EDUCATION AND LIBRARIES BILL
(NIA BILL 21/01)
SESSION 2002/2003

Ordered by The Committee for Education to be printed 10 October 2002
Minutes of Evidence and Written Submissions:02/02/E (Committee for Education)

COMMITTEE FOR EDUCATION
MINUTES OF EVIDENCE AND WRITTEN SUBMISSIONS
UP TO 10 OCTOBER 2002

COMMITTEE FOR EDUCATION

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 Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Education and has a role in the initiation of legislation.

The Committee has the power to:

• consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
• approve relevant secondary legislation and take the Committee stage of relevant primary legislation;
• call for persons and papers;
• initiate inquiries and make reports; and
• consider and advise on matters brought to the Committee by the Minister of Education.

MEMBERSHIP

The Committee was established on 29 November 1999 with 11 members, including a Chairperson and Deputy Chairperson and a quorum of five.

The membership of the Committee is as follows:

• Mr Danny Kennedy (Chairperson)
• Mr Sammy Wilson (Deputy Chairperson)
• Mrs Eileen Bell
• Mr John Fee
• Mr Tommy Gallagher
• Mr Oliver Gibson
• Mr Tom Hamilton*
• Mr Alban Maginness**
• Mr Mitchel McLaughlin***
• Mr Gerry McHugh
• Mr Ken Robinson

* Mr Tom Hamilton replaced Mr Tom Benson on 29 January 2001. Mr Benson died on 24 December 2000.
**Mr Alban Maginness replaced Ms Patricia Lewsley on 20 May 2002.
***Mr Mitchel McLaughlin replaced Mr Barry McElduff on 1 July 2002.

Reports and evidence of the Committee are published by the Stationery Office by Order of the Committee. All publications of the Committee are posted on the Assembly's website: archive.niassembly.gov.uk

All correspondence should be addressed to the Clerk of the Committee for Education, Committee Office, Northern Ireland Assembly, Room 242, Parliament Buildings, Stormont, Belfast, BT4 3XX.
((028) 9052 1629; Fax (028) 9052 1371; e-mail: committee.education@niassembly.gov.uk

CONTENTS

Committee for Education - Powers and Membership

Minutes of Evidence

Departmental Officials - Clauses 18-20 and 31
Departmental Officials - Clauses 22 and 26
Departmental Officials - Clauses 15-17, 23, 32, 34 and 35
Departmental Officials - Clauses 1 -14, 27-29 and 36
NIPPA - The Early Years Organisation

Written Submissions to the Committee

Belfast Education and Library Board
Children's Law Centre
Council for Catholic Maintained Schools
Governing Bodies Association
Northern Ireland Council for the Curriculum, Examinations and Assessment
National Association of Schoolmasters and Union of Woman Teachers
North Eastern Education and Library Board
NIPPA - The Early Years Organisation
Northern Ireland Human Rights Commission
Save the Children
South Eastern Education and Library Board
Southern Education and Library Board
Transferor Representatives' Council
UNISON
Western Education and Library Board

Minutes of Evidence

MINUTES OF EVIDENCE

Thursday 12 September 2002

Members present:

Mr Gibson (The Acting Chairperson)

Mrs E Bell

Mr Gallagher

Mr McHugh

Mr McLaughlin

Mr K Robinson

Witnesses:

Ms J Ingram )

Ms I Murphy ) Department of Education

Mr J Leonard )

1.

The Acting Chairperson: I welcome Ms June Ingram, Ms Irene Murphy and Mr John Leonard from the Department of Education to this morning's Committee session. The officials will give the Committee a briefing on clauses 18, 19, 20 and 31 of the Education and Libraries Bill, and Members will have an opportunity to ask questions.

2.

Ms Ingram: There are two parts to clause 18. First, it provides for independent admissions appeal tribunals to continue to be heard in private. The other part amends existing provisions requiring boards to make payments for travel or subsistence allowances to members of an admission appeal tribunal in conditions, and at such rates, as the board may determine. These will be approved by the Department - as opposed to "as determined by the Department".

3.

The Acting Chairperson: Do tribunals usually take place in private?

4.

Mr Leonard: Yes.

5.

The Acting Chairperson: Why is it necessary to legislate for that?

6.

Mr Leonard: It has always been in the regulations, but on advice from the examiner of statutory rules the Department thought that it would better to have the power in the primary legislation, which has been the situation in England and Wales since 1996.

7.

The Acting Chairperson: Have the regulations been laid before the Assembly?

8.

Mr Leonard: The regulations are made under the Education (Northern Ireland) Order 1997.

9.

The Acting Chairperson: I am aware that the primary legislation cedes these regulations, but do you deem it necessary for the regulations to be laid before the Assembly?

10.

Mr Leonard: The regulations are already in place under the Education (Northern Ireland) Order 1997.

11.

The Acting Chairperson: I apologise for my ignorance.

12.

Mrs E Bell: Human rights issues must be associated with public and private tribunals. Has this been considered?

13.

Mr Leonard: That has been taken into account. Sensitive matters, such as family and medical issues, are brought forward at these appeals, and there are good reasons for the tribunals being held in private.

14.

Mrs E Bell: I have been involved in tribunals, so I understand and have no problem with that. However, a human rights group might say that tribunals should be transparent and open. Is that possibility adequately covered in the Bill?

15.

Ms Ingram: We are aware of the principle that the tribunal should, where possible, be held in public.

16.

The Acting Chairperson: Is it necessary for all the tribunals to sit in private? I understand that some of the issues are sensitive and delicate, but does that apply to all the issues?

17.

Mr Leonard: Usually the tribunal is hearing reasons why a school has refused admission to a child. Parents put forward their case for that decision to be overturned, and that usually contains information on family and medical circumstances. Therefore, most appeals involve information of a sensitive nature.

18.

Mr Gallagher: I appreciate that there are occasions when there is some sensitive information. However, many parents feel that one of the biggest problems is the secrecy surrounding appeals. Parents do not know the personnel involved, or anything about the appeal's format, and I am concerned that there is too much secrecy. There is a difference between sensitive information and the secretive way that the appeals are conducted, and I favour more openness. Except when the tribunal chairperson judges that part of the proceedings should take place in camera or committee, there should be a facility for the public to attend if they so wish. Not many will, but I would like to see an amendment to the way that tribunals have been conducted up to now.

