Committee divided: Ayes 7; Noes 4.

AYES

Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr D Bradley, Mrs M Bradley, Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Clause 2, subject to the Committee’s proposed amendments, agreed to.

Clause 3 (ESA to employ all staff of grant-aided schools)

7961. The Chairperson: I beg to move

7962. That the Committee recommend to the Assembly that the clause be amended as follows: In clause 3, page 2, paragraph 2(a), line 27, leave out sub-paragraphs (i) and (ii) and insert

“(i) in the case of a controlled school, the Board of Governors of the school;

(ii) in the case of a voluntary or grant-maintained integrated school, the trustees of the school or (if the trustees so determine) the Board of Governors of the school; and".

7963. Members will recall that C na G sought an amendment to the Bill so that the owners and trustees of an Irish-medium school will be its submitting authority rather than the board of governors. Essentially, that is the same arrangement as that which has been proposed for Catholic maintained schools. The Minister proposed that amendment.

Question put.

The Committee divided: Ayes 4; Noes 7.

AYES

Mr D Bradley, Mrs M Bradley, Mr O’Dowd, Mrs O’Neill.

NOES

Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question accordingly negatived.

7964. The Chairperson: The question is that the Committee is content with clause 3 as drafted.

7965. Mr B McCrea: We are opposed to it as drafted.

7966. The Committee Clerk: Could we have a show of hands?

7967. The Chairperson: Just to be sure. We have not accepted the amendment from the Department. The Question is whether the Committee is content clause 3 as originally drafted.

7968. Mr Lunn: Having rejected the amendment?

7969. The Committee Clerk: Yes.

7970. Question put, That the Committee is content with the clause.

The Committee divided: Ayes 1; Noes 10.

AYES

Mr Lunn.

NOES

Mr Craig, Mr D Bradley, Mrs M Bradley, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

Question accordingly negatived.

Clause 3 disagreed to.

Clause 4 (Employment schemes for grant-aided schools)

7971. The Chairperson: I beg to move

7972. That the Committee recommend to the Assembly that the clause be amended as follows:

7973. In page 3, subsection 3, line 19, at end insert

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

7974. Members will recall the concerns of stakeholders, including NICCE, AQE and GBA, regarding the lack of clarity on the employment relationships that the Bill will create. At the Committee’s request, the Minister has agreed to make provisions as to the form of intended employment schemes by way of regulations. The Department’s proposed amendment introduces the enabling provision for such regulations.

Question put.

The Committee divided: Ayes 4; Noes 6.

AYES

Mr D Bradley, Mrs M Bradley, Mr O’Dowd, Mrs O’Neill.

NOES

Mr Craig, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross,, Mr Storey.

Question accordingly negatived.

7975. The Chairperson: Trevor Lunn has abastained.

Clause 4 agreed to.

7976. Clause 5 (Preparation and approval of employment schemes)

7977. The Chairperson: No amendments were proposed by either the Department or the Committee. Is the Committee content with the clause?

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross.

7978. The Chairperson: John McCallister and Basil McCrea have abstained.

7979. Question accordingly agreed to.

7980. Clause 5 agreed to.

Clause 6 (Reserve powers of ESA to make employment scheme)

7981. The Chairperson: This amendment springs from the amendment to clause 4 and gives the ESA a power to make employment schemes when the scheme submitted does not comply with the regulations to be made in relation to the form and content of employment schemes.

7982. I beg to move

7983. That the Committee recommend to the Assembly that the clause be amended as follows:

Page 4, paragraph (1)(c), line 11, leave out

from “subsection" to “cannot"

in line 13 and insert

section 5(1)(b) does not comply with regulations under section 4(4) or does not accord with any guidance issued by ESA under section 5(3) and cannot (in either case).

7984. The Committee Clerk: A complication exists because the Committee has rejected the amendment to clause.4. There is a proposed departmental amendment.

7985. The Clerk of Bills: On two occasions, the Committee declined to accept either its own or the Minister’s amendment and voted against the clause. What is the Committee proposing?

7986. The Clerk Assistant: I do not wish to complicate this difficult matter further. The Committee is entitled to support neither the amendment nor the clause, and members may have different reasons for doing so, and those will be included in the report.

7987. The Committee will have to return to another issue, and I do not suggest that you should do so now, because you are better going through the process and having a record of your view. If the Committee wants to act, there will have to be clarity on what the action will be. For example, if the Committee were to say that it did not support a clause, it would have the following options. First, it could agree to an amendment that would remove the clause. That would have major implications, because the clauses are significant, and the Committee would have to consider carefully whether it wished to do that. The second option is proposing amendment to a clause. The third option is that the Committee could decide that it had done what it could by forming its view and that it is for others to take action.

7988. When the Committee agrees an amendment, the Chairperson will sign an amendment form on behalf of the Committee, and the amendment will be published on the Marshalled List of Amendments. If the Committee supports neither the amendment nor the clause, an action is to be taken, but we will not know what that action is unless the Committee gives us clarity.

7989. I do not suggest that the Committee do anything about it now; it should come back to it. It is important that the Committee recognise that it has put on record its opposition to both the amendment and the clause; however, no action can be taken on its behalf without clarity on what the Committee wishes to do. The Committee must be clear on whether it wishes to remove the clause or whether it wishes to amend it.

7990. My suggestion is that the Committee continue with the approach of agreeing its position. As has already been discussed, the Committee can come back to it before Consideration Stage and either do something or say that it has done as much as it can and that it is up to others to propose amendments. It is important that members understand the effect those decisions. It is entirely reasonable because people may have different reasons for coming to the same conclusion.

7991. The Committee Clerk: Members were not opposing the clause; they were saying that they were not content with the clause.

7992. The Clerk Assistant: That is my point. There is nothing wrong with what the Committee has decided, but it should be clear on that before any action can be taken on its behalf. The Committee can say that it has a view and that that is as far as it is going. It can return to the issue another day.

7993. The Chairperson: Members, we should try to keep that in our minds: we are either content or not content. We will vote either to accept or reject the amendments, but the question still has to be put on whether we are content or not content with the clause. If we say that we are not content, do we still need to put in an action?

7994. The Clerk Assistant: You may do. The Committee could say that it has too many differing views on an issue and that, having done its best, it can do no more. Everyone will see the Committee’s views in the Hansard report.

7995. The Chairperson: That is a fair position.

7996. The Committee Clerk: The Department has proposed an amendment to clause 6. The question is whether the Committee recommends to the Assembly that the clause be amended as proposed by the Minister.

7997. The Chairperson: The reason that the Department gave for putting forward that amendment was to ensure that the submitting authorities should comply with the regulations on employment schemes.

Question put.

The Committee divided: Ayes 5; Noes 6.

AYES

Mr D Bradley, Mrs M Bradley, Mr Lunn, Mr O’Dowd, Mrs O’Neill.

NOES

Mr Craig, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question accordingly negatived.

7998. The Chairperson: The Question is that the Committee is content with clause 6 as drafted.

Question, That the Committee is content with the clause, put and negatived.

Clause 6 disagreed to.

Clause 7 (Revision of employment schemes)

7999. The Chairperson: Is the Committee content with clause 7 as drafted?

8000. Mr Lunn: Does there have to be a vote?

8001. The Chairperson: Unless somebody says that they are not content. Do we need to vote?

8002. The Committee Clerk: If there is a signal that all members are content, that is taken as the majority and a count is not needed; however, if there is a signal that that is not the case, the Committee has to vote.

8003. Mr Lunn: Last week, the Ulster Unionists asked for a recorded vote on every clause.

8004. Mr B McCrea: I think that it is a recorded vote. Is it not?

8005. The Chairperson: It is not recorded if the Committee is content. However, if we are saying that we will vote on all the clauses, then we will vote on all of them.

8006. Mr B McCrea: We want to register our objection.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr McCallister, Mr B McCrea.

Question accordingly agreed to.

Clause 7 agreed to.

Clause 8 (Effect of employment scheme)

8007. The Chairperson: The Question is that the Committee is content with the clause.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr McCallister, Mr B McCrea.

Question accordingly agreed to.

Clause 8 agreed to.

Clause 9 (Transfer to ESA of staff employed by Boards of Governors)

8008. The Chairperson: The Question is that the Committee is content with clause 9.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr McCallister, Mr B McCrea.

Question accordingly agreed to.

Clause 9 agreed to.

Clause 10 (ESA to employ peripatetic teachers)

8009. The Chairperson: The Question is that the Committee is content with clause 10.

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

8010. The Chairperson: Mr McCallister and Mr McCrea have abstained.

Question accordingly agreed to.

Clause 10 agreed to.

Clause 11 (Salaries, etc, of staff: administrative and financial arrangements)

8011. The Chairperson: Members will recall that the need for an amendment was highlighted by the stakeholders, notably the Western Education and Library Board and the General Teaching Council for Northern Ireland (GTCNI). The General Teaching Council pointed out that salaries would be drawn from the LMS formula funding regime of any school, which was surely not the intention. The Department recognised that and proposed a two-part amendment to clause 11. I will not read it all out, but members are aware of the issue. Perhaps Chris will clarify the matter.

8012. The issue of teachers’ salaries being looked at as an average has been raised. Older teachers can cost schools more money because of the different promotion points on their salary scales. Why is there a need for that clause?

8013. Mr Stewart: Chairman, are you asking why there is a need for the clause at all or for the amendment?

8014. The Chairperson: Sorry; I am asking why there is a need for the amendment.

8015. Mr Stewart: Without the amendment, boards of governors would not be able to manage the very difficulty that you pointed out. It is a fact that teachers of different ages and experience can give rise to wins and losses and to benefits and costs in respect of the management of staffing budgets.

8016. Without the amendment, boards of governors will not be able to address that problem; rather, the education and skills authority will make those decisions for controlled and maintained schools, while other schools will have the flexibility to manage their budgets to address, among other things, the difficulty that you raised. The amendment will level the playing field, provide equality and ensure that all boards of governors can manage their staffing budgets.

8017. The Chairperson: I beg to move

8018. That the Committee recommend to the Assembly that the clause be amended as follows: In page 6, paragraph (5) and (6) line 23, leave out subsection (5) and (6) and insert

(5) Notwithstanding any of the previous provisions of this Act, the budget share of a grant-aided school shall include an amount in respect of—

(a) the salaries and allowances of the staff of the school; and

(b) the relevant contributions in respect of such staff.

(6) But—

(a) in the case of a voluntary grammar school, ESA may set-off against the maintenance grant payable under Article 61(2)(a) of the 1998 Order any payments made by ESA itself in respect of the matters mentioned in paragraphs (a) and (b) of subsection (1);

(b) in the case of a grant-maintained integrated school, ESA may set-off against the maintenance grant payable under Article 63(2)(a) of the 1998 Order any payments made by ESA itself in respect of the matters mentioned in paragraphs (a) and (b) of subsection (2).

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

8019. The Chairperson: John McCallister and Basil McCrea have abstained.

Question accordingly agreed to.

8020. The Chairperson: I beg to move

8021. That the Committee recommend to the Assembly that the clause be amended as follows: In page 6, line 43, at end insert

“(c) ‘the appointed day’ means the day appointed under section 54 for the coming into operation of section 3."

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

8022. The Chairperson: John McCallister and Basil McCrea have abstained.

Question accordingly agreed to.

Clause 11, subject to the Committee’s proposed amendments, agreed to.

Clause 12 agreed to.

Clauses 13 to 16 agreed to.

8023. The Chairperson: I beg to move

8024. That the Committee recommend to the Assembly that the following new clause be inserted: After clause 16, insert

“ESA to contract for certain capital works [j2597]

*.—(1) ESA may enter into contracts for, or in connection with, the provision or alteration of the premises of a grant-aided school.

(2) Those contracts may include contracts with the trustees or Board of Governors of a voluntary or grant-maintained integrated school requiring specified payments to be made to ESA by the trustees or Board of Governors at specified times.

(3) ESA may under the powers conferred by subsection (1) enter into a contract (“an approved contract") with another person (“the contractor")—

(a) under which the contractor undertakes at his own cost—

(i) to provide or alter any premises of a grant-aided school; and

(ii) to maintain, or provide other services in relation to, those premises over the term of the contract,

in consideration for the payment by ESA of sums of money in instalments over the term of the contract; and

(b) which has been approved by the Department for the purposes of this subsection.

(4) The inclusion in a contract of matters other than those mentioned in paragraph (a) of subsection (3) does not prevent the contract falling within that paragraph.

(5) In Article 2 of the 1986 Order for paragraphs (2G) and (2H) substitute—

“(2D) In the Education Orders references to—

(a) an approved contract,

(b) the contractor, in relation to an approved contract,

shall be construed in accordance with section {j2597}(3) of the Education Act (Northern Ireland) 2009.

(2E) References in the Education Orders to the staff of or at a school or to persons employed at, in or about a school do not include references to persons employed by the contractor for the purposes of an approved contract." "

8025. This is a new clause to be inserted after clause 16. It addresses a provision to allow the ESA to be the contracting authority for major capital works in grant-aided schools.

8026. Question put and agreed to.

Clause 17 (ESA to pay superannuation benefits of teachers)

8027. The Chairperson: I beg to move

8028. That the Committee recommend to the Assembly that the clause be amended as follows: In page 9, line 16 after ‘Department)’ insert

“for paragraph (1)".

That amendment clarifies the reference to the article in the Superannuation (Northern Ireland) Order 1972, which is amended by clause 17 of the Bill.

Question put and agreed to.

8029. Question, That the Committee is content with the clause, subject to the Committee’s proposed amendment, put and agreed to.

8030. Clause 17, subject to the Committee’s proposed amendment, agreed to.

8031. Clauses 18 to 20 agreed to.

Clause 21 (Dissolution of certain statutory bodies)

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 2

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr McCallister, Mr B McCrea.

Question accordingly agreed to.

Clause 21 agreed to.