19.

There is much discontent around these appeals, both from the children involved and the schools awaiting decisions, and the current time frame seems to be loose. Boards have the ultimate responsibility for ensuring that appeals are heard, but there is no date by which they must be heard. That is unsatisfactory for the schools, the children and their parents who are waiting week after week. Is it possible to include a time frame in which these appeals must take place in the legislation?

20.

Mr Leonard: The current legislation gives boards the power to make arrangements for the appeals, which is done within a tight timetable. Pupils return to school on 1 September, and when parents are notified of their school placement at the beginning of June, there is a three-month period for the appeal process to take place. After 1 June, there is usually a two- to three-week period when parents must give notice of their intention to appeal. After that, boards know how many appeals they are dealing with and have the appeals procedures in place towards the end of June and July, when most of the appeal tribunals sit. There is already a carefully timetabled procedure for appeals.

21.

Mr Gallagher: I do not see that working. At least two people have come to me about appeals that dragged into the middle of August. I cannot quote the cases, but one of the dates ended up being after 19 August, which is too late and unsatisfactory from everyone's point of view. Is the timetable in the legislation, as it is not in practice on the ground?

22.

Mr Leonard: A broad open enrolment timetable, which includes the procedure for dealing with appeals, is sent to schools every year. Boards are constrained by the time they have to hear the appeals. Some may drag into August for good reasons, such as trying to establish an appeal tribunal. The vast majority of appeals are held in June or July.

23.

Mr Gallagher: They all should be held then, and the legislation should ensure that.

24.

The Acting Chairperson: A predictable reaction time should be included in legislation.

25.

I want to push you a little on the point of the legislation favouring tribunals being held in private. I would always want them held in public, unless there were burning issues forcing them to be held privately. Can you prove to me that the burden of evidence should be for private hearings?

26.

Mrs E Bell: I have been quite heavily involved in tribunals, and share Tommy Gallagher's concern. Although I appreciate Mr Leonard's point about timetabling, if possible it should be included more explicitly in the legislation so that people are aware of the timescales.

27.

One of my concerns is that many people will not actually appeal if the hearing is automatically in public. Everybody here probably has knowledge of cases, and I know of several cases where parents would not want the circumstances to be heard at a public tribunal. While in principle hearings should be in public, we should allow private if necessary.

28.

The problem as I see it, and I agree with Mr Gallagher here, is that the procedure is not really here, and parents really do not know what to expect. People have asked me what they should do about various problems - my child wanted into this school, my child had a good reason for failing the 11 plus, or my child should have really had an 'A' but actually ended up with a 'D' because of the circumstances of the day. These problems are not really covered in the legislation, and if all that has been taken into account, what Mr Gallagher is saying is quite right.

29.

There should be some rationale for these tribunals so that children and parents know what to expect. On hearings in public or private, I have reservations about them all being heard in public. The principle is that they should be in public if possible, so that people know what is happening. However, they should be private if the parent does not wish it to happen in public.

30.

Mr Leonard: Some very delicate information comes forward at the appeals.

31.

The Acting Chairperson: Clause 18(2) and (3) changes subsistence payments from the Department to the boards. Does that mean every board can fix its own rate? I would want a higher mileage rate for the west of the province, so would it not be safer to have a standard rate?

32.

Mr Leonard: The rate is determined by the board and approved by the Department. There is an approval role.

33.

The Acting Chairperson: Is this a convoluted way of saying it is a fixed rate?

34.

Mr Leonard: At present the Department has determined the rates that all boards apply.

35.

The Acting Chairperson: I presume the rate is fixed fairly at a nominal rate, so why bring the boards in to complicate it?

36.

Ms Ingram: There is a general principle of delegating more to the boards, which is reflected in other provisions, and this is really a read across.

37.

The Acting Chairperson: I am just trying to avoid the situation where the west would be penalised with 5p a mile, and the opulent, luxurious east would get something like 50p a mile?

38.

Mrs E Bell: I am just wary about giving any more approvals to the Department.

39.

The Acting Chairperson: This will obviously be more bureaucratic, so will it be cost-effective?

40.

Mr Leonard: This change is part of a general move to delegate from the Department to the boards.

41.

Mrs E Bell: Yes, but it then has to go referred back again.

42.

The Acting Chairperson: Before I get my mileage somebody in the Western Education and Library Board has to stamp my card, and then it has to go up to the Department. The Department posts it back and then someone in the board checks to see if it is correct. If it is wrong, somebody has to give the approval of the board to make the correction. It then has to go back to the Department and be returned to the board again. By the time I get the money Christmas is over.

43.

Ms Ingram: We will not be looking at the travel claims as such.

44.

The Acting Chairperson: I am thinking of some poor innocent struggling out of the heart of the Sperrins to attend a tribunal. Money, even though it may be a small amount, is crucial to them, and the speed at which they are reimbursed matters. They have paid for this in advance.

45.

Ms Ingram: We will want to take consistency into account. Clause 19 provides for parents to express, in order of preference, on a single application form, the schools in which they wish pre-school education to be provided for the child. It is designed to remove the significant administrative problems that arise from the current system of multiple applications.

46.

Mrs E Bell: I would welcome that. Schools anticipate an intake because of people making applications. Maybe it is wrong for the school to make assumptions, but they do, and it then transpires that the child went to another school. Will the boards require extra funding to carry out the changes, or will it be in their budget allocation?

47.

Ms Ingram: The boards have raised the question of resources, and we will discuss that with them.

48.

The Acting Chairperson: The Southern Education and Library Board said that they wanted more time, so should we amend the legislation to give more time to introduce the system?

49.

Ms Ingram: We will keep an eye on that as the Bill progresses.

50.

The Acting Chairperson: The burning question is consultation with the boards. We noted the southern board's comment, but you have consulted other boards. Are you happy that the timescale can be implemented, and is the legislation practical?

51.

Ms Ingram: Concerns have been raised about the practicability of the timetable in the context of the progress of the Bill. We will keep a close eye on that as the Bill progresses and, if necessary, we will amend the Bill in order to delay the introduction.

52.

The Acting Chairperson: Will the boards be funded for this, or is there an allowance already in the budget?

53.

Ms Ingram: Currently, there is nothing specific in the budget. However, we will discuss resources for implementation with the boards.

54.

The Acting Chairperson: Can you guarantee consistency across all boards? The issue has been raised of one board being more favourable to a certain condition, so how do we ensure consistency across the boards?

55.

Mr Leonard: The boards are careful about other open enrolment issues, such as primary and post-primary, and the same will apply to pre-schools. All the board transfer officers will get together and ensure that the arrangements are uniform across Northern Ireland.

56.

Mr McLaughlin: Is that a voluntary arrangement, or is it covered by regulation?

57.

Mr Leonard: It is a voluntary arrangement. It is in their own interest to ensure total consistency because parents apply across board boundaries to different schools.

58.

Mr McLaughlin: Has that consistency been delivered in practice?

59.

Mr Leonard: It has been delivered since the introduction of open enrolment.

60.

The Acting Chairperson: Is the role of the board of governors affected?

61.

Mr Leonard: That role remains unchanged. The board of governors remain the key authority in admissions decisions, and education and library boards act as a clearing house to facilitate school preferences. The schools decide admissions based on their criteria.

62.

The Acting Chairperson: Why should a parent be asked to give reasons for their choice? The choice of a school is a private, domestic matter, so what right has anyone to ask for reasons? Maybe that is a peculiar point of view, but it is sometimes raised.

63.

Mr Leonard: That is a relevant point, and it comes up in other cases of open enrolment to primary and post-primary schools. There are popular schools, which are over subscribed with applications, and this gives parents an opportunity to refer to something relevant to the admissions criteria that could make a difference to their child being selected - that is the rationale.

64.

Mr Gallagher: Who will give parents the application forms, and where do they forward those to under the new regulations?

65.

Mr Leonard: They will get the application forms from the schools; state their choices on the form and forward it to the first choice school. The school will forward it to the board, which will begin the clearing process.

66.

The Acting Chairperson: What happens if, with the best intentions in the world, a board of governors sets flawed criteria? Who takes the blame - the board or the Department?

67.

Mr Leonard: By law, admissions criteria are a matter for the board of governors.

68.

The Acting Chairperson: A board could produce criteria that are incompetent, or which breach human rights and could be legally challenged. The civil, decent people who serve on those boards, and who have volunteered to take on extra administrative work, could find themselves culpable in law.

69.

Mr Leonard: That sometimes happens in other sectors, and the Department has issued guidance to schools on what is to be included or excluded from the criteria. That is in the legislation. For example, the Department may spot a possible fault in the criteria outlined in a booklet that is due to be published for parents, and, in such instances, the Department would advise the board of governors that there is a potential problem.

70.

The Acting Chairperson: Recently, I was involved in a case where the problem was not a fault contained in the criteria, but an omission from them. A vicious-minded parent would not have let it rest there, and the Department must be aware of such problems.

71.

Mr K Robinson: Going to nursery school is a child's first step away from home, and it is an emotional experience for everyone concerned. Will anything in the proposed changes ease the emotional distress felt by the children and parents, or assist school governors who may find themselves omitting something and committing some sort of misdemeanour? Is that distress acknowledged in the Bill, and did awareness of that highly charged emotional situation influence the drafting?

72.

Ms Ingram: The purpose of the provision is to streamline the process as much as possible so that parents are not receiving offers from several different schools, which slows down the process. Are you referring to the entry into nursery school and the settling-in period?

73.

Mr K Robinson: The settling-in period is a matter for the teachers and staff of the school. I am concerned about the panic that parents feel, particularly those with a child entering the system for the first time. They are faced with the formality of the process and gossip from the rumour mill. The process seems fairly simple, according to the legislation, but on the ground the process is complicated and emotional for parents, and their feelings could be transferred to their child.

74.

Ms Ingram: Books containing contact information are issued, and board officers make themselves available to help parents through the process.

75.

Mr McHugh: Often, parents apply for nursery places for their two-year-olds, and, as a result, three and four-year-olds sometimes do not get places. Is that issue dealt with in the Bill?

76.

Ms Ingram: Nigel McCormick will deal with that issue in the next evidence session. Clause 20 empowers the boards to make arrangements for the admission of a child from outside Northern Ireland to a vacant place in a special school within their areas, and to charge for the place.

77.

The Acting Chairperson: Why did you leave out special units, learning support centres and mainstream schools?

78.

Ms Murphy: The purpose of the clause is to focus on children with significant special educational needs, and, in particular, schools for children with severe learning difficulties, which might be experiencing pressures. In the main, children attending units in mainstream schools have less significant educational needs, and could be accommodated in mainstream schools or other specialist schools in their own areas.

79.

The Acting Chairperson: I am unsure about that. Many of the specialist units, particularly in my area, are in mainstream schools. Is that common?

80.

Ms Murphy: In practice, there has not been any pressure on education and library boards or requests from other jurisdictions for places other than in special schools.

81.

The Acting Chairperson: Is that a reasonable response? We are drafting legislation for the present, but we should also be able to anticipate for the future. Although there may be a demand for special units, if several units are attached to mainstream schools it can easily be seen that the emphasis could be placed on those other provisions.

82.

Ms Murphy: Education and library boards have a direct funding relationship with special schools, which they do not have with mainstream schools. Currently there is no provision for ordinary grant-aided schools to set fees. The provision is a means by which special schools can accommodate children with severe learning difficulties.

83.

The Acting Chairperson: Will the boards recoup the costs?

84.

Ms Murphy: The boards will recoup the costs incurred.

85.

Mrs E Bell: The legislation should be as clear as possible, not only to people drafting and implementing it, but also to parents and others affected by it. This provision will create many problems. Parents of children with any special needs or difficulties are very sensitive, and will be unhappy if they think that there is a clause for one set of schools and not another.

86.

Many problems that we encounter are from parents of children in units, rather than parents of children in special schools. The provision should be made clearer, as it is the Government's policy for such children to be mainstreamed. Therefore, it would help the Government if it were clear that the provision is intended only for children with severe needs. I appreciate and welcome the provision, but it must be made clearer.

87.

Will the boards take into account costs incurred by parents? For example, if a child moves from Bristol to attend Clifton Special School in Bangor, would it be incumbent on the relevant council to share part of those costs?

88.

Ms Murphy: The cost would not be attributed to the parents, but to the education authority responsible for the special education needs provision for that child.

89.