Clause 22 (Transfer of assets, liabilities and staff)

Question put, That the Committee is content with the clause.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr McCallister, Mr B McCrea.

Question accordingly agreed to.

Clause 22 agreed to.

Clause 23 (General duty of the Department and DEL)

8032. The Chairperson: I beg to move: That the Committee recommend to the Assembly that the clause be amended as follows: In page 12, line 8, after

“social" insert “mental".

8033. Clause 23 concerns the general duty of the Department and DEL. As discussed earlier under clause 2, which we have agreed to, we have approved the insertion of the term “mental".

8034. The Committee Clerk: Those amendments relate to clause 2(2)(a) and clause 2(2)(b)

8035. The Chairperson: That means that we have to amend this clause in the same way in order to be consistent. We would have to agree to that, the same as we did for clause 2.

8036. The Committee Clerk: That is up to members. It could be seen as a consequential amendment.

8037. The Chairperson: I note that Michelle O’Neill and John O’Dowd have indicated that they will abstain.

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question accordingly agreed to.

8038. Mr B McCrea: Is that clause about the Department of Education and the Department for Employment and Learning? Am I on the right clause?

8039. The Chairperson: Yes.

8040. Mr B McCrea: Were the two Ministers meeting to discuss something? Is this the clause that they will discuss?

8041. The Chairperson: There is a reference to that in the Minister’s letter.

8042. Mr D Bradley: The Education Minister is going to contact the Health Minister.

8043. The Chairperson: No, this is to do with DEL.

8044. The Committee Clerk: I do not think that the letter indicated a clause.

8045. The Chairperson: Perhaps I said DEL and I should not have; it is really the Health Department.

8046. The Committee Clerk: The Minister’s letter of 22 September mentions an amendment that relates to the Careers Service.

8047. The Chairperson: That is not to do with clause 23.

8048. Mr B McCrea: I read somewhere that the Minister said she was talking to Reg Empey.

8049. Mr D Bradley: She has accepted the amendment from DEL.

8050. Mr B McCrea: So, is this it?

8051. The Chairperson: No. There is nothing in clause 23 that refers to DEL. Sorry, there is. Clause 23(2) states that:

“It shall be the duty of DEL to promote further and higher education in Northern Ireland."

8052. That was not any reference to —

8053. Mr B McCrea: I was just checking. Thank you.

8054. The Chairperson: We took a vote on clause 23, did we not?

8055. The Committee Clerk: Yes, we did.

Clauses 24 and 25 agreed to.

Clause 26 (Discharge by ESA of its functions under sections 24 and 25)

8056. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: In page 14, line 12, at end insert

“(iii) the requirements of those attending Irish speaking schools (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006) who are taught in Irish; and"

8057. This is a departmental amendment in response to a submission from C na G, which aims to ensure that the ESA, in relation to the curriculum and examinations, considers the requirements of those who attend Irish-speaking schools.

8058. The Question is that the Committee recommends to the Assembly that this clause be amended as proposed by the Minister as set out above.

8059. Mr Ross: How does that extend the current position? Are we saying that due regard is not currently being given to the requirements of those attending Irish-medium schools? I do not see the need for the amendment.

8060. The Chairperson: Will Mr Stewart facilitate the Committee, please?

8061. Mr Stewart: The member has partly answered his own question. The amendment is proposed because the Minister is satisfied that the needs of those being educated through the medium of Irish are not currently being sufficiently met, particularly in relation to curriculum support, and it is felt that placing that duty on the ESA would put it in a position to remedy the current shortcomings.

8062. Mr Ross: What are the current shortcomings that have been identified as needing to be resolved?

8063. Mr Stewart: To put it in crude and, perhaps, over-simplified terms, it was felt that something of a one-size-fits-all approach was being taken, particularly around curriculum support, and that such an approach does not sufficiently recognise that students are being taught through the medium of Irish rather than English. Therefore, the needs for curriculum-support materials are quite different. It is not enough to translate English-language materials into Irish: a more fundamental examination is needed of what materials are required by teaching staff.

8064. Mr D Bradley: Until now, the education and library boards have said that they are under no legal obligation to provide curriculum support and back-up for Irish-medium schools; consequently, there has not been much of it. Comhairle na Gaelscolaíochta wanted the amendment to ensure that that would not be the case under the ESA and to copper-fasten the provision of those services to the sector.

8065. Mr McCallister: How can curriculum support be defined in any one area? The Committee hears the same claims about the need for support materials from others, particularly special needs groups; they need specific materials for people who are blind or who have hearing difficulties.

8066. Mr Stewart: That is already covered by the clause.

Question put.

The Committee divided: Ayes 5; Noes 6.

AYES

Mr D Bradley, Mrs M Bradley, Mr Lunn, Mr O’Dowd, Mrs O’Neill.

NOES

Mr Craig, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question accordingly negatived.

8067. The Chairperson: I beg to move

8068. That the Committee recommend to the Assembly that the clause be amended as follows: in page 14, line 19, leave out from “and" to end of line 21.

The effect of that is to remove clause 26(2)(b):

“persons who have a learning difficulty (as defined in Article 2 of the Further Education (Northern Ireland) Order 1997 (NI 15))."

8069. Mr O’Dowd: Chairperson, may I have a moment to familiarise myself with the proposed amendment.

8070. The Chairperson: Does Mr Stewart want to comment on DEL’s recommended amendment? If I remember accurately, the Committee received correspondence from the Committee for Employment and Learning that stated that it was happy with the proposed amendment.

8071. Mr Stewart: I may have taken longer to get to the table than I will spend at it on this occasion. I am not in a position to comment in detail about why DEL has put forward the amendment, but it is proposed on the advice of that Department. I do not think that the amendment reflects any great policy change; it is based on technical advice that the provision is no longer required.

8072. Mr Lunn: I am curious about why there is no explanation. DEL says that we do not need the Further Education (Northern Ireland) Order 1997, but was it not needed in 1997? What is different now?

8073. Mr Stewart: I cannot shed any light on that today; I will have to check that with DEL colleagues and come back to the Committee with an answer.

8074. The Chairperson: Clarification of that would be useful.

8075. Mr Stewart: I am conscious of pressures on the Committee’s time; therefore, if it helps, I will try to get a line on that over lunchtime.

8076. The Chairperson: I will now ask the Committee whether it recommends to the Assembly that the clause be amended as proposed by the Minister as set out above. This Question relates to the DEL amendment.

8077. Mr O’Dowd: Will the Committee postpone a vote until after lunch, by which time it will have received that clarification?

8078. The Chairperson: With members’ agreement, the meeting is suspended until 1.30 pm.

8079. Twenty-five minutes of proceedings not reported as Hansard not provided with sound recording.

Clauses 43 to 46 agreed to.

Clause 47 (Directions as to exercise of child protection duties by Boards of Governors)

8080. The Chairperson: Do Committee members have any comments on the clause?

8081. Miss McIlveen: The National Society for the Prevention of Cruelty to Children (NSPCC) raised an issue with the clause.

8082. The Chairperson: The Minister’s letter of 22 September 2009 states:

“NSPCC has proposed that Clause 47 be amended".

It also states:

“It is not appropriate for ESA to issue a direction to a Principal and, in effect, ‘by-pass’ the Board of Governors. Boards of Governors are accountable for the actions of school-based staff, and it is for the Boards to issue instructions to those staff. Issuing directions to the Board of Governors, albeit on foot of a failure by the Principal, will ensure that they are kept informed of the position and have the opportunity to consider the issue and wider safeguarding practice within the school."

8083. Miss McIlveen: I just wanted to put on the record that the NSPCC raised an issue with the clause.

Question, That the Committee is content with the clause, put and agreed to.

Clause 47 agreed to.

Clause 48 agreed to.

Clause 49 (Catholic maintained schools)

8084. The Chairperson: Members will recall that the Department’s proposes to remove clause 49 as a separate approach to Catholic maintained schools is no longer required. The Minister will give notice of her intention to oppose the Question that clause 49 stands part of the Bill. Are members content with that proposal?

8085. Mr B McCrea: No, we object.

8086. Mr D Bradley: Chris, will you refresh our memories on the Department’s reasons for wanting to remove clause 49?

8087. Mr Stewart: Clause 49 is a carry-over from the existing provisions in the Education Reform (Northern Ireland) Order 1989, which set up a definition for Catholic maintained schools as part of a much broader provision. That set out a separate set of administrative arrangements for Catholic maintained schools with the aim of moving towards a single set of administrative arrangements, albeit one that would support a diversity of schools.

8088. It is no longer necessary or appropriate to take that approach to defining Catholic maintained schools. As we mentioned briefly last week, it is, nevertheless, still necessary in one or two places to refer to Catholic schools in legislation. On foot of that, we have proposed in the amendments a different definition for Catholic schools. Lest it would give rise to any concern on the part of Committee members, that is not a softening of the policy intention to simplify administration; it is simply a pragmatic reflection of reality. From time to time, it is necessary to refer to different types of schools and to have definitions, but the approach that is currently taken in clause 49 is not required, hence the Minister’s proposal that it be removed.

8089. Mr D Bradley: Why was that clause included in the Bill in the first place?

8090. Mr Stewart: From the beginning of the RPA, it was always intended to make those changes. The original proposal was to remove the definition of Catholic maintained schools in the second education Bill. That was purely because we thought that it was quite an onerous and difficult task to deal with all the various references in legislation. However, when we looked at it in some detail, we recognised that it was not as difficult as we had first thought and that it was possible to deal with it in the first Bill.

8091. Mr B McCrea: In your explanation, you said that there was some need for different designations of schools at different stages. Given the way that thinking is emerging about area-based planning, it might be useful to have certain designations. That is why we are opposed to their removal; we believe that a one-size-fits-all policy cannot be used, and that we will end up with designations.

8092. Mr Stewart: That is correct, and the Minister would agree with that. She would point to the fact that the designations and definitions for other types of school are already in legislation and will remain in legislation; we are not taking any away. The Catholic trustees strongly support the removal of the separate definition of Catholic maintained schools. They are very clear that they want to see participation by the representatives of Catholic schools in area-planning arrangements, but they do not favour a separate categorisation of Catholic grammar schools and Catholic maintained schools. The definition of grammar school will remain in legislation.

8093. Mr B McCrea: Perhaps it is too much detail to deal with at this stage, but there was a general agreement that having some form of designation might be helpful in area-based planning. I am reluctant to take away a definition that is already in existence.

8094. Mr Stewart: The Committee must come to a view on that. I reassure you that that would not disadvantage any Catholic schools, maintained or otherwise. The trustees are also of that view.

8095. Chairperson, if you wish to return to clause 26 while I am here, I am happy to do so.

8096. The Chairperson: Thank you, Chris. We will deal with clause 49 and then return to clause 26.

8097. The Question is that the Committee recommends to the Assembly the removal of clause 49 as proposed by the Minister and set out above. I ask members to indicate whether they are in favour of clause 49. I note that Jonathan Craig, Michelle McIlveen and Alastair Ross have indicated that they wish to abstain, and I also shall abstain.

Question put.

The Committee divided: Ayes 5; Noes 2

AYES

Mr D Bradley, Mrs M Bradley, Mr Lunn, Mr O’Dowd, Mrs O’Neill

NOES

Mr McCallister, Mr B McCrea

Clause 49 disagreed to.

Clause 26 (Discharge by ESA of its functions under sections 24 and 25)

8098. The Chairperson: Chris, can we go back to clause 26 now, please?

8099. Mr Stewart: Members have asked for a further explanation as to why DEL proposed an amendment to remove clause 26(2)(b). Having checked the background to it, the amendment was based on the advice of legislative counsel and was agreed by our colleagues in DEL. Legislative counsel pointed out that clause 26 refers back to clauses 24 and 25. The focus of those clauses is entirely on what happens in schools. Therefore, it pointed out that the reference in clause 26(2)(b) to further education was simply not necessary and was superfluous, and it was recommended that it ought to be taken out.

8100. Subsequent to that, as you know, DEL sought an agreement to amendments to introduce a similar range of functions for the ESA to cover further education, similar to those in clauses 24 and 25, which deal with schools. At the end of the new clause that DEL has proposed to be inserted after clause 28, a reference to persons with special learning needs, similar to the one that is proposed to be removed from clause 26(2)(b), is included. In essence, it is proposed that that reference be taken out from a part of the Bill where it is not appropriate and that it be reinserted in a new clause in the Bill where it would be more appropriate.

8101. At the risk of further complicating the matter, we read the clause and the amendments again over lunch, and we are not entirely satisfied that the wording of the proposed DEL amendment is entirely correct.

8102. It appears to include a cross-reference to the clause that we have proposed to remove. We will seek advice from legislative counsel. If there is an error, it will not be difficult to fix. We would revise the wording of the DEL amendment in order to ensure that there is not an erroneous cross-reference.

8103. Mr B McCrea: You will just rewrite it then, Chris. Is that what you are saying?

8104. Mr Stewart: If there is an error, we will fix it. I believe that there is an error.

8105. The Chairperson: We did not agree on the amendment that was tabled by DEL. All we can do is agree on that amendment. An amendment will probably have to be tabled by the Department at Consideration Stage. Alternatively, it could come back to us.

8106. Mr Stewart: It might assist the Committee if we confirm with our colleagues in DEL that their amendment is not quite correct at present. We will secure their agreement to correct that error. We will bring that back to the Committee. When it comes to Consideration Stage, I suspect that the Minister of Education will move the amendment. However, she will move a slightly revised amendment. I assure members that the effect of the amendment will remain exactly as currently drafted.

8107. The Chairperson: I still think that we need to agree clause 26 as amended. So the Question is that the Committee recommends to the Assembly that the clause be amended as proposed by the Minister for Employment and Learning.

8108. Mr O’Dowd: Can we consciously accept it? Can we note it and return to it later?

8109. The Committee Clerk: On a point of clarification; if I understand Chris correctly, the opposition to and removal of that is correct. Somewhere else in the DEL amendments, there may be an error that the Committee has already approved. Therefore, it is not an issue here. Chris has given us an extra piece of information, which we will learn about in the future. It does not affect this vote, as I understand it.