Mrs E Bell: My initial reaction is what happens to the parents. Many people are beginning to look at legislation here because it is "our" legislation, so it is in all our interests to make legislation clear. Although I welcome the provision, I want those points taken on board.

90.

Mr K Robinson: Reimbursement from another part of the UK is possible. Is it also possible if a child comes from the Irish Republic, which is the most likely place from where a child will come to avail of special education in Northern Ireland?

91.

Ms Murphy: Yes. We have consulted the Department of Education and Science on that. In practice, the numbers of children from there who receive special education here are very small, and are primarily placed in the Western and Southern Education and Library Boards. The Department of Education and Science would welcome the opportunity, but only where it is experiencing difficulty in placing children in schools within authorities there.

92.

The Acting Chairperson: It must be made clear in the legislation that it refers to children with significant special needs. It is not abundantly clear that this refers to children with significant special needs, and we are all aware of the difficulty, regardless of whether we use that term. We must tidy up that section.

93.

Ms Murphy: This would apply to children eligible for admission to special schools, rather than special units. We need the provision to be made by the special schools.

94.

Mr McLaughlin: Would those schools qualify under the existing system?

95.

Mrs E Bell: Will the criteria be clear to everyone?

96.

Ms Murphy: Yes is the answer to both questions.

97.

The Acting Chairperson: Will you consider this point again, as I do not think that it will be abundantly clear to the ordinary person? Also, can you reassure us about clause 20(4) and (5)? Will the boards be able to recover the teaching costs?

98.

Ms Murphy: The boards will be able to recover any appropriate costs necessary to meet the needs of the child.

99.

The Acting Chairperson: The Northern Ireland Human Rights Commission sent you a submission making various recommendations and suggestions. Will you give us your response?

100.

Ms Ingram: We received that document at 9.00am this morning.

101.

The Acting Chairperson: Ours arrived at the same time. The Northern Ireland Human Rights Commission make some worthy points about clause 20(2).

102.

Mrs E Bell: I agree with their amendments.

103.

The Acting Chairperson: The Northern Ireland Human Rights Commission has suggested two additional paragraphs. Will you come back to us on that, please?

104.

Ms Murphy: From what we have read so far, the main issue centres on enrolling the child for one year at a time. In drafting this, we were mindful of what was required of the education and library boards, which have a qualified duty under the legislation to make provision for children who are resident in their area. Also, children who enter that type of school would first attend at not just aged three, four or five, but could do so at any stage. Therefore the boards may not be aware at any given time of children who come to them in subsequent years.

105.

The Acting Chairperson: Will you come back to us on that point?

106.

Ms Ingram: Clause 31 requires that all members of the Council for Catholic Maintained Schools (CCMS) be appointed at the same time. This will remove a cumbersome process of appointment, which has previously been staggered.

107.

The Acting Chairperson: CCMS has not raised any points with us.

108.

Ms Ingram: It wants that new system to be put in place.

109.

The Acting Chairperson: CCMS has suggested that school admission numbers should factor in considerations of the treatment of children, which is also mentioned in the Bill. Do you have any comment on that?

110.

Ms Ingram: That is a much wider issue, and we can comment if that helps.

111.

Mr Leonard: Under the current legislation, statemented children are over and above the open enrolment arrangements, and are not counted against the school's admission or enrolment numbers. The CCMS suggests that those children be counted against the enrolment numbers, which is the post-year 8 figure. We treat statemented children as supernumerary, because by virtue of being statemented they are in a special category. We do not penalise the school by counting them against their enrolment number. If we do that, other local pupils cannot be admitted to the school. The practice, which has always been welcomed by the schools, is that statemented children are treated over and above the approved enrolment numbers, which is important.

112.

Ms Ingram: That proposal is new to us, and we will consult with CCMS on it.

113.

The Acting Chairperson: This should be given serious consideration. I would not treat this lightly and would like you to give us more of your thoughts on that to ensure that we have covered that sensitively.

114.

That concludes our deliberations on clauses 18, 19, 20 and 31 for today. I thank you all very sincerely for your answers.

MINUTES OF EVIDENCE

Thursday 12 September 2002

Members present:

Mr Gibson (Acting Chairperson)

Mrs E Bell

Mr Gallagher

Mr McHugh

Mr McLaughlin

Mr K Robinson

Witnesses:

Mr N McCormick ) Department of Education

Mr B Fitzsimmons )

115.

The Acting Chairperson: Good morning. Today I should like to deal with clauses 22 and 26. The Northern Ireland Pre-school Playgroup Association (NIPPA) and the Council for Catholic Maintained Schools (CCMS) raised issues concerning the funding of nursery schools for two-year-olds, as Mr McHugh mentioned.

116.

Mr McCormick: Clause 22 concerns development proposals for grant-aided schools. It is in essence a procedural rather than a substantive change, and its aim is to reflect good practice recommended by the Department regarding consultation on development proposals aimed at ensuring people's wishes are reflected in the statutory provisions.

117.

Mr K Robinson: If that is the case, it is to be welcomed.

118.

The Acting Chairperson: Must clause 22 be amended to prevent boards duplicating consultation on maintained schools?

119.

Mr McCormick: No. I saw the CCMS's statement. Clause 22 substitutes article 14(5) of the Education and Libraries (Northern Ireland) Order 1986 to deal with maintained schools and 14(5A) to deal with controlled schools or where the Department issues a direction to the board to make a development proposal. It is intended that school authorities be consulted only once; in the case of maintained or other voluntary schools, it will be done by the trustees or the school authorities. It will then be submitted to the board, which will consult other schools. Clause 14(5B) says:

"the board shall consult the trustees and managers (or representatives of them) of any other school".

120.

The intention is that the school subject to the development proposal will be consulted once, but the board will have responsibility for ensuring that other schools are consulted as well.

121.

The Acting Chairperson: Save the Children had concerns about the words "representatives of them" in clause 22, substituting articles 14(5) and 14(5A) of the Education and Libraries (Northern Ireland) Order 1986.

122.

Mr McCormick: We were not sure what Save the Children intended, since both 14(5) and 14(5A) contain the words "or representatives of them"; we thought that the issue was addressed in the clause as drafted.

123.

The Acting Chairperson: Does (5B) require the board to consult only the trustees?

124.

Mr McCormick: Trustees, managers or their representatives.

125.

The Acting Chairperson: Is there no duty to consult teachers or parents?

126.

Mr McCormick: No. If a school is subject to development proposals, the parents have a direct interest, as do the teachers. In other schools it tends to be the management that is affected by the development proposals. Development proposals submitted by the board to the Department are subject to an objection period, which is a further safeguard for people to make their views known. Parents and teachers of other schools can use the objection period to make their views known directly to the Department.

127.

The Acting Chairperson: Is there a formal channel for doing so?

128.

Mr McCormick: Yes. There is a statutory requirement for a two-month period after publication of the development proposal for objections to be made to the Department.

129.

Mr K Robinson: Do parents and teachers make wide use of it?

130.

Mr McCormick

131.

Yes, although of course it varies. In some cases it is very extensively used; in others less so. Mostly it tends to be the subject school rather than parents whose children attend other schools. Objections from other schools tend to be from the school authority or the school management. There are not many parents from other schools.

132.

Mr K Robinson: I do not want to disadvantage teachers in any way. They might perceive themselves to be under more scrutiny in such a sensitive situation. Do teachers use that facility, or do unions speak on their behalf?

133.

Mr McCormick: Are you referring to the objection period?

134.

Mr K Robinson: Yes, that is what I mean.

135.

Mr McCormick: It has been known. Over the objection period, the majority of views tend to come from parents connected with the schools involved, but teachers also make their views known.

136.

The Acting Chairperson: If a proposal is submitted to the board of a grant-aided school, is there a legislative requirement for the proposers to show that a consultation process has been carried out around it? Some form of consultation needs to take place.

137.

Mr McCormick: Yes. We are now putting good practice onto a statutory footing. If a development proposal is made, consultation with the key stakeholders will take place before the proposal is published.

138.

The Acting Chairperson: Are there any questions on clause 22?

139.

Mrs E Bell: Sorry, but I was out of the room. Have the process for consultation and the issue of maintained schools been covered?

140.

The Acting Chairperson: Yes, that was one of the first issues we dealt with.

141.

Mrs E Bell: People have been asking me about that situation.

142.

The Acting Chairperson: Will clause 26 enable trustees and boards of governors to make payments after the termination of the contract? The CCMS has received advice that the clause does not go far enough, as it states that the relevant authority can make payments:

"during the term of the contract or on its termination."

143.

Mr McCormick: Yes. We were made aware of that from the return made to the Education Committee. The legal adviser who briefed the CCMS was involved in the discussion about the need for this clause and how it was to be drafted, and we are in ongoing dialogue with the CCMS. There is no dispute about the scope or intent of the clause. The principle is that the legislation as currently drafted covers most of the costs of PPP contracts where they are held by the trustees of voluntary schools. However, some costs can fall outside the term of such contracts, and the current legislation does not cover those costs being paid by the trustees through grant. It is therefore intended that the legislation be extended to cover those situations; there is agreement on that.

144.

The difference of opinion arises as to whether that form of words is the clearest way to present the issue, and the contentious phrase is "on termination". The point which the CCMS and the legal adviser made is that the legislation is intended to ensure that costs be paid either on termination or beyond termination of the contract. We must return to the draughtsman and find out if there is a clearer form of words.

145.

The Acting Chairperson: I have a major concern about whether many more PPPs or PFIs are initiated. They are long-running, 25-year affairs, so does the board's commitment change? For the sake of argument, if financial difficulties arise in Northern Ireland, the PPPs and PFIs have the first call, and every other school project could be sadly squeezed. The demands for the PPPs and PFIs are set in stone. In that situation, who carries the can here? Is it the boards or the Departments - or does the boards' role change?

146.

Mr McCormick: Clause 26 does not change the principles or commitments of the boards in relation to PPPs. It makes it clear that some cash properly due under the contract may have become so after the term of the contract had expired. In that sense, it does not change the principle that any cash properly due under the contract is payable. That principle is already in the legislation.

147.

As regards the point about it being a commitment over and above the resourcing of non-PFI schools, PPP contracts are like any other. They are contractual commitments into which people enter. In that sense, it is a contractual commitment in a way that the direct resourcing of schools is not; that is not peculiar to PPP. On the other hand, in making a contractual commitment to pay, you also receive a contractual commitment for the school's maintenance to certain specified standards. Maintenance costs can be increased or decreased in schools not resourced under a contract, which is not the case under a PPP contract. It is not all one-way traffic.

148.

The Acting Chairperson: I ask you to re-examine the wording of clause 26, about which there is general concern. There is a limited amount of money available for capital building at any time. We do not want to allow the boards to carry the can. That might be where the contract stays, but who honours the contract? Is it the board? Is it the Department? All the money originates in the Department. We must be careful about this; the wording must be checked.

149.

Mr McCormick: Boards are responsible for the maintenance of maintained schools. The present proposal simply turns that into a PPP contract arrangement.

150.

The Acting Chairperson: You are going to come back on that.

151.

Mr K Robinson: The North Eastern Education and Library Board expressed concern in its submission that non-PFI and non-PPP schools will be subsidising such contracts. That is a serious situation.

152.

The Acting Chairperson: That is the general fear.

153.

Mr McCormick: I appreciate that. The concern, however, is about the use of PPP rather than the clause before us. The clause does not change the principle, which is already in the legislation.

154.

Mr K Robinson: The board has highlighted its concerns in its submission.

155.

Mr McCormick: Even if the clause did not go ahead, its concern would not change.

156.

Mr K Robinson: But you are aware of it?

157.

Mr McCormick: People are generally concerned about the fact that PPP is a contractual commitment. On the other hand, you get a contractual standard of service too. That equation is to be considered. People tend to have an opinion on that one way or the other rather than on the specifics of the clause.

158.

The Acting Chairperson: The North Eastern Education and Library Board and the CCMS raised that issue. That concern seemed to bubble up to the surface several times. We simply wish to make everyone happy and perhaps salve our consciences.

159.

Mrs E Bell: I fully agree with the comments made. NIPPA and the CCMS have asked about the loophole between two-year-olds and four-year-olds. I assume that you will try to address that. From a human rights point of view, it would be advisable that it be looked at again if four-year-olds are prevented from getting in because of the loophole. They have told us that they have already raised this with you.

160.

Mr McCormick: "Loophole" is perhaps not the right word. The legislation currently provides for two-year-olds to get statutory provision. Two-year-olds have that right to provision when all places for three-year-olds have been made available. Two-year-olds could only apply for spare places under statutory provision. Your and NIPPA's point is that the Department intends to change the legislation, or it at least wants to consult about working towards a change.