8110. The Chairperson: Are members content?

8111. Mr B McCrea: I have no idea.

8112. Mr Stewart: You will just have to trust us.

8113. Question accordingly agreed to.

Question, That the Committee is content with the clause, subject to the Committee’s proposed amendment, put and agreed to.

Clause 26, subject to the Committee’s proposed amendment, agreed to.

Clause 50 agreed to.

Clause 51 (Regulations and orders)

8114. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: In page 29, line 16, paragraph (1), at start insert

“Except as provided by subsection (6),"

8115. In page 29, line 24, paragraph 5, at end insert

“(6) No regulations shall be made under Schedule 1, paragraph 7 unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly."

8116. The Committee has discussed the merits of making important regulations or orders under the Bill subject to draft affirmative resolution by the Assembly as opposed to negative procedure. Please, do not go down that road today. The Committee now has the opportunity to recommend to the Assembly such an amendment to the Bill; however, only if the Committee has recommended the amendment to schedule 1, paragraph 7.

8117. The Committee Clerk: There is one complication, which I will mention in a moment. The Committee may consider three or, perhaps, all four of those sets of amendments. With regard to the third, I will make a slight change to the Chairman’s proposal.

Question put.

The Committee divided: Ayes 9; Noes 2

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

8118. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: In page 29, line 16, paragraph (1), at start insert:

“Except as provided by subsection (6),"

In page 29, line 24, paragraph 5, at end insert:

“(6) No regulations shall be made under section 30(6) unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly."

Question put.

The Committee divided: Ayes 9; Noes 2

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

8119. The Committee Clerk: The next proposal is a draft affirmative resolution for proposed new clause 4(4), which relates to the regulation on employment schemes. As the Committee has opposed the Minister’s amendment relating to employment schemes, I will adjust the Question, if I may, so that it would read:

“The Question is that, should the regulation amendment in relation to bringing forward regulation on schemes of employment be tabled, the Committee recommend to the Assembly that clause 51 be amended as set out above".

8120. The Chairperson: That simply means that if the Minister or someone else proposed the amendment, it would be subject to the draft affirmative resolution procedure.

Question put.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

8121. The Chairperson: The next proposed amendment is still related to clause 51.

8122. The Committee Clerk: That still applies. If I may clarify, that proposed amendment would have the effect of making clause 12(1), which is the modification of employment law, subject to draft affirmative resolution of the Assembly.

8123. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the clause be amended as follows: in page 29, line 17, leave out

“section 50(1)" and insert “sections 50(1) or 12(1)"

I note that Mr O’Dowd and Mrs O’Neill wish to abstain from this vote.

Question put.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

Question accordingly agreed to.

Question put, That the Committee is content with the clause, subject to the Committee’s proposed amendments.

The Committee divided: Ayes 9; Noes 2.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Mr McCallister, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Clause 51, subject to the Committee’s proposed agreements, agreed to.

Clauses 52 to 53 agreed to.

Clause 54 (Commencement)

8124. The Chairperson: I beg to move

8125. That the Committee recommend to the Assembly that the clause be amended as follows: In page 30, line 24, at end insert

“(cc) section 29 and Schedule 6;"

8126. This amendment is proposed by the Department. Members will recall that it allows the commencement of the clause on disciplinary powers of the General Teaching Council to be commenced upon Royal Assent, as those clauses are urgently required in order to comply with other jurisdictions. There are six abstentions; Jonathan Craig, John McCallister, Basil McCrea, Michelle McIlveen, Alastair Ross and myself.

Question put.

The Committee divided: Ayes 5; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Lunn, Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Clause 54, subject to the Committee’s proposed amendment, agreed to.

Clause 55 agreed to.

8127. The Chairperson: We now move to the schedules. We have already dealt with schedule 1.

8128. Mr B McCrea: Do we not have to deal with the schedule in its entirety? We have dealt with individual parts of it.

8129. The Committee Clerk: We have dealt with it in its entirety.

Schedule 2 (Transfer to ESA of staff employed by Boards of Governors)

8130. The Chairperson: I note that Basil MrCrea and John McCallister have indicated that they wish to abstain.

Question, That the Committee is content with the schedule.

The Committee divided: Ayes 9; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Craig, Mr Lunn, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

Question accordingly agreed to.

8131. Schedule 2 agreed to.

Schedule 3 (Transfer of assets, liabilities and staff of dissolved bodies)

8132. The Chairperson: I beg to move

8133. That the Committee recommend to the Assembly that the schedule be amended as follows: In page 40, line 8, paragraph 5, leave out paragraph 5 and insert—

‘5.—(1) ESA shall make arrangements for a statement of accounts to be prepared in relation to each dissolved body for the relevant period.

(2) Each statement of accounts shall—

(a) be in such form, and

(b) contain such information,

as the Department may direct.

(3) ESA shall, within such time after the end of the relevant period as the Department may direct send a copy of each statement of accounts to the Department.

(4) In this paragraph “the relevant period" means the period—

(a) beginning on such day as the Department may direct; and

(b) ending immediately before the appointed day.’

8134. That proposed departmental amendment makes arrangements for the ESA to proceed with regard to reporting on its first set of accounts following advice from the Department of Finance and Personnel.

8135. Members will recall that the amendment from the Department of Culture, Arts and Leisure (DCAL) to line 20 on page 38 is no longer required because those assets or liabilities have already been transferred to the new Library Authority.

Question put and agreed to.

Question, That the Committee is content with the schedule, subject to the Committee’s proposed amendment, put and agreed to.

Schedule 3, subject to the Committee’s proposed amendment, agreed to.

Schedule 4 (Transfer of certain assets and liabilities of CCMS before appointed day)

8136. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the schedule be amended as follows: In page page 41, paragraph (3)(b), line 16, leave out head (b) and insert—

‘(b) the Roman Catholic Archbishop of Armagh and the Roman Catholic Bishops of Clogher, Derry, Down and Connor, Dromore and Kilmore; and’

8137. This is a departmental amendment. Members will recall that the definition is required because of the proposed removal of clause 49. I note six abstentions: Jonathan Craig, John McCallister, Basil McCrea, Michelle McIlveen, Alastair Ross and myself.

Question put,

The Committee divided: Ayes 5; Noes 0.

AYES

Mr D Bradley, Mrs M Bradley, Mr Lunn, Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Schedules 5 and 6 agreed to.

Schedule 7 (Minor and consequential amendments)

8138. The Chairperson: I beg to move

8139. That the Committee recommend to the Assembly that the schedule be amended as follows: in page 48, line 25, leave out from

‘for’ to end of line 27 and insert ‘for the words from “has the meaning" to the end substitute “means a maintained school whose trustees are appointed by, or on behalf of, the Roman Catholic Church;" ’

Schedule 7, page 50, line 5, leave out paragraph (6)

Schedule 7, page 51, line 16, leave out paragraph (15)

Schedule 7, page 55, line 31, leave out from ‘and’ to end of line 33 and insert—

‘(aa) in paragraph 1(2) for sub-paragraphs (a) and (b) substitute “the trustees and Board of Governors of the school;" ’

Schedule 7, page 61, line 5, leave out paragraph 18 and insert—

‘18.—(1) In Article 10(3)(aa) and (4)(aa) for “the body constituted by" substitute “a tribunal constituted in accordance with".

(2) In Article 16(2) for sub-paragraphs (a) and (b) substitute “the Board of Governors of a grant-aided school shall consider any representations made to it by ESA".

(3) In Article 16A(1) for the words from the beginning to “direction" substitute “ESA shall make arrangements for enabling the parent of a child of compulsory school age to apply to a tribunal constituted in accordance with regulations under paragraph (6) for a direction".

(4) In Article 16A(2)(a) and (b) for “body" wherever occurring", substitute “tribunal".

(5) In Article 16A(5)(a) for “pupil" substitute “child".

(6) In Article 16A(6)—

(a) for “a body" substitute “tribunals";

(b) in sub-paragraphs (a), (b) and (c) for “the body" substitute “a tribunal";

“(cc) may provide for two or more tribunals to sit at the same time;";

(d) in sub-paragraph (d) for “the Department" substitute “ESA".

(7) In Article 16A after paragraph (6) substitute—

“(6A) A tribunal is not to be regarded as a committee of ESA."

(8) In Article 16A for paragraph (7) insert—

“(7) ESA may make payments to members of a tribunal—

(a) for or in relation to their service a members; and

(b) by way of travelling and subsistence allowance.".

(9) In Article 16B(1)(d), for “the body established" substitute “a tribunal constituted".’

Schedule 7, page 62, line 13, leave out sub-paragraph (7) and insert—

‘(7) In Article 32(2) for sub-paragraphs (a) and (b) substitute “the Board of Governors of a controlled or maintained school shall consider any representations made to it by ESA." ’

Schedule 7, page 62, line 21, leave out sub-paragraphs (13) to (17) and insert—

‘(13) In Article 55(3) and (6) for sub-paragraph (c) substitute—

“(c) where the school is a maintained school, the trustees of the school,".’

(14) In Article 56(1)—

(a) for “the board concerned" substitute “ESA";

(b) for sub-paragraph (b)(iii) substitute—

“(iii) where the school is a maintained school, the trustees of the school,"

(15) In Article 56(2) for sub-paragraph (d) substitute—

“(d) where the school is a maintained school, the trustees of the school,".

(16) In Article 60(5) for “all the boards, the Council for Catholic Maintained Schools" substitute “ESA".

(17) In Article 60(8) and (11) for sub-paragraph (c) substitute—

“(c) where the school is a maintained school, the trustees of the school,".’

8140. This departmental amendment is neither minor nor consequential because it is as long as the schedule. Members will recall that the Department commented that the most significant amendments in schedule 7 relate to the amendment of the Education (Northern Ireland) Order 1997. It will place a duty on the ESA to appoint exceptional circumstances tribunals to consider appeals from parents regarding admission to secondary schools for their children. We know that the regulations are going out for consultation.

Question put and agreed to.

8141. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the schedule be amended as follows: In page 54, line 28, omit ‘and’

8142. In page 54, line 29, at end insert ‘and

“(d) the Education (Northern Ireland) Order 2009".

This amendment has been tabled by the Department for Employment and Learning.

Question put and agreed to.

8143. The Committee Clerk: Before we leave schedule 7, I draw members’ attention to the Minister’s letter of 22 September, in which the Minister highlighted another amendment in relation to DEL and the Careers Service. The four lines at the end are effectively the amendment, the detail of which is given in the commentary. Does the Committee want a moment to consider deciding on that amendment now? Alternatively, the Committee may wish to defer reaching an opinion as it has only just received the information.

8144. The Chairperson: Do members have any comments?

8145. Mr O’Dowd: Do we know whether the Committee for Employment and Learning has a view?

8146. The Chairperson: That was not included in the correspondence from the Department for Employment and Learning. This amendment has only just been received. Chris, can you elaborate?

8147. Mr Stewart: It may not have been considered by the Committee for Employment and Learning yet, because the need for the possible amendment arose after the main block of amendments was proposed by DEL. The Minister of Education sees no difficulty with it. The rationale for the amendment is clear: it is to put beyond doubt the legality of the ESA and schools providing to the Careers Service information that it needs to assist children and young people, particularly those who are at risk of losing contact with the education system. It is to ensure that the Careers Service is in a position to provide the most effective service that it can, and the Minister supports the amendment for those reasons.

8148. The Chairperson: It is nice to see the independent schools getting a mention at last. It might be only a very small step, but it is in the right direction. I have to say that I declare an interest.

8149. Mr Stewart: Independent schools are mentioned in clause 37 as well. They are within the remit of the inspection regime.

8150. The Chairperson: We know that — passed with flying colours.

8151. Clerk, can you advise us on whether the Committee can accept that amendment?

8152. The Committee Clerk: If it is the Committee’s wish to do so, despite the late notice.

8153. The Chairperson: I beg to move

8154. That the Committee recommend to the Assembly that the schedule be amended as follows: in page 64, line 4, at end insert—

“(4) In Article 37(8) after sub-paragraph (c) insert—

“(ca) the Board of Governors of a grant-aided school; and

(cb) the proprietor of an independent school."."

8155. I ask members to consider the amendment set out on the last page of the Minister’s letter.

Question put and agreed to.

Question, That the Committee is content with the schedule, subject to the Committee’s proposed amendments, put and agreed to.

8156. Schedule 7, subject to the Committee’s proposed amendments, agreed to.

Schedule 8 (Repeals)

8157. The Chairperson: I beg to move

8158. That the Committee recommend to the Assembly that the clause be amended as follows:

In page 72, leave out lines 13 and 14

In page 72, leave out lines 20 to 24 and insert—

‘Article 25’

In page 73, leave out lines 12 and 13

In page 73, leave out lines 35 and 36 and insert—

‘In Article 61(1) the words “situated in its area".

Article 61(3).’

In page 73, leave out lines 39 and 40 and insert—

‘In Article 63(1) the words “situated in its area".

Article 63(3).’

In page 73, line 47, leave out from beginning to end of line 3 on page 74 and insert

‘Article 70(3) to (7), (9) and (10).’

In page 74, line 41, at end insert—

‘Article 28.’

8159. These are proposed departmental amendments to schedule 8. Chris, is this a tidying-up exercise?

8160. Mr Stewart: Yes.

8161. The Committee Clerk: It is a whole collection of amendments.

8162. Mr B McCrea: The amendments are simply tidying-up amendments.

8163. The Chairperson: Yes; that is what I have just asked Chris. Chris, can you clarify further?

8164. Mr Stewart: To be clear: is the focus of your question schedule 8?

8165. The Chairperson: Yes; schedule 8.

8166. Mr Stewart: These are a set of consequential repeals. They do not in themselves make any great policy change, but they give effect to the policy changes elsewhere in the Bill. As you say, they are a tidying-up exercise. They remove pieces of the vast body of education legislation that are no longer required.

8167. The Chairperson: The Question is that the Committee recommends to the Assembly that the schedule be amended as proposed by the Minister?

Members indicated assent.

8168. The Chairperson: That brings us to the end of our clause-by-clause scrutiny of the Bill.

8169. I want to place on record concerns about the way in which the Bill affects the controlled sector, and we had some discussion on that earlier. First, I want to highlight the extremely slow progress that there has been in establishing the controlled sector body. The lack of progress has meant that the controlled sector has not had the same opportunity as other sectors to influence the scrutiny of the Bill. The Minister has been willing to move to address some of the concerns raised by sectoral bodies. That begs the question of what might have been achieved had an effective controlled sector body been up and running six to eight months ago.

8170. I am also concerned that the Department has told the Committee that it has no plans to commence its review of the teacher-employment and fairness/equality issues that arise in that regard through: the fair-employment exemption for teachers; the impact of the requirement to have a certificate in religious education on open access to teaching vacancies in the maintained sector, both now and if the exception is removed; and, in particular, how the latter will affect the respective opportunities of teachers in controlled schools and maintained schools if there is a significant rationalisation and school closures. There is a serious concern about whether staff be treated fairly.

8171. If, as the Bill proposes, all teachers are employed by the ESA, then all ESA vacancies will presumably be open to all teachers who are at risk of redundancy. However, if roughly half of the vacancies are in maintained schools, in the majority of cases, vacancies in maintained schools will not really be open to those teachers who work in controlled schools and who are at risk of redundancy because there may be a requirement for a certificate in religious education. On the other hand, all vacancies across both the controlled and maintained sectors will be open to teachers from the maintained sector who are at risk of redundancy.

8172. Where the teachers in the different sectors were employed by different employers, the employers did not need to look beyond their own employees in trying to find alternative employment for teachers who are at risk of redundancy in their own schools. The ESA’s obligations will be different and will encompass all staff at risk of redundancy in all grant-aided schools and all vacancies across all sectors. It appears that that will mean that there will be fewer alternative employment opportunities open to teachers in the controlled sector than in the maintained sector.

8173. I propose that the Committee’s report include a very strong recommendation that the Minister take urgent action to address all the issues that I have just summarised and find the resources to make immediate progress. That recommendation can be made in the knowledge that the Minister has already indicated to us in correspondence that there is neither the budget nor the resources available to carry out the promised review of the exemption in regard to the provision for a certificate for Catholic education. That ties in with the concerns that we have about the controlled sector, and I ask the Committee for its support on the issue so that the report that goes to the Assembly reflects our concerns in the strongest possible terms and asks the Minister to address them.

8174. Mr O’Dowd: There are parts of your comments that I have sympathy with and support, but there are parts with which I completely disagree. I am disappointed that you have raised your concerns at this juncture in the Committee’s deliberations. Having heard your comments in the Committee meetings and elsewhere, I know that your concerns are connected to your party. Those matters do not necessarily need to be contained in the Committee’s report to the Assembly. The Committee’s report to the Assembly is a factual report of the deliberations on evidence given, amendments and the Bill in general. On that basis, I will not support the inclusion of those comments in the report.

8175. On the issue of whether we could have heard more from the controlled sector, all five of the education and library boards have appeared before the Committee, as have the educational boards’ representative body, the grammar sector and the GBA. The door was open to anyone who wished to make written or oral presentations to us. Therefore, we have heard from the controlled sector. The thought that was in my head at the start of this morning’s meeting is still there now: representatives in this room told us that there was a need and demand for a body for the controlled sector, but the evidence suggests to me that that may be more of a political demand than a demand from the sector itself.

8176. The Chairperson: The education and library boards were not tasked with being the sole advocate for, or defender of, the controlled sector. You must remember that when litigation was taken against some maintained schools, and when costs were incurred as a result of decisions made by, for example, CCMS, to amalgamate some schools, who picked up the tab? It was the education and library boards, not CCMS. I repeat; we are comparing apples with oranges. There is a sector that is clearly disadvantaged. In fact — speaking as a member of the Committee and not as its Chairperson — I would go so far as to say that, in some cases, it could be argued that it was not only disadvantaged but discriminated against because of the structures that were in place.

8177. If we are moving into a new dispensation and if, as the Minister continually tells us, she wants equality and a level playing field for all, consideration must be given to the serious concerns about employment opportunities for staff in the controlled sector. They will be seriously disadvantaged when there is a rationalisation of the schools estate. We are not scaremongering; that will happen. There are schools in the controlled sector that will not be in existence in 10 or 15 years, as there are in the maintained sector. Who is going to employ those teachers if such a disincentive exists? Those teachers believe that they do not have the same opportunities as their peers or equals. I am quite happy for the Committee to comment further on that issue.

8178. Mr D Bradley: It is unfortunate that you raise those issues five minutes before we are due to finish the scrutiny of the Bill. I am not in a position to give my party’s support to your views on that sort of notice. I would prefer to have discussions with my party first before I give you a definitive answer. I echo what John has said; the TRC appeared before the Committee to represent the controlled sector, or at least part of it. The representatives of that body made their case very strongly, and the Committee has acted on the shortcomings that they saw in the Bill and has tried to accommodate their proposals. We had a discussion earlier about the new maintained body.

8179. I also contend that the education and library boards do have a duty to represent the controlled sector’s concerns. There are five of those boards, plus their representative body. There was ample opportunity for a number of bodies to represent the controlled sector. The TRC did that very well, and the Committee has acted upon, and tried to accommodate, its concerns. That is probably as much as we can do at this late stage.

8180. The Chairperson: I am quite happy to put the proposal to the Committee. I propose that —

8181. Mr Lunn: I would like to make a comment. Without wishing to repeat a lot of what has been said, on the face of it, I have a lot of sympathy for what the Chairperson has said, but it may be a bit much to expect me to commit to that sort of verbal statement on behalf of my party, especially at this stage.

8182. As I said, that sounds very reasonable; however, I wish to see the proposal in writing so that I can dwell on it for at least a week. I do not understand why it has to be part of the Committee’s report on the scrutiny of the Bill.

8183. The Chairperson: It is important that it be included in report in order to give confidence to all the sectors. Some sectors will gain certain things and others will not. In fairness to the Minister, she has refused some of the recommendations that the Irish-medium sector made. She made a decision, so not everyone will get what they are looking for. I think that the controlled sector wants to know what it is getting from the process.

8184. Mr O’Dowd: Where exactly is it saying that? Where is the statement from the controlled sector in which it states that position?

8185. The Chairperson: We are often told by the Minister that we are representing, or are not representing, the sector because of the debate on academic selection. The principals of controlled primary schools, a considerable number of which are in my constituency, have told me that they just get their heads down and get on with their jobs. The issue for them is not so much the protection of the controlled sector but the fact that it has to fit within defined criteria. Other sectors have had safeguards and guarantees that they felt were necessary for the protection of their sector, but there are still serious concerns about the controlled sector.

8186. Many people still have grave concerns about the issue of employment. It is not fair or right that one section of teachers has an advantage over others when applying for a job. We must put down a marker to show our concern, and I think that the right place to do that is in the report. I appreciate that some members feel that this issue has been brought to the table only today. However, it has been rehearsed numerous times in the past, ad infinitum, so I do not want to labour the point. I would be happy if we had the time to consider the proposal and put it to a vote next week. Do we have time?

8187. The Committee Clerk: Time is very tight because the Committee must approve its entire report at next week’s meeting. I do not know whether the Committee wants to put it to a vote. A draft could be prepared in advance.

8188. The Chairperson: Yes; that is fair. We will supply members with a draft of my remarks and a specific proposal as soon as possible. We can vote next week on whether that should be included in the report.

8189. Mr O’Dowd: We are at the point of including papers on party positions in the report. That is where we are at. If that is what we need to do, that is what we need to do. There is a possibility that, for the first time, the Education Committee will have an agreed report. We are on the verge of having that. I do not see any need for the proposal. I do not need to read an Education Committee report to know what the DUP’s or Ulster Unionist Party’s position is. It airs that vocally, both privately and publicly, and is quite entitled to do so. However, do we really need to include that in the Education Committee’s report on the Education Bill?

8190. The Chairperson: As has been previously said by members around the table, it would be good to get a consensus that there are serious issues within the controlled sector that need to be addressed.

8191. Mr O’Dowd: There are serious issues across all the sectors. One of the good things —

8192. The Chairperson: Maybe I could get finishing.

8193. Mr O’Dowd: I am sorry for interrupting, Chairperson, but just let me finish this. One of the good things about working in the Education Committee is that I get to meet people from all sectors. I not only meet and talk to principals from maintained schools but those from the controlled sector, too. I am sure that it is the same for you.

8194. The Chairperson: It is the same for us all. We have already spent this morning looking at the sectoral body for the controlled sector. That sector is at a clear disadvantage. It does not have a coherent structure in place within the timescale that has been allowed, and I am not convinced that the Department is not leading the controlled sector down a particular road.

8195. The Hansard reports and the minutes of previous meetings will show that the Committee accepted that that sector needed additional resources to bring it close to the levels of other sectors — and we have heard from C na G, Northern Ireland Council for Integrated Education (NICIE) and CCMS. Therefore, it would be only right and fair from an educational perspective, not a party political one, to address that. Everybody has agreed that there are concerns; the Committee has highlighted concerns in other sectors, so there is no reason not to do so in this sector. Therefore, we will circulate to members the bones of the proposal that I outlined and the Committee will decide on it next week. Is that OK?

8196. Mr B McCrea: Chairperson, you know that you have my support. The Committee has not conducted many inquiries because it has had so much legislation to deal with. What are the chances of getting an inquiry into the controlled sector?

8197. The Chairperson: Will members consider the issue of inquiries for next week? The other matter that I will put on the table is the report by Deloitte MCS Limited, which clearly indicated that there was underachievement among working-class Protestant boys.

8198. Mr B McCrea: I am wholeheartedly with the Chairperson; the Committee must look at both those issues.

8199. Mr D Bradley: I have already proposed an inquiry into the funding of primary school education. I was told at the time that that would be put on hold until such time as the scrutiny of the Education Bill was finished.

8200. The Chairperson: Will the Committee have the Clerk bring back a report on that in light of comments from Basil, Dominic and myself?

8201. The Committee Clerk: Most importantly, I must mention to the Committee the policy reviews and the likelihood of the second education Bill arriving shortly, as discussed earlier. The important review of special educational needs and inclusion is out for consultation at the moment. The Department has told me that the all-embracing review of early years is about to come back to the Committee. Bearing in mind the volume of work that emerged from the first Education Bill, members must consider whether one three- to three-and-a-half hour meeting each week will cover the workload if a second education Bill, two other reviews and an inquiry arrive all at once.

8202. However, I can bring all of that to the Committee in a paper that will show members what is timetabled for departmental policy scrutiny, which is part and parcel of the Committee’s statutory responsibility.

8203. The Chairperson: Are members happy with that approach?

Members indicated assent.

8204. Mr B McCrea: I understand that that the Committee has a responsibility to consider legislation and areas under statute, but there is no doubt that the way to deal with a truculent Committee is to drown it in paper. This Committee keeps being given loads of things to do, without actually getting to grips with the very real issues that exist. The three issues that have been raised are really important and members must find some way to deal with them. If that does not happen this side of Christmas, then they must definitely be made a priority once the Bill is passed. The Committee will just have to tell the Department that it cannot deal with some business; it must tackle issues that it considers important.

8205. Mrs M Bradley: Sure, we will work over the Christmas recess.

8206. Mr B McCrea: Mary, I wish you well.

8207. Mr O’Dowd: I have no difficulty looking at each inquiry as it is proposed, but an inquiry is held in order to reach a conclusion; one does not have a conclusion then an inquiry. I think it is great that after 30 years of having control of the education boards, members have copped on that there is a problem with the controlled sector.

8208. Mr B McCrea: You do not accept that the controlled sector exists.

8209. Mr O’Dowd: The controlled sector —

8210. Mr B McCrea: You think that there is no problem —

8211. The Chairperson: May I have some control of the meeting, please? The Clerk will bring forward a paper as agreed.

8212. There is another important issue for us to deal with. The Committee has a work programme, and next week we will go through the Committee report. I referred to the issue previously, but now we have to make a decision one way or the other on the time of the Education Committee meeting. I had asked whether it was possible for us to move our meetings from the morning to the afternoon. I appreciate that that is a problem for Alastair, because he is a member of the Committee on Standards and Privileges, which meets on a Wednesday afternoon.

8213. Mrs M Bradley: I have a problem, but I am working on it.

8214. The Chairperson: Can we have a consensus on this? It is very difficult to facilitate everybody, but the reason for changing the time of our meetings is that one of our members is the Deputy Chairperson of another Committee that meets at the same time. I am not doing it because that member happens to be in my party; if any other member had come to me with the same problem, we would have brought the matter to you. I want to make that clear. Can we leave it that the Committee is happy to move to afternoon meetings as an interim arrangement to see how it works? Then, if we find that the arrangement is problematic, we can revisit it.

8215. Mr O’Dowd: What time are we agreeing to move to?

8216. The Chairperson: 2.00 pm on a Wednesday afternoon.

8217. Mr D Bradley: Anything is better than Friday morning.

8218. The Chairperson: Yes; we do not want to move back to Friday mornings. You know the difficulties that we had with that.

8219. So, the Committee will meet on Wednesday afternoons from 7 October 2009. Clerk, can you explain the reason for that date?

8220. The Committee Clerk: We have a long report to clear next week and the deliberations could take longer than the morning meeting. Therefore, I suggest that we meet at 10.00 am next week as usual in Room 144, with the option of going on into the afternoon should we need to. Thereafter, from 7 October, we will move to 2.00 pm on Wednesday afternoons for an interim period.

8221. The Chairperson: Members must bring all their folders next week. Thank you very much for your indulgence, which is very much appreciated.