161.

Mrs E Bell: It is not yet clear whether there will be a big change. It is just a matter of recognising that four-year-olds also have rights.

162.

Mr McCormick: Yes.

163.

Mrs E Bell: That is fine. We had been asked to bring that to your attention.

164.

Mr Gallagher: Are you going to consider an amendment to deal with that issue?

165.

Mr McCormick: The primary purpose of the Bill concerned the local management of schools (LMS), which was considered a substantive issue because provisions already exist for two-year-olds. A successful amendment would remove that provision. The consultation is necessary because it is a substantive issue. For example, NIPPA had very strong views on it. The Department was unable to suggest an amendment on that basis, since the consultation has not been undertaken.

166.

Mr Gallagher: Several people will be disappointed that such a long-running problem is not to be dealt with and addressed in the legislation now. The Department always said that it would not be a problem, but others said that it would. Time has proven the latter group correct. I agree that it is not really a widespread concern, but it is contentious, especially in certain urban areas. People will expect the Department to deal with the difficulty now within this quite extensive Bill.

167.

Mr McCormick: I can only reiterate that the Department views it as a substantive issue requiring consultation, which is not complete. It cannot therefore support an amendment.

168.

The Acting Chairperson: It has been a substantive issue for some time, and it must be taken seriously and dealt with. Is the Education and Libraries Bill not the right vehicle to address it?

169.

Mr McCormick: The only available option is an amendment, for the provision is not in the Bill as it stands. When the Bill was originally drafted, it was for LMS provisions and other non-controversial technical adjustments. The problem which concerns you did not fall within the Bill's scope, which is why it is not in it. However, if the Department put forward an amendment, it would wish to have had completed consultation first.

170.

Mr K Robinson: If an amendment followed at some stage after consultation, what would the timescale be before it could be incorporated into legislation?

171.

Mr Fitzsimmons: Full-scale consultation takes at least eight weeks, after which the results must be considered.

172.

Mr K Robinson: How long would it take overall?

173.

Mr Fitzsimmons: It would take three or four months.

174.

Mr K Robinson: Could it be addressed within a school year?

175.

Mr McCormick: Potentially, although much depends on the outcome of the consultation. The Committee has received some quite strong views. However, I am not sure how parents or other stakeholders feel, which is why the consultation must be undertaken.

176.

Mr K Robinson: If the will were there, matters could progress quite rapidly.

177.

The Acting Chairperson: Will the Department seriously consider the issue?

178.

Mr McCormick: We take the issue seriously and had intended to undertake a consultation. However, the Bill's timescale must be considered. We did not think that it could have accommodated an amendment.

179.

Mr McLaughlin: Are we to infer from your responses that there are no current plans to have such consultation?

180.

Mr McCormick: There are plans for consultation during the winter.

181.

Mr McLaughlin: When will the consultation be brought forward?

182.

Mr McCormick: It was intended to hold the consultation over the winter, but that timescale did not allow for an amendment to the Bill. After the consultation, the Department would have sought the next legislative opportunity to include the amendment in the Bill, provided the outcome of the consultation exercise supported it.

183.

Mr McLaughlin: I asked that because we can anticipate when the legislation will be brought before the Assembly. Several Members will express quite a strong interest in the matter. As regards the passage of the Bill, it would be helpful if we could clearly indicate that the matter was being dealt with and would be included in the programme.

184.

The Acting Chairperson: A valid point has just been made. The Bill will enjoy a great deal of space and many headlines during its passage through the Chamber. It will be seen as the grand omission or the great escape. Thank you very much for attending.

MINUTES OF EVIDENCE

Thursday 19 September 2002

Members present:

Mr Kennedy (Chairperson)

Mr S Wilson (Deputy Chairperson)

Mrs E Bell

Mr McHugh

Mr A Maginness

Mr K Robinson

Witness:

Mr T Smyth ) Department of Education

185.

The Chairperson: I welcome Mr Terry Smyth from the Department of Education. Thank you for being brave enough to attend on your own. We intend to consider separately clauses 15, 16, 17, 23, 32, 34 and 35 of the Education and Libraries Bill and to take questions, section by section.

186.

Mr Smyth: Clause 15 introduces a duty on Boards of Governors of schools to safeguard and promote the welfare of their pupils. Under existing legislation there is a duty of care on the Boards of Governors; however, that applies only in relation to pupils who are boarding at school, and represents a comparatively small number. This clause extends that duty of care to all registered pupils so that all pupils at the school, whether boarders or day pupils, will be afforded the same protection. The legislation therefore makes that duty explicit in law.

187.

A duty is imposed on the Board of Governors of a grant-aided school to safeguard and promote the welfare of all registered pupils while in the care of the school. This, in effect, extends the duty that already applies under the Children (Northern Ireland) Order 1995 in respect of schools' boarding departments. It also empowers the Department to direct the Boards of Governors of schools with boarding departments to comply with recommendations from inspections intended to safeguard and promote the welfare of pupils accommodated by the school.

188.

Those, essentially, are the provisions of clause 15, and I am happy to address any questions the Committee might have.

189.

Mr S Wilson: If I were a governor of a school, what would that mean in practical terms with regard to my responsibilities and liability? For example, what does it mean for me, as a member of the Board of Governors, if a youngster is badly injured or something unfortunate happens, either at school or on a school trip?

190.

Mr Smyth: Under existing legislation a Board of Governors is, effectively, a corporate body. It means that the Board of Governors will have responsibility for safeguarding and promoting the welfare of the pupils. In other words, the Board of Governors must put in place reasonable precautions to prevent injury to pupils in the circumstances mentioned. It is not possible to legislate for all eventualities - there will be accidents and things will happen. I am not aware of the liability in law were such an issue to crop up. This clause makes it a duty on the Board of Governors to ensure that, insofar as is reasonably possible, they have arrangements in place to safeguard and promote the welfare of registered pupils at the school. It is essentially an extension of a provision that already exists for boarding pupils.

191.

Mr S Wilson: The Board of Governors is perhaps two or three times removed from the care of the young person. The Board of Governors may well tell the principal that there is a duty and that he or she must make sure measures are put in place. The principal will then talk to the teachers who are involved. The governors are by a fair degree removed from the practical care of the youngsters.