30 September 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr John McCallister
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Alistair Ross

8222. The Chairperson of the Committee for Education (Mr Storey): I welcome Patricia Casey from the Bill Office and Damian Martin, the Clerk Assistant, who have assisted the Committee with its work on the Bill, as they will do today. I also welcome officials from the Department, who, I am sure, relish coming up the hill on Wednesday mornings.

8223. Version 4 is the updated version of the draft report. I hope that all members have a copy. You may discard version 3 by giving it to staff, who will dispose of it in an environmentally friendly way. Version 4 of the draft report commences with the title page of the Committee report. The yellow flags at the right-hand side indicate the different sections of the report, which was circulated as a separate item in the Committee folder. Decisions taken at last week’s clause-by-clause consideration have been fully reflected in version 4. Changes to the previous version have been tracked in blue.

8224. Having agreed the Committee’s decision on almost all clauses and schedules at last week’s meeting, there are only a few issues from that meeting to revisit before we start the process of formally approving the draft report itself.

8225. Before we start, I ask members to turn to tab 5 of their packs, where they will find the Clerk’s note on the final session on the Bill. Immediately behind it at point 1 is the Clerk’s note on the indicative timing of the Consideration Stage debate on the Education Bill. Members should note that the earliest date that the Minister can choose for that debate is the week commencing Monday 12 October 2009. I refer members to the attached guide, particularly to the paragraph on the deadline for tabling amendments, which is 9.30 am on Thursday 8 October. The earliest date that the Minister can come to the Assembly for Consideration Stage is 12 October.

8226. The Committee Clerk: An informal indication has been made that Consideration Stage may be scheduled for Tuesday 13 October 2009.

8227. The Chairperson: Members should note that the Hallowe’en recess will affect the timing of Further Consideration Stage.

8228. The Committee Clerk: I admit to an error in that regard. The date of 26 October did not take into account the Hallowe’en recess. Therefore, some of the dates that are shown for Further Consideration Stage and Final Stage are slightly incorrect. We can amend that (Inaudible due to mobile phone interference).

8229. Mr B McCrea: When is the deadline for tabling amendments?

8230. The Chairperson: Thursday 8 October, which is the Thursday before Consideration Stage — that is, if Consideration Stage is on the Order Paper for 13 October.

8231. Mr B McCrea: Therefore if Consideration Stage is scheduled for 13 October, amendments must be tabled by Thursday 8 October. By what time must they be tabled?

8232. The Committee Clerk: Nine-thirty in the morning.

8233. The Chairperson: We will proceed to outstanding issues. I beg your indulgence for a moment. I refer members to version 4 of the draft report.

8234. Paragraphs 46 to 49 on pages 20 to 22 of the draft report summarise last week’s deliberations. At the bottom of page 21, members should note that the reference to “paragraph (2)(2)(6)" of schedule 1 will be changed to “paragraph (2)(2)(b)"; that was a typo. Members should also note that the reference to schedule 11 will be corrected to schedule 1.

8235. Someone’s mobile phone is on, and it is not mine.

8236. Mr D Bradley: It is mine; sorry.

8237. The Chairperson: I refer members to the draft amendments at the top of page 22. Having had the benefit of advice this morning on the issues that were raised at last week’s meeting, does the Deputy Chairperson have any comments that he wishes the Committee to consider in light of that legal opinion?

8238. Mr D Bradley: I listened carefully to the legal adviser, and I accept the points that he made.

8239. The Chairperson: The Question that the Committee recommend to the Assembly that schedule 1 be amended by the insertion of a new head as set out at the top of page 22 of the draft report. The amendment is as follows: In page 31, paragraph 2, line 23, at end insert:

“and: (c) that the members, as a group, are representative of the community in Northern Ireland.2"

8240. The Committee Clerk: It would be better if you put the question to the Committee so that members can indicate whether they support the amendment.

8241. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the schedule be amended as follows: In page 31, paragraph 2, line 23, at end insert:

“and:

Question put.

The Committee divided: Ayes 6; Noes 2.

AYES

Mr D Bradley, Mr Lunn, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Schedule 1, subject to the Committee’s proposed amendment, agreed to.

8242. The Chairperson: We come to the second proposed amendment to schedule 1. The Question is that the Committee recommend to the Assembly that schedule 1 be amended by the insertion of a new paragraph, which is set out at the top of page 22 of the Committee draft report. I beg to move

8243. Mr B McCrea: Where are we?

8244. Mr O’Dowd: We will never get out of here by twelve o’clock.

8245. The Committee Clerk: The Committee is considering the second proposed amendment to insert a new paragraph at the end of paragraph 22 of schedule 1 on page 36 that defines “representative of the community of Northern Ireland".

8246. Mr B McCrea: Who proposed that amendment? Did we bring it forward?

8247. The Committee Clerk: The Committee drafted it.

8248. The Chairperson: I beg to move

That the Committee recommend to the Assembly that the schedule be amended as follows: In page 36, paragraph 22, at end insert:

“‘Representative of the community in Northern Ireland’"

23.— (1) In this Schedule, and without prejudice to the generality of the words, a membership “representative of the community in Northern Ireland" shall in particular include–

persons with experience of the controlled, maintained, grant-maintained integrated, Irish-medium and voluntary grammar school sectors; and,

persons from the local government districts, where “local government district" has the same meaning as in the Local Government (Boundaries) Act (Northern Ireland) 2008."

Question put.

The Committee divided: Ayes 2; Noes 2;

AYES

Mr D Bradley, Mr Lunn.

NOES

Mr O’Dowd, Mrs O’Neill.

8249. The Chairperson: Basil McCrea, Michelle McIlveen, Alastair Ross, and Mervyn Storey have abstained.

Question accordingly negatived.

8250. The Chairperson: The next issue from last week is a proposed amendment to clause 32. Will members turn to paragraph 266 of the draft report, which is on page 104? Members will see at the bottom of the page —

8251. Mr B McCrea: Where are we?

8252. The Chairperson: Clause 32, page 104. You will see at the bottom of that page the proposed amendment to clause 32. At last week’s meeting, that amendment was agreed in principle, with the precise wording to be drafted by the Clerk. The amendment would allow the education and skills authority to impose a scheme of management where a submitting authority submits a scheme of management that does not comply with the regulations and schemes of management under clause 30. Members will recall that at last week’s meeting the Committee agreed to recommend to the Assembly that clause 30 be amended to include a requirement for regulations to be made as to the form and content of schemes of management. That is contained in paragraph 264 of the draft report.

8253. The proposed amendment to clause 32 flows from the requirement on the Department to make regulations. It is a consequential amendment, and it follows that submitting authorities should submit schemes that comply with regulations that the Assembly has approved. The Question is that the Committee recommend to the Assembly that clause 32 be amended as set out in paragraph 266 of the draft report. That amendment states:

“leave out from ‘subsection’ to ‘cannot’ in line 2 on page 18 and insert ‘section 31(1)(b) does not comply with regulations under section 30(6) or does not accord with any guidance issued by ESA under section 31(3) and cannot (in either case)’."

8254. The Committee Clerk: It is a question of whether the Committee is in favour of the amendment. It is a consequential amendment to an amendment that was agreed by the Committee.

8255. Mr D Bradley: Does this amendment come from the Committee?

8256. Mr B McCrea: Is the effect of that amendment that a scheme complies with the regulations, or, is it that the regulations will have to go through the Assembly by affirmative resolution?

8257. The Chairperson: Yes.

8258. I beg to move

8259. That the Committee recommend to the Assembly that the clause be amended as follows:

8260. In page 17, line 42, leave out from

8261. “subsection" to “cannot" in line 2 on page 18 and insert

“section 31(1)(b) does not comply with regulations under section 30(6) or does not accord with any guidance issued by ESA under section 31(3) and cannot (in either case)."

Question put.

The Committee divided: Ayes 6; Noes 2.

AYES

Mr D Bradley, Mr Lunn, Mr B McCrea, Miss McIlveen, Mr Ross, Mr Storey.

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Clause 30, subject to the Committee’s proposed amendment, agreed to.

8262. Mr Lunn: Are these votes still recorded?

8263. The Chairperson: Yes.

8264. The Committee Clerk: The decisions made in the last few minutes on Committee amendments will be reflected in the Committee’s report. As the Committee goes through the report to agree it, we will strike that out as appropriate and amend the report for final approval. It is already in the report as either/or.

8265. An item has been tabled for members’ consideration in relation to amendments received this morning from the Department. It is for the Committee to decide whether or not it wishes to consider that.

8266. Mr B McCrea: Where are we now?

8267. The Chairperson: You should have in front of you an e-mail from Eve Stewart. It says that:

“We have just finalised 2 additional amendments and I am forwarding them on for the Committee for information. They relate to the increase in ESA numbers and ensuring governors commitment in Irish speaking schools."

8268. That e-mail includes the wording of the amendments:

“Clause 30, page 17, line 3 at end insert —

‘( ) The scheme of management for an Irish speaking school shall require the Board of Governors to use its best endeavours to ensure that the management, control and ethos of the school are such as are likely to ensure the continuing viability of the school as an Irish speaking school.

( ) The scheme of management for a grant-aided school for which a part is Irish speaking shall require the Board of Governors to use its best endeavours to ensure that the management, control and ethos of the schools are such as are likely to ensure the continuing viability of the Irish speaking part of the school.’"

8269. Mr B McCrea: Is it necessary to deal with that today? Given that it has just been tabled, I would prefer to deal with it next week after I have had a chance to look at it.

8270. The Committee Clerk: It will not be reflected in the Committee’s report. If it is the will of the Committee just to note that the amendment was received, I can attach that to the report.

8271. Mr B McCrea: I am happy for it to be noted, but I cannot decide on it without having had time to consider it.

8272. The Chairperson: This highlights the difficulty that the Committee has had repeatedly in not having matters brought to it in a timely way. On the day that we are signing off the report, the Department brings us another amendment. Therefore, it should be just noted.

8273. The Committee Clerk: The amendment to increase the membership of the ESA was dealt with last week. The Minister’s proposal was for an increase from 11 to no more than 14 members. The Committee raised that issue at last week’s meeting. Therefore, it has, in effect, been dealt with and recorded in the report. Therefore it is the second amendment to clause 30 that the Committee is saying that there is no time to consider, so it will not be reflected in the Committee’s report other than it was received this morning and noted.

8274. Mr Lunn: The Committee has always had the problem of matters coming to it very late in the day. I can sort of sympathise with Basil’s saying that he needs a week to consider it. For once, however, the amendment is in plain language, the Queen’s English, and I can understand it.

8275. The Chairperson: It concerns Irish, but it is in the Queen’s English. [Laughter.] There is an irony in that, but we will not go there.

8276. Mr Lunn: I used that term deliberately.

8277. The Chairperson: Thanks, Trevor.

8278. Mr Lunn: The point is, however, that the amendment is simple: it just requires a board of governors to use its best endeavours; it is not prescriptive. Sometimes, perhaps, the Committee could just look at something and take a decision on it.

8279. Mr D Bradley: The amendment applies to Irish-medium schools and boards of governors; it does not affect schools in any other sector. It is purely to protect the ethos of Irish-medium schools. There is no threat to any other sector. Therefore, the amendment is not contentious. I would be happy to approve it today.

8280. The Chairperson: One difficulty that arises, particularly from the second paragraph, is the phrase:

“shall require the Board of Governors to use its best endeavours to ensure that the management, control and ethos of the school are such as is likely to ensure the continuing viability of the school as an Irish speaking school".

8281. That places a pretty strong requirement on a board of governors. It may be the mind of the Committee to seek legal opinion about such a strong requirement being placed on a board of governors with the words “its best endeavours". We have not seen that in the legislation for other sectors. Therefore, we have a proposal from Basil that the Committee note the amendment.

8282. Mr B McCrea: Yes.

8283. The Chairperson: Is the Committee in favour of noting that the amendment was brought to the Committee at this stage?

Question put.

The Committee divided: Ayes 6; Noes 2.

AYES

Mr B McCrea, Miss McIlveen, Mr O’Dowd, Mrs O’Neill, Mr Ross, Mr Storey.

NOES

Mr D Bradley, Mr Lunn.

Question accordingly agreed to.

Resolved:

That the Committee take note of the proposed departmental amendments to clause 30.

8284. Mr O’Dowd: I want to clarify our position: Sinn Féin supports the amendments; however, it is fair for a party to request another week to judge. We endorse the amendments as proposed.

8285. The Chairperson: I appreciate that.

8286. The Chairperson: Are members content to seek legal advice and consider the matter at next week’s meeting?

Members indicated assent.

8287. The Chairperson: Do members have any questions?

8288. Mr D Bradley: Given that both amendments have been discussed at today’s meeting, will they be included in the report?

8289. The Committee Clerk: Yes; the discussion will be included in the Hansard report, and the draft report will outline that the Committee noted the amendments.

8290. The Chairperson: I want to raise the issue that we mentioned at the conclusion of last week’s meeting. I draw members’ attention to paragraph 148, on pages 59 and 60 of the report, which arose from a proposal to include a recommendation on the controlled sector. I agreed to circulate a wording to members for consideration at last week’s meeting. The comments on the sectoral body for the controlled sector appear in paragraphs 53 to 73. The paragraphs endeavour to reflect some members’ concerns about the controlled sector.

8291. Are members content to include a paragraph in the report, as set out in paragraph 148 of the draft report, including a recommendation that the Committee request that the Minister take urgent action to address those issues and find the resources to make immediate progress to resolve them?

8292. Mr O’Dowd: As I said last week, we have concerns about including what is, essentially, a political statement rather than a reflection of the scrutiny of the Bill. Earlier in the report, there are comments from members that reflect those concerns as comments made in the Committee; I have no difficulty with their inclusion in the Bill. However, I have a difficulty with the inclusion of a recommendation on one sector or subject. The issues behind the recommendation can, and will, be debated at length in the Committee; indeed, they should have debated and resolved long before the Assembly was established. Having read the recommendation, I am unsure whether it is an alibi for the controlled sector or an apology to it for having done nothing in the past. I cannot support the inclusion of such a recommendation in the report.