192.

You say that you do not know what liability this is likely to place on members of the Board of Governors. People are not beating down the doors of schools to become members of Boards of Governors. You cannot tell me what the liabilities are for individual members. Does that not present a problem?

193.

Mr Smyth: There will be no liability on individual members but on the Board of Governors as a whole. If a parent had a problem with how this was worked out, it would be with the Board of Governors as a body and not with individual members.

194.

Mr S Wilson: It does not matter whether liability is shared among six people or taken on by an individual. I would have thought that the Department could at least have assured people who are applying to take on the role. I do not know how practical this provision is, because of how far removed the board of governors is from the day-to-day care of the youngsters.

195.

Has the Department considered whether this, on top of the other responsibilities of Boards of Governors, such as school finances, will make it even more difficult to recruit people for these posts?

196.

Mr Smyth: That will become more obvious as time goes on. The Department is not aware of any problems that have been expressed about people's reluctance to become members of Boards of Governors because of the proposed legislation. Somebody must be responsible for promoting the care and protection of pupils in schools. If that duty is not imposed on Boards of Governors, on whom will it be imposed?

197.

Mr S Wilson: Do schools not have a duty for the care and protection of children?

198.

Mr Smyth: There is an argument that under common law the school is acting in loco parentis, but the legislation makes it specific.

199.

Mr A Maginness: I declare an interest as a member of the board of governors of St Patrick's College in Belfast.

200.

Mr Wilson's question got an interesting response. I would have thought that the duty of care rested with the management of the school and that that is separate from the board of governors. Therefore, is it necessary to extend the duty of care to the board of governors? I sympathise with Mr Wilson's point when he says that you are imposing an additional burden on Boards of Governors and that that could deter people from taking up positions. It is not easy getting people to take up that burden.

201.

Mr Smyth seems to be saying that the duty of care is a collective responsibility and that it does not then devolve to individual members or governors. However, the proposed legislation does not make that explicit. It refers to the board of governors, but it does not exempt individual members from any indemnity that might be imposed on them. The legislation should make it clear that, while the board of governors as a collective body has a duty of care, individual members should not be liable for the consequences of a breach of that duty of care.

202.

Mr Smyth: That is a legal issue, and we would need to take advice as to whether it would be necessary to be specific about it in this clause.

203.

Mr A Maginness: It is a very real issue. You are saying that it is not a matter of their being joint and severally liable, but jointly liable.

204.

Mrs E Bell: I concur with my Colleagues, and I am concerned about that as I am a member of a board of governors. Indeed, I have been on several boards. Boards of Governors are generally not aware of their present responsibilities, never mind adding more.

205.

I am not undermining the Boards - they are given training - but the whole question of liability, collective or otherwise, should be looked at. It has always been assumed that the management of the school dealt with the duty of care, and I agree, especially as Mr Wilson said that the management impact on a day-to day-basis and the board of governors do not. I do not see any board of governors assuming that it would be liable, so the legislation needs to be much clearer.

206.

School trips should also be taken into account, and I am glad that Mr Smyth said that that would be looked at.

207.

You have the submissions from the Children's Law Centre and Save the Children. What are your views on the "best interests" principle?

208.

Mr Smyth: I have looked at the submissions received from the Children's Law Centre and Save the Children, and both raise the issue of "best interests", which is part of the UN Convention on the Rights of the Child. I should preface these remarks by saying that we are looking at these now, but none of this has been exposed to the Minister. Ultimately, the Minister will decide what should be done.

209.

Having said that, I can give you my response to some of these issues. Personally, I have no problem with the introduction of these words, but we would need to discuss this with the legislative draftsman. If you make it a duty of the Boards of Governors to safeguard and promote the welfare of the pupils, one might ask in whose other interest would that be done. It may well be that advice from the draftsman will be that the addition of these words will have no practical difference in law. Having said that, it is something I personally feel we would be able to look at very positively.

210.

Mrs E Bell: Our intention is that any legislation be as clear as possible to everyone.

211.

Mr Smyth: There may be a view that it would be implicit, given the fact that the duty to safeguard and promote the welfare of the pupils is being laid on the board of governors. How could it be done other than in their best interests? The draftsman is very reluctant to put something in just for the sake of it. He will do so if it will essentially make a difference and add to the legislation, not just because it looks good. I will take advice on this from the draftsman, but it is something I would have a positive response to.

212.

The Chairperson: When will you be in a position to indicate to the Committee that the Minister is comfortable with this?

213.

Mr Smyth: This could be something that the Committee can assist me on. These submissions are made to the Committee and have not been made to the Department - although they have been made available to the Department. This session will benefit me, as I will get a feeling from the Committee about which responses it feels should be looked at and might wish to consider further.

214.

I have already started this process of going through all of these submissions - essentially looking at them as if they were submissions to the Department, and asking what we would be saying if we had to respond to them. We will do that at official level and will be making recommendations to the Minister on what line we should be taking on this. With the requirement to address the legal point with the draftsman, this will take a few weeks. The Committee has put down a motion to extend the period of the Committee Stage, so we have a little time to do this. There is quite a substantial amount in the submissions, particularly the one from the Children's Law Centre, that needs to be addressed.

215.

Mr McLaughlin: I certainly feel that we do not need both "welfare" and "best interests" -it is a question of either/or. What is the difference between the two?

216.

Mr Smyth: That is precisely the point that we need to take up with the draftsman.

217.

Mr McHugh: Clause 15(1) refers to care of children while they are in school. There are implications for practices such as detention, for the child's journey home after school. Also, some schools take the attitude that bullying is part of life. Will this improve that, or is this legislation even weaker than the 1995 Children Order?

218.

Mr Smyth: I do not believe that it is weaker. I know the circumstances you describe: a child is kept in after school and the supervisor may well not be a teacher. The duty is on the board of governors to ensure that circumstances like that are fully taken care of.

219.

Mr K Robinson: In its submission the North Eastern Education and Library Board says:

"Often Boards of Governors are not able to perform the functions placed on them."

I declare an interest as a governor in that particular board area.

220.

That is the situation. There is a parallel with special education. Where a code of practice has been drawn up, schools should adhere to it. However, because of various constraints placed on the schools and Boards of Governors, they are unable to do that.

221.