8293. The Chairperson: It is neither an apology nor an alibi. It is a defence of a sector that has played second fiddle to other sectors that have only been interested in their own institutions and that have paid lip-service to equality, inclusion and the recognition of the existence of other sectors.

8294. We have seen enough, over the past months, of sectors that are interested only in self-preservation. The controlled sector, under the umbrella of the education and library boards, played, and does play, its full role in promoting equality; it excludes none and puts no barriers in front of any children coming through the doors of its schools, unlike other sectors that have prerequisites and pre-requirements whereby people have to sign up to certain ideologies.

8295. Mr O’Dowd: Are you talking about the grammar school sector?

8296. The Chairperson: Sorry?

8297. Mr O’Dowd: Are you talking about the grammar school sector?

8298. The Chairperson: No, not the grammar school sector; the Catholic certificate is a prime example. That is a major concern. I for one will not allow any sector to be left isolated in the way that the controlled sector has been on many issues. The proposal is a way of ensuring that those concerns are addressed.

8299. Are there any other comments?

8300. Mr O’Dowd: One of the purposes of the education and skills authority and of the Bill that we have been scrutinising is to ensure that no sector is left behind. There are sectors that need support; I am not arguing against raising some sectors to the level of others. My concern is that we are including a statement and a recommendation in a Committee report that is mainly a party-political stance. Having listened to your good self, Chairperson, I am now convinced that it is a mixture of an alibi and an apology to the controlled sector rather than a serious attempt to move forward the issues that have to be resolved in relation to that sector.

8301. Mr B McCrea: May I ask the Committee Clerk whether the statement and the recommendation are competent? John asked whether such recommendations should be in a Bill.

8302. The Committee Clerk: One can include recommendations in a Bill report. This statement does not relate to an amendment, which would go before the House. Its competence, in that sense, is not to be tested; however, a Committee can make recommendations in a Bill report if the information has been presented and the Committee has considered it.

8303. Mr B McCrea: Thank you; that is very helpful. I share your concern, Chairperson, that the controlled sector was not able to have an influence on the progress of the Bill. Without making a political point, it is important that we are inclusive on all the issues and that there should be a level playing field for all. For that reason I am happy to support it.

8304. The Chairperson: This highlights the suspicions and concerns that some people have. On the day that we are concluding the report on the first Bill, having been promised that we would have sight of the second Bill, when do we get the second Bill? Today. After being told that it was not prepared and that we were going to see it in tranches or in bits and pieces, all of a sudden the Bill appears.

8305. I have never been known to be a sceptic or to be suspicious, but I do not see too many people coming up to the mark about what was going on in relation to a particular sector. If the maintained sector had been treated in such a way, the people with red hats would have been knocking down the door to talk to the Committee. I am very concerned that we get sight of the second Bill just today. Nobody, in the time available to us, will be able to go through the second Bill, unless we read through it for the next half an hour. That is why, in the report, we will reflect whether the Committee agrees. That is not a party-political point; it is a genuine concern on behalf of a sector that owns £2·3 billion of the education estate and educates 98% of the Protestant children in Northern Ireland.

8306. Mr O’Dowd: My understanding is that the second Bill will come under the scrutiny of the Committee, the Executive and the Assembly. If you were getting excited about being presented with a fait accompli that said how things were going to be, I would be jumping up and down with you. However, the fact of the matter is that, as was the case with the first Bill, there is a lengthy process to go through. If there are genuine concerns about the second Bill, they will have to be dealt with, as was the case with the first Bill, and, we hope, we will reach a conclusion in due course.

8307. The strength behind any sector comes first from the people within that sector, but more importantly, it is given by the political leadership in society. The maintained sector got its act together in the early 1980s. It moved forward and kicked in a few doors to make its voice heard. Even when the Council for Catholic Maintained Schools (CCMS) was formed, it continued to fight the system for several years to make sure that its voice was heard.

8308. Even at this stage of setting up the controlled sector support body, there is a responsibility on all of us and the Department to support it. There will be a fight, and the people best placed to lead that fight will be the new controlled sector support body. That body should be regular visitors to this Committee and to all our offices. Those are the people who will turn the controlled sector around, with our support.

8309. Mr D Bradley: I do not think that this is an accurate reflection of what happened last week. Chairperson, at the end of last week’s meeting, you made a statement that I asked you to circulate to Committee members during the week so that we would have a chance to share and discuss it with our parties. That did not happen. The statement that is included in the draft final version of the report appeared without the previous statement being circulated as agreed at the meeting. I do not believe that it is a true reflection of what happened at last week’s meeting, and, therefore, it should not be contained in the report.

8310. The Chairperson: Are there any other comments?

8311. Mr B McCrea: I have already made my position clear. There may be differences of interpretation about what went on at last week’s meeting — and I take Dominic’s point — but it remains a fundamental issue that there is an omission of input from the controlled sector, which does have an influence. I have expressed to officials that there must be some form of representative body so that we can have a level playing field.

8312. As Mr O’Dowd said earlier, other sectors got their act together. He said that they “kicked in a few doors" at a time. It is right and proper that they put their views across. The fact is that other sectors did not do so, and we must find some form of balance.

8313. I know that the Chairperson can defend himself, but I add my support to the fact that, when we started this marathon journey, we were promised that we would be able to look at the two Bills together and that there would be cohesion and an holistic approach. I think that that intention is included in the draft report, and it has not been possible to deliver on it. We have repeatedly said that that is important.

8314. At one stage, we wanted the two Bills to be combined in one single Bill. We were told that that was not possible, for various reasons, but that we should not worry, because there would be an overlap so that we could treat them as one for the purposes of workflow. That has not happened, which rightly raises some concerns, and the Chairperson is right to highlight them.

8315. Mr Lunn: Not in my most generous moment could I think that it is a coincidence that the second Bill is produced on the very day that we are supposed to be signing off on the first Bill. I think that it is a disgrace. We were originally promised that there would be an overlap in the two Bills; it was as simple as that.

8316. If I remember rightly, we were supposed to see the second Bill before recess to give us time to examine the effect of one on the other and to compare them. It is that basic: it was promised. Once again, it is par for the course; we are being shoved into a corner and are having to take action on the first Bill without having had the opportunity to read the second. I do not know what we can do about that, but it keeps happening. Indeed, I put on the record that this is the most serious episode of that nature yet.

8317. Chairperson, we were asked to consider a statement that you read out last week. I indicated that I was not too happy about making a judgment without having seen that statement in writing. Surely, as Dominic said, it would have been fairly simple to circulate it. However, I am reasonably content that the proposal in the draft report accurately reflects the statement that you read out. Therefore, I am not going to make too much of that issue. It would have been helpful to have been given a written copy of your exact words, but the fact that we were not does not preclude me from making a judgement on what is before us. For the record, I support the proposal.

8318. The Chairperson: I apologise for the fact that the statement was not sent out to members individually. The statement is in the Hansard report, but Dominic is right that we said that each member would receive a copy. It does not change the context, and I appreciate Trevor’s comments.

8319. This is not a party political broadcast; it is a serious situation concerning a major education sector in Northern Ireland. That sector is not a minority, as the Minister describes some other sectors. I am deeply disappointed at the shabby way in which the Department has treated the sector, particularly by producing the second Bill today. Our acceptance of the first Bill depends entirely on what is contained in the second Bill. The Minister and the departmental officials, who are here today, need to listen carefully to the message coming from the Committee. If the serious issues are not addressed, there could be the same sort of train wreck that some people mentioned months ago in regard to other issues. The Committee has now made its comments.

8320. Are members content to include paragraph 148, as it appears in the draft report and including the recommendation, in the Committee’s report?

Members indicated dissent.

8321. The Chairperson: Basil McCrea, Trevor Lunn, Alastair Ross, Michelle McIlveen and I are in favour. John O’Dowd, Michelle O’Neill and Dominic Bradley are against.

8322. Now that those bits and pieces have been tidied up, I propose that we move to the draft report. We are not doing too badly, and I appreciate your help. I remind members that we have made our decisions on the clauses and schedules. Rather than revisit those decisions, we are here to satisfy ourselves that the draft report reflects the Committee’s scrutiny and decisions. I propose that we work our way through the report by grouping its paragraphs in manageable bites and, where possible, by clause or groups of clauses, and give Members an opportunity to comment.

8323. As our first group, I suggest that we take the title page, the page detailing membership and powers and the contents page. Are members content?

Members indicated assent.

8324. The Chairperson: As our second group, I ask Members for comments on the introduction to the report, comprising paragraphs 1 to 25.

8325. Mr O’Dowd: Paragraph 5 states:

“The Chairperson outlined the Committee’s key concerns, summarized as follows".

8326. However, the Committee had made no decisions on the Bill at that stage. How, therefore, could the Chairperson have outlined the Committee’s concerns? Part of that paragraph should, in my opinion, be rephrased:

8327. The Committee Clerk: Remember that the Committee carried out a substantial pre-introduction scrutiny, and several papers and letters from the Committee to the Department that outlined quite a number of concerns were on record. That sentence reflects those concerns that were still being considered by the Committee and indeed at the debate on Second Stage. The sentence did not reflect the concerns that were in front of the Committee at the point of scrutiny at Committee Stage, because that had not yet commenced.

8328. The Chairperson: Would it be better to rephrase that sentence: “The Chairperson outlined key concerns"? The concerns would not, therefore, be attributed to the Committee.

8329. Mr O’Dowd: I would be happier with that.

8330. The Chairperson: Are all members happy enough with that?

Members indicated assent.

8331. The Chairperson: Do members have any further comments?

8332. Mr O’Dowd: Sorry, Chairperson, but there is a similar instance in paragraph 10 on page 6:

“Members will note that despite these policy changes to the Bill, the Committee continued to have a number of concerns with the Bill, as reflected".

8333. Perhaps that could be changed to “there remained a number of concerns" or perhaps “Committee members continued to have concerns".

8334. The Chairperson: Would you like the word “members" to be inserted?

8335. Mr O’Dowd: Yes, please.

8336. The Chairperson: Are members happy enough? Does everyone know what we have decided? Paragraph 10 on page 6 would read, “Committee members will note".

8337. The Committee Clerk: No; the insertion of the word “members" comes after the second “Committee" in that paragraph.

8338. The Chairperson: OK. John, are you satisfied with that?

8339. Mr O’Dowd: Will you read it, please?

8340. The Committee Clerk: “Members [of the Assembly] will note that despite these policy changes to the Bill, Committee members —

8341. Mr O’Dowd: It should read “some Committee members" or “a number of Committee members".

8342. The Chairperson: “Some" is preferable. Are members happy with that?

8343. Mr O’Dowd: OK.

8344. Mr B McCrea: The “some" is sometimes greater than the whole.

8345. The Chairperson: I am still struggling with the mathematical exposition that we received in the House the other day. Do members have any other comments? We are still considering paragraphs 1 to 25, so perhaps you would have a glance over those. If any members want to dissent, I want to ensure that that is recorded accurately. I do not want any member to feel trapped by the Committee.

8346. Are members content with paragraphs 1 to 25, as amended?

Members indicated assent.

8347. The Chairperson: We move on to paragraphs 26 to 28, which relate to clause 1. We are now on page 12. Are members content? Any member who is not content, please indicate accordingly.

8348. Mr O’Dowd: Give me one second, please, Chairperson.

8349. Mr O’Dowd: Again, it is a matter of emphasis; paragraph 37 on page 16 —

8350. The Chairperson: We are dealing with paragraphs 26 to 28. We will come to that in a minute or two. I would like to be at paragraph 36, but that is just a wish on my part.

8351. Mr O’Dowd: I am away ahead of myself.

8352. The Chairperson: Are members content with paragraphs 26 to 28?

Members indicated assent.

8353. The Chairperson: We now move to paragraphs 29 to 35, which also relate to schedule 1. These paragraphs deal with the number of ESA members. Members are reminded that the blue text represents what is being inserted as a result of the decisions taken last week.

8354. Are members content with paragraphs 29 to 35?

Members indicated assent.

8355. The Chairperson: OK. We now move to paragraphs 36 to 49, which relate to schedule 1 and the ESA membership being representative of the community in Northern Ireland. John had an issue with paragraph 37.

8356. Mr O’Dowd: Paragraph 37 states that:

“The Committee, having had sight of the Office of the Commissioner’s of Public Appointment’s (OCPA) Code of Practice, remained concerned".

In my opinion, that should read, “Some of the Committee members, having had sight" or “A number of the Committee members, having had sight". The Committee did not take a formal position on that.

8357. The Chairperson: It is accurate to say, as the report does:

“The Committee, having had sight of the Office of the Commissioner’s of Public Appointment’s (OCPA) Code of Practice, remained concerned".

Do you want to reflect that some members remain concerned?

8358. Mr O’Dowd: Yes.

8359. The Chairperson: Should we include “Some Committee members"?

8360. Mr O’Dowd: Yes, whatever way that fits into that sentence.

8361. The Chairperson: We need to be clear about where we include it.

8362. Mr O’Dowd: Clearly, it is accurate that the Committee had sight of the report.

8363. The Chairperson: After the reference to the code of practice, we could include the phrase, “some Committee members remain concerned".

8364. Mr O’Dowd: Yes.

8365. The Chairperson: OK.

8366. We are still looking at paragraphs 36 to 49.

8367. The Committee Clerk: In paragraph 49, we will strike out the part of the amendment that members did not agree in earlier sessions. However, we will leave in the amendment that states:

“(c) that the members, as a group, are representative of the community in Northern Ireland’]"

That was agreed by the majority of the Committee this morning.

8368. The Chairperson: Are members clear about what we will do? We are on page 22. We did not agree the amendment to schedule 1, page 36, so that paragraph will not appear in the report. However, the amendment above that will be included. It states:

“(c) that the members, as a group, are representative of the community in Northern Ireland’]"

8369. Are members content?

8370. Mr O’Dowd: I am sorry: what are we signing off on?

8371. The Chairperson: We are on page 22. This morning, we did not agree to include —

8372. Mr O’Dowd: Yes; sorry.

8373. The Chairperson: The only amendment that will appear in the report is the top one, which states:

“(c) that the members, as a group, are representative of the community in Northern Ireland’]"

8374. OK?

8375. Mr O’Dowd: Paragraph 41 states that:

“The advice to the Committee dealt with a number of issues and concluded:"

There then follows a number of statements. At that stage of our deliberations, did we take positions on any of those matters?

8376. The Chairperson: No, although the paper states “and concluded".

8377. Mr O’Dowd: Should it state “and observed"?

8378. The Chairperson: We are talking about the advice to the Committee. Are you questioning the use of the word “concluded"?

8379. Mr O’Dowd: Does it give a sense that those five bullet points were a conclusion or an agreement of the Committee?

8380. The Chairperson: Is that advice to the Committee rather than its conclusion?

8381. The Committee Clerk: It is a summary of the advice that the Committee received.

8382. Mr O’Dowd: If that were the case, it should read, “The advice to the Committee was" instead of: “The advice to the Committee dealt with a number of issues and concluded:"

The latter almost reads as though the Committee had reached the conclusion.

8383. The Chairperson: Might “concluded" be changed to “included"?

8384. Mr O’Dowd: Yes, otherwise the wording is open to interpretation.

8385. Mr Ross: Have the passages printed in black not already been agreed in previous meetings? Are we just going over that again? I have been a member of the Committee for only a couple of weeks, but I remember going through those points.

8386. The Chairperson: The Committee is trying to compile a factual summary of all of its work. We have gone through the clauses, but this document will contain the legal advice that we received and opinions that were expressed by members. Is that correct, Clerk?

8387. Mr Ross: The passages in blue are the changes made since the last time we looked at the matter.

8388. The Committee Clerk: All the rest of the text was in front of the Committee in versions 1, 2 and 3 of the draft report. It was drawn to the Committee’s attention that that would be included in the report, subject to the Committee’s final agreement. The whole sweep through is being done only now, but that text was brought to the Committee a number of weeks ago.

8389. The Chairperson: However, it would not change the emphasis to replace “concluded" with “included". Thus, the passage would read, “The advice to the Committee dealt with a number of issues and included". The document then lists the factual position. Are members content?

Members indicated assent.

8390. The Chairperson: Are members content with paragraphs 36 to 49, as amended?

Members indicated assent.

8391. The Chairperson: Paragraphs 50 to 52 relate to Assembly disqualification. Are members content?

Members indicated assent.

8392. The Chairperson: Paragraphs 53 to 73 —

8393. Mr B McCrea: Before the Committee moves on, and it may not be appropriate to amend it at this stage, but we debated whether MLAs should be involved. I now agree with paragraph 51, which states:

“There was general consensus that the demands on MLA’s time would necessarily limit their ability to serve on such bodies"

8394. However, my position was that I was not happy with the oversight that MLAs were able to provide on the workings of the ESA. I was concerned, and it was repeatedly said that the ESA is here only to serve the policies of the Minister of the day.

8395. The Clerk: The member is right; the Committee debated that, but it did not come to any conclusion, so no amendment to the schedule was discussed. The question is one of whether the words reflect any conclusion, but, from memory, there was no conclusion.

8396. Mr B McCrea: There may not have been a conclusion, but, as John O’Dowd has pointed out, we have discussed and noted many things. I do not know whether this is the appropriate place to deal with the matter — I will take advice on that — but I remain extremely concerned about it. Central to all that we have been saying is the fact the MLAs are not in a position to provide the necessary oversight of the ESA.

8397. The Chairperson: In fairness, that concern and your previous concerns are recorded in Hansard reports. Paragraph 51 does not state that the Committee has come to a conclusion on the matter. It simply states:

“There was general consensus that the demands on MLA’s time would necessarily limit their ability to serve on such bodies"

That relates to the issue of disqualification; whether they should be members of the ESA, rather than the power —

8398. Mr B McCrea: I quite accept that, and the issue might be better addressed elsewhere. I am happy enough that the Hansard report records that fact. However, when we get to the end of the report, I would like the Clerk to point out where my concern is recorded in the Committee’s report, because I read out a statement at the start of the meeting that —

8399. The Chairperson: That is recorded in last week’s Hansard report, and it will all be cross-referenced in the report. Correct me if I am wrong, but we are not proposing to give 108 Members all the documentation on what we have done — they would each have six lever-arch folders to take home.

8400. The Committee Clerk: It will be in the form of a CD.

8401. Mr B McCrea: Is there a video of us?

8402. The Chairperson: I would not go that far.

8403. The Committee Clerk: All those words will be available.

8404. Mr B McCrea: I am content. It was only that we were being quite precise about some Committee member’s comments on other issues. Although it may be a minority position, I believe that MLAs ought to have some form of oversight over the ESA process — if it is not done in the ESA committee, because of time constraints or whatever, it must be done somewhere else. I want to record the fact that there is a democratic deficit in the proposal. However, I will not add to the Committee Clerk’s burden.

8405. Mr O’Dowd: We are in danger of opening up a debate. The Education Committee is the oversight body.

8406. Mr B McCrea: I rest my case.

8407. The Chairperson: For John McCallister’s benefit, we are considering page 23 of the draft report.

8408. Mr B McCrea: For the benefit of Alastair Ross, who has been through this process only once, and John McCallister, who came in late, we should go back to the beginning and go through everything again.

8409. The Chairperson: Moving swiftly on —

8410. Mr McCallister: Are you not going to ask for a seconder? [Laughter.]

8411. The Chairperson: I will see you all in the cardiac unit. Are members content with paragraphs 50 to 52?

Members indicated assent.

8412. The Chairperson: Are members content with paragraphs 53 to 73? They deal with a considerable amount, particularly with respect to the controlled sector.

Members indicated assent.

8413. The Chairperson: Paragraphs 74 to 83 relate to schedule 1, particularly the number of ESA members. The Committee Clerk has indicated to me that at the end of paragraph 83 the amendment with respect to “representative of the community" has been repeated in error and will be removed. Paragraph 83 will state:

“The Committee agreed to recommend to the Assembly that Schedule be amended as set out above."

Everything else, including the section that is highlighted in yellow, will be taken out. Are members content?

Members indicated assent.

8414. The Chairperson: Are members content with paragraphs 84 to 90, which relate to youth services?

Members indicated assent.

8415. The Chairperson: Are members content with paragraphs 91 to 99, which relate to the proposed duty to encourage and facilitate development of Irish-medium and integrated education? Once again, this is an accurate reflection of what we discussed last week.

Members indicated assent.

8416. The Chairperson: Are members content with paragraphs 100 to 103, which relate to promoting the achievement of high standards of educational attainment?

Members indicated assent.

8417. The Chairperson: Are members content with paragraphs 104 to 112, which relate to the single employing authority and submitting authority?

8418. Mr O’Dowd: You say “the Committee decided". However, we usually use the phrase “the Committee agreed". That is the phrase we have been using thus far.

8419. The Chairperson: That is fine. We agree to agree on agree.

Members indicated assent.

8420. The Chairperson: Are members content with paragraphs 113 to 37, which relate to the change in employer status and employment regulations? I remind members that this is a reflection of what we agreed.

8421. Mr B McCrea: That is a big leap; you sneaked that one in.

8422. The Chairperson: I did. I am only following what is in front of me.

8423. The Committee Clerk: The grouping is according to subject area, not to the length of the text.

8424. Mr B McCrea: It is all right, John; it was an attempt at a little light relief.

Members indicated assent.

8425. The Chairperson: Are members content with paragraphs 138 to 144, which relate to the development of employment schemes?

Members indicated assent.

8426. The Chairperson: Are members content with paragraphs 145 to 148? I remind members that we decided those paragraphs earlier.

Members indicated assent.

8427. The Chairperson: Are members content with paragraphs 149 to 159, which relate to salaries and modification of employment law?

Members indicated assent.

8428. The Chairperson: Are members content with paragraphs 160 to 167, which relate to other functions of the ESA?

Members indicated assent.

8429. The Chairperson: Are members content with paragraphs 168 to 173, which relate to library and education and youth services?

Members indicated assent.

8430. The Chairperson: Are members content with paragraphs 174 to 181, which relate to the payment of capital grants and teachers’ superannuation?

Members indicated assent.

8431. The Chairperson: Are members content with paragraphs 182 to 191, which deal with the ESA’s ancillary powers and commercial activities?

Members indicated assent.

8432. The Chairperson: Are members content with paragraphs 192 to 195, which relate to the dissolution of the education and library boards; the Council for Catholic Maintained Schools (CCMS); the Northern Ireland Council for the Curriculum, Examinations and Assessment (CCEA); the Youth Council for Northern Ireland; and the Staff Commission for Education and Library Boards?

Members indicated assent.

8433. The Chairperson: Are members content with paragraphs 196 to 201, which relate to the general duties of the Department and DEL?

Members indicated assent.

8434. The Chairperson: Are members content with paragraphs 202 to 230, which relate to examinations, assessments, qualifications and curriculum?

8435. Mr O’Dowd: Paragraph 205 on page 81 states that:

“The Department’s written response to SEELB did not appear to recognise that there was any potential conflict of interest".

I think that the Committee had agreed with the Department that there was not a conflict of interest. Perhaps it should read:

“did not appear to recognise that there may be a potential conflict of interest".

8436. The Chairperson: Are Members happy with the wording “may be" rather than “was"?

Members indicated assent.

8437. The Chairperson: Are Members content with paragraphs 202 to 230, as amended?

Members indicated assent.

8438. The Chairperson: Are members content with paragraphs 231 to 237, which relate to amendments requested by DEL?

Members indicated assent.

8439. The Chairperson: Are members content with paragraphs 238 to 244, which relate to the powers of the General Teaching Council?

Members indicated assent.

8440. The Chairperson: There is no dissension, so we will move on. Are members content with paragraphs 245 to 268, which relate to schemes of management?

8441. The Committee Clerk: The Committee agreed an amendment to clause 32 earlier; therefore, the square brackets are removed from paragraphs 266 and 267 to reflect the Committee’s decision.

8442. The Chairperson: Are Members content?

Members indicated assent.

8443. The Chairperson: Are members content with paragraphs 269 to 291?

Members indicated assent.

8444. The Chairperson: Are members content with paragraphs 292 to 304, which relate to inspections and grants for educational and youth services?

Members indicated assent.

8445. The Chairperson: Are members content with paragraphs 305 to 308, which relate to the protection of children and young people?

Members indicated assent.

8446. The Chairperson: Are members content with paragraphs 309 to 313, which relate to Catholic maintained schools?

Members indicated assent.

8447. The Chairperson: Members, if I am moving too quickly, please say so. Are members content with paragraph 314?

Members indicated assent.

8448. The Chairperson: Are members content with paragraphs 315 to 323?

Members indicated assent.

8449. The Chairperson: Are members content with paragraphs 324 to 329?

Members indicated assent.

8450. The Chairperson: Are members content with paragraphs 330 to 341?

Members indicated assent.

8451. The Chairperson: Are members content with paragraphs 342 to 346?

Members indicated assent.

8452. The Chairperson: Are members content with paragraphs 347 to 363?

Members indicated assent.

8453. The Chairperson: Are members content with paragraphs 364 to 375?

Members indicated assent.

8454. The Chairperson: Are members content with paragraphs 376 to 380?

Members indicated assent.

8455. The Chairperson: We move now to the document containing final decisions on our clause-by-clause scrutiny. This section of the report sets out, in short form, the Committee’s decisions on each of the clauses and schedules, referring, where appropriate, to the preceding consideration section. In members’ copies of this section, the numbering begins with number 1, but, in the final printed version, the numbering will continue from the end of the numbering in the consideration section. I remind members that this section contains summaries of the Committee’s decisions.

8456. Are members content with the introduction?

Members indicated assent.

8457. The Chairperson: Are members content with paragraphs 1 to 12?

Members indicated assent.

8458. The Chairperson: Are members content with paragraphs 13 to 23?

Members indicated assent.

8459. The Chairperson: Are members content with paragraphs 24 to 29?

Members indicated assent.

8460. The Chairperson: Are members content with paragraphs 30 to 40?

Members indicated assent.

8461. The Chairperson: Are members content with paragraphs 41 to 50?

Members indicated assent.

8462. The Chairperson: Are members content with paragraphs 51 to 54?

Members indicated assent.

8463. The Chairperson: Moving on to paragraphs 55 to 58 —

8464. The Committee Clerk: The Committee must strike out the second amendment in paragraph 56 and insert the first amendment.

8465. The Chairperson: Are members content with those changes and with the remainder of paragraphs 55 to 58?

Members indicated assent.

8466. The Chairperson: Are members content with paragraphs 59 to 63?

Members indicated assent.

8467. The Chairperson: We now move to the executive summary, which we will go through paragraph by paragraph. Are members content with paragraph 1 of the executive summary?

Members indicated assent.

8468. The Chairperson: If I am moving too quickly for members, please let me know. Are members content with paragraph 2?

8469. Mr O’Dowd: Line 5 of paragraph 2 reads:

“The Committee raised various fundamental concerns".

8470. In my opinion that should read:

“Some Committee members raised various fundamental concerns".

8471. Similarly, line 10 reads:

“However, the Committee continue to have a number of serious concerns"—

8472. Mr B McCrea: I was happy earlier not to misrepresent people, but I feel that the insertion of “some members of the Committee" gives the impression that a minority of Committee members had expressed concern. That is despite the fact that a majority of Committee members had raised fundamental concerns.

8473. Mr O’Dowd: I am happy for the term “majority" to be inserted. The Committee had not come to a decision at that stage; therefore the report cannot refer to the Committee as a whole.

8474. Mr B McCrea: OK. I am happy with that.

8475. The Chairperson: Returning to paragraph 2 —

8476. Mr Lunn: Chairman, you said that those lines will read “the majority of Committee members".

8477. However, no vote was taken; members merely expressed their opinions. How do we know that the majority of the Committee feels that way?

8478. The Committee Clerk: It is up to Committee members to decide on the form of words. The Chairperson communicated on behalf of the Committee at that stage, which reflected to the Minister that there were fundamental concerns throughout the whole process. It is open to the Committee to decide.

8479. Mr O’Dowd: What about “many Committee members"?

8480. The Chairperson: Line 5 states:

“The Committee raised various fundamental concerns"

8481. Mr Lunn: Could we just say “members"?

8482. The Chairperson: Rather than “The Committee"?

8483. Mr Lunn: Yes.

8484. Mr O’Dowd: “Members raised" is fair enough; I would agree to that.

8485. The Chairperson: Thank you. Will we do the same when we come to line 10? Will we use “members"? Are members content with paragraph 2, as amended?

Members indicated assent.

8486. The Chairperson: We move to paragraph 3.

8487. Mrs O’Neill: We need to correct the last line, which states:

“The Committee unfortunately did not receive a draft of the Second Education Bill before the end of the Committee Stage of the Bill."

That is factually incorrect.

8488. The Chairperson: We could change it to read:

“The Committee unfortunately did not receive a draft"

and we could insert today’s date. That would be factual. Do you want to put in the time?

8489. Mr B McCrea: I would like to add to that:

“making it impossible for the Committee to consider the second Bill in concert with the first Bill".

8490. The Chairperson: Before we find ourselves with a whole raft of difficult phraseology, we will take it piece by piece. Perhaps members could agree to:

“The Committee unfortunately did not receive a draft of the second Bill until 30 September, making it impossible for the Committee to give any consideration in relation to the first Bill".

8491. Mrs O’Neill: Perhaps we could say:

“The Committee did not receive a draft of the second education Bill until 30 September"

and leave it at that.

8492. The Chairperson: No; the agreement was — and we have heard comments from all members — that we would get sight of the second Bill to help us to have an understanding of the context.

8493. Mr O’Dowd: Is that reflected in the Committee report? The summary is a summary of the Committee report. Where in the Committee report do we reflect on the second Bill?

8494. The Chairperson: We reflect on it in the appendices and the documentation that came from the Department, where reference was made to promises that were given that we would get sight of the second Bill.

8495. The Committee Clerk: It is a quotation from the Minister’s statement, where she said that we would get sight of the second Bill before the summer recess. I cannot remember the words, but it is in the statement.

8496. The Chairperson: Paragraph 62 states:

“The Committee had not received sight of any provisions of the second Bill at its meeting on [??] September 2009".

8497. We need to insert a date.

8498. Miss McIlveen: We skipped to the end of paragraph 3. If we read paragraph 3 in its entirely, it explains the context in which we are talking about the second education Bill. It states:

“At this time the Committee Chairperson emphasised the need for scrutiny preparatory work on the Second Education Bill and to examine the two Bills coherently and holistically."

8499. That is clear from reading the whole paragraph in context rather than skipping to the last line, as we have done.

8500. The Chairperson: I will return to paragraph 3, which we want to read:

“The Committee unfortunately did not receive a draft of the second Education Bill until 30 September."

8501. What do we want to include, if anything, in reference to the second Bill?

8502. Mr B McCrea: You are welcome to negate —

8503. Mr Ross: It should use the words that are used in the lines above it so that it reads:

“making it impossible to examine the two Bills coherently and holistically".

8504. That is consistent with the language that was used earlier.

8505. The Chairperson: Therefore it will read:

“making it impossible —"

8506. Miss McIlveen: “— to examine the two Bills coherently and holistically". It is a repetition of the previous line.

8507. The Chairperson: Clerk, if you will read it again, I will put it to the Committee.

8508. The Committee Clerk: The last line of paragraph 3 would be amended to read:

“The Committee unfortunately did not receive a draft of the second Education Bill until 30 September 2009, making it impossible for the Committee to examine the two Bills coherently and holistically."

8509. Mr O’Dowd: That keeps us happy.

8510. The Chairperson: Are members content with paragraph 3, as amended?

Members indicated assent.

8511. The Chairperson: We will return to paragraph 62 of the main report, which should be amended to read:

“The Committee had not received sight of any provisions of the second Bill until its meeting of",

8512. followed by today’s date.

8513. Are members content with that?

Members indicated assent.

8514. The Chairperson: We move to paragraph 4. If there are no comments, we will move on.

8515. Mr Lunn: Paragraph 4 states that:

“Unfortunately there was an almost persistent delay".

I think that we are being kind. It should state that there was a “constant delay".

8516. The Chairperson: Or, “Unfortunately there was a persistent delay".

8517. Mr Lunn: That will do.

8518. Mr O’Dowd: Although there was a delay in papers coming back, it was not persistent. The phrase:

“there was an almost persistent delay"

allows agreement.

8519. The Chairperson: Some would prefer the paragraph to read:

“Unfortunately, there was an almost persistent delay",

whereas Trevor Lunn thinks that it should read; “Unfortunately, there was a persistent delay". Those in favour of it reading; “a persistent" —

8520. Mr Lunn: It could be changed to read “frequent", which would keep it simple:

“there were frequent delays by the Department".

8521. The Chairperson: Should the line be amended to:

“Unfortunately, there were frequent delays".?

8522. Mr B McCrea: The delays were many, frequent and often.

8523. The Chairperson: Sorry?

8524. Mr B McCrea: I was speaking in tautology again. I did not want Chris Stewart to come to the table.

8525. The Chairperson: Do not go there; it sounds painful. The line should read:

“Unfortunately, there were frequent delays". Are members content with the paragraph, as amended?

Members indicated assent.

8526. The Chairperson: Are members content with paragraph 5?

Members indicated assent.

8527. The Chairperson: Are members content with paragraph 6?

Members indicated assent.

8528. The Chairperson: Are members content with paragraph 7?

Members indicated assent.

8529. The Chairperson: Are members content with paragraph 8?

Members indicated assent.

8530. The Chairperson: Are members content with paragraph 9?

Members indicated assent.

8531. The Chairperson: Are members content with paragraph 10?

Members indicated assent.

8532. The Chairperson: Are members content with paragraph 11?

Members indicated assent.

8533. The Chairperson: Paragraph 11 should read “having received advice". It is not often that I pick up on spelling mistakes.

8534. Mr B McCrea: It is recorded in Hansard.

8535. The Chairperson: Indeed, it will go down in history.

8536. Are members content with paragraph 12?

Members indicated assent.

8537. The Chairperson: Are members content with paragraph 13?

Members indicated assent.

8538. Mr B McCrea: Can that be changed to, “agreed to recommend to the Assembly some, but not many"? [Laughter.]

8539. The Chairperson: Agreed. [Laughter.]

8540. Thank you very much, members. We have dealt with the executive summary. We shall now proceed to the appendices. Members will recall that all contents of the appendices, except Hansard reports, were contained in the grey lever-arch files that were distributed earlier. I hope that they found a prominent place in your offices.

8541. At subsequent meetings, updates to the appendices were distributed to members. Today, the Committee will note any further additions. If it is happy, it will agree that the entire contents of the appendices be printed in the report. If you bear with me, I will go through those appendices for the record.

8542. Appendix 1 contains the minutes of proceedings that relate to the report. Members have approved last week’s minutes. The minutes of today’s meeting will be produced as quickly as possible and circulated to members. Are members content for me, as Chairperson, to approve the minutes of today’s meeting in so far as they relate to the Bill for the purposes of their being appended to the Committee’s report for printing?

Members indicated assent.

8543. The Chairperson: Thank you. Are members content with appendix 1?

Members indicated assent.

8544. The Chairperson: Appendix 2 contains the minutes of evidence. The Hansard report of last week’s meeting was circulated to you yesterday afternoon. Are members content with appendix 2?

Members indicated assent.

8545. The Committee Clerk: Members have been made aware of the deadline for sending the document to print, which is 4.00 pm today. Members should bear in mind that the meeting last week was five hours’ long. Certainly, the Hansard report of last week’s meeting was contained in the white envelopes that members received yesterday afternoon.

8546. The Chairperson: Are members agreed that it can be added to appendix 2 of the Committee report and that I, as Chairperson, can approve the Hansard report of today’s meeting for inclusion in the report for printing?

Members indicated assent.

8547. The Chairperson: Do not worry, members; you have not given me power that I will abuse.

8548. Appendix 3 contains written submissions. There are no changes to the submissions that were circulated to members in the grey lever-arch folder several weeks ago. Therefore, are members content with appendix 3?

Members indicated assent.

8549. The Chairperson: Appendix 4 deals with other correspondence and written submissions. The following new items are to be added to appendix 4: the Assembly research briefing paper ‘Comparable issues from Library, Health and Education Bills’ that was circulated to members on 16 September; correspondence from the Department of Education in regard to the controlled schools sectoral meeting that was circulated on 23 September; correspondence from the Minister of Education about possible further amendments and suggestions on the Education Bill that was circulated on 23 September; and correspondence from the Department of Education regarding schedules 3, 4 and 7, which was also circulated on 23 September.

8550. The Committee Clerk: Earlier, the Committee received two more documents for inclusion in appendix 4: the second Education Bill and the amendments from the Department.

8551. The Chairperson: Does the Committee agree that those documents should be included in appendix 4?

8552. Mr O’Dowd: Can we publish the second Education Bill before the Executive see it?

8553. The Committee Clerk: It is a draft.

8554. Mr O’Dowd: Sorry, OK.

8555. The Chairperson: It is usual for a Committee report on a Bill to indicate whether the Committee is content with the long title. I, therefore, ask Members to turn to page 1 of the Bill. The long title is:

“A Bill to provide for the establishment and functions of the Education and Skills Authority; to make further provision about education, educational services and youth services; and for connected purposes."

Question, that the Committee is content with the long title, put and agreed to.

8556. The Chairperson: In conclusion — I sometimes thought that we would never get here — the Question is that the report, as amended, be the first report of the Committee for Education for 2009-2010 to the Assembly and that the Committee orders the report to be printed on 30 September 2009.

Members indicated assent.

8557. The Chairperson: I conclude by expressing my sincere thanks and appreciation to John Simmons, Alyn Hicks and their staff for the huge amount of work that they have done. We sometimes felt as though we were snowed under with paperwork; however, I can assure you that it would have been all the more difficult had I been left to steer the Committee through it. On behalf of the Committee, I express our appreciation and thanks to John, Alyn and their staff for all that they have done.

8558. I thank the departmental officials for their forbearance and assistance, particularly Chris Stewart and his team, who attended meetings on a regular basis.

8559. Mr B McCrea: Are we taking a vote on that? [Laughter.]

8560. The Chairperson: I also thank the Hansard staff for their accurate reflection of all our deliberations.

Session 2009/2010

First Report

Committee for Education

Report on the Education Bill (NIA 3/08) Volume 2

Membership and Powers

Table of Contents

Volume 1

Appendix 1

Volume 2

Appendix 2

Volume 3

Appendix 3

Appendix 4

Appendix 5

Appendix 2

Minutes of Evidence

Table of Contents

10 December 2008

14 January 2009

21 January 2009

28 January 2009

4 February 2009

11 February 2009

18 February 2009

25 February 2009

4 March 2009

11 March 2009

(The Acting Chairperson [Mr McCausland] in the Chair)

(The Chairperson [Mr Storey] in the Chair)

18 March 2009

(The Deputy Chairperson [Mr D Bradley] in the Chair)

(The Chairperson [Mr Storey] in the Chair)

25 March 2009

25 March 2009

(The Deputy Chairperson [Mr D Bradley] in the Chair)

(The Chairperson [Mr Storey] in the Chair)

1 April 2009

1 April 2009

22 April 2009

22 April 2009

29 April 2009

6 May 2009

(The Deputy Chairperson [Mr D Bradley] in the Chair)

(The Chairperson [Mr Storey] in the Chair)

13 May 2009

(The Acting Chairperson [Mr McCausland] in the Chair)

20 May 2009

27 May 2009

3 June 2009

10 June 2009

(The Acting Chairperson [Mr Lunn] in the Chair).

17 June 2009

26 June 2009

1 July 2009

9 September 2009

10 September 2009

16 September 2009

23 September 2009

Schedule 1 (The Education and Skills Authority)

Clause 2 (Functions and general duty of ESA)

Clause 3 (ESA to employ all staff of grant-aided schools)

Clause 4 (Employment schemes for grant-aided schools)

Clause 6 (Reserve powers of ESA to make employment scheme)

Clause 7 (Revision of employment schemes)

Clause 9 (Transfer to ESA of staff employed by Boards of Governors)

Clause 10 (ESA to employ peripatetic teachers)

Clause 11 (Salaries, etc, of staff: administrative and financial arrangements)

Clause 17 (ESA to pay superannuation benefits of teachers)

Clause 21 (Dissolution of certain statutory bodies)

Clause 22 (Transfer of assets, liabilities and staff)

Clause 23 (General duty of the Department and DEL)

Clause 47 (Directions as to exercise of child protection duties by Boards of Governors)

Clause 49 (Catholic maintained schools)

Clause 51 (Regulations and orders)

Clause 54 (Commencement)

Schedule 2 (Transfer to ESA of staff employed by Boards of Governors)

Schedule 3 (Transfer of assets, liabilities and staff of dissolved bodies)

Schedule 4 (Transfer of certain assets and liabilities of CCMS before appointed day)

Schedule 7 (Minor and consequential amendments)

30 September 2009

Report on the Education Bill
(NIA 3/08)
Volume 2

(The Acting Chairperson
[Mr McCausland] in the Chair)

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

(The Acting Chairperson
[Mr McCausland] in the Chair)