Some recent investigations into special education have highlighted that practice on the ground is totally different from the intention of the code of practice. Is there not a danger that that could happen here? There is no way that a board of governors or school can undertake some of the duties imposed by clause 15. The Western Board is up to date with its cyber bullying policy, which is beyond me, as I cannot operate computers, but it has been flagged up as a danger. How can a school prevent that type of bullying, which might be very insidious on a child's welfare, at all times?

222.

Mr Smyth: I noted the North Eastern Board's comment that Boards of Governors are often unable to perform the functions placed on them. I was not entirely clear whether that was because boards felt that they did not have enough resources or were not given sufficient guidance. There is a broader issue about the functions and powers of Boards of Governors and the extent to which they feel able to exercise them. That is a much bigger issue, which must be considered in that context.

223.

Mr K Robinson: The Children's Law Centre suggested a new clause 15(1) where, before any decision is made about a child within its lawful control, a board of governors shall, so far as is reasonably practical, ascertain the wishes and feeling of (a) the child, (b) its parents, (c) any person who is not the parent but who has a parental responsibility or (d) any other person whose wishes and feelings the board of governors considers to be relevant. As a grandparent, I might have a few concerns to express, but the board of governors may not agree that I am a relevant person under (d).

224.

Mr Smyth: The Children's Law Centre recommended that that new clause be inserted. If that were to happen, the Department would need to consider it in light of your point. Currently, there is no requirement to consult either parents or pupils on those matters. The Children's Law Centre suggests including a requirement to ascertain the wishes and feelings of parents and children.

225.

Mr K Robinson: It is very relevant in that the areas where grandparents are active members of the community are the areas where children are most vulnerable.

226.

The Chairperson: When will you be able to indicate, on behalf of the Department, whether the outline of that suggested new clause had been accepted?

227.

Mr Smyth: The principle is whether there should be consultation with pupils and parents on whatever arrangements Boards of Governors draw up for promoting and safeguarding the welfare of the pupils. If that principle were to be accepted, the extent and breadth of the consultees would need to be considered.

228.

The Chairperson: You would have to guard against including Uncle Tom Cobley and all.

229.

Mr Smyth: Exactly.

230.

Mr S Wilson: Some of the Children's Law Centre's suggestions are, in practical terms, crazy. Boards of Governors cannot be expected to consult as widely as that. We must try to live in the real world while drafting this legislation. There are problems already with the proposals.

231.

Mr Smyth: My next point reflects what you have just said. Although we are all anxious to ensure that as much as possible is done as regards people expressing their views when procedures are drawn up, whether they are in relation to pupil welfare, child protection or anti-bullying, we must nevertheless bear in mind that setting up what some people might call bureaucratic consultation structures will actually impose a significant burden on Boards of Governors. A balance must be struck between the interests of the children and imposing a burden on a board of governors.

232.

The Chairperson: I draw your attention to the Education Act 2002, recently passed in England. It places a requirement on the local education authorities to promote and safeguard the welfare of children. The Act also refers to the duties of further education institutions to do the same. Given that the Education and Libraries Bill extends the potential for 14-year-olds to attend further education institutions, why is consideration not given to the need for similar protection for such children in clause 15?

233.

Mr Smyth: It was decided that it was appropriate to impose this duty on the Boards of Governors in controlled and maintained schools. As you say, clause 175(1) of the Education Act 2002 places a duty on local education authorities to

"make arrangements for ensuring that the functions conferred on them. are exercised with a view to safeguarding and promoting the welfare of children."

234.

We could take that on board and consider to what extent there is a need to extend that duty to boards or other employing authorities.

235.

The Chairperson: Clause 16 deals with child protection measures.

236.

Mr Smyth: On several occasions since 1989, the Department has issued guidance to schools on the action that they should take to protect pupils from abuse and on how to respond when allegations of child abuse are made. There is evidence that not all schools follow the guidance fully on every occasion. Therefore, we must ensure that all schools have appropriate procedures for protecting pupils from abuse and responding appropriately to allegations of abuse.

237.

Clause 16 places a requirement on schools to have, and implement, a written policy. In preparing the policy, the board of governors must have regard to any current guidance issued by the Department, the education and library board for the area, and, where appropriate, the Council for Catholic Maintained Schools. The clause also imposes the requirement to make copies of the policy available to parents.

238.

Many schools already have such a written policy. The Department thinks that this issue is so important that it must be underpinned in the legislation by a requirement on all schools to have a written policy that reflects the guidance issued by the Department and other relevant authorities. The most recent guidance was issued by the Department in 1999. It was very comprehensive guidance to schools on the measures they should take to ensure the protection of their pupils and the actions they must take where there are suspicions of child abuse.

239.

Mr S Wilson: I am concerned about the wording of the clause. The clause states that measures should be taken

"with a view to protecting pupils from abuse (whether at school or elsewhere)".

240.

How does a board of governors or a school do that? I understand how a school can take measures to seek to protect youngsters from abuse in school, or when they are under the control of school, but for the life of me, I do not see how they can protect them from abuse elsewhere. This clause seems to be all-embracing. How is a school supposed to protect pupils elsewhere?

241.

Mr Smyth: The word "elsewhere" does not apply to any activity that is not under the control of the school. For example, it could apply to a situation where children go away with the school for a couple of weeks to Ardnabannon or wherever. A school's responsibility would extend to such activities, and the child protection policy that the school draws up must also deal with those. It does not mean that it is the school's responsibility to protect children from abuse everywhere, at all times.

242.

Mr S Wilson: In that case, why is the same wording not used in clause 15?

243.

The Chairperson: I must interject to say that it is a huge mistake to mention any particular location in such a discussion. We are in a public session, so I must caution everyone not to make the people who work in any particular location feel that anything other than what is appropriate is happening.

244.

Mr S Wilson: Why is the same wording not used in clause 15 and clause 16? Clause 15 uses the words

"under the lawful control or charge of a member of the staff of the school".

245.

Do not forget that this legislation will be torn apart by people such as Alban Maginness at some stage when a case goes to court. The word "elsewhere" is not qualified.

246.

Mr Smyth: I take your point. The Department is satisfied that the word "elsewhere" does not apply to activities that are not under the control of the school. However, we will take further advice from the draftsman, and, if necessary, we will add the words that you have suggested to make that point absolutely clear.

247.

Mr McLaughlin: There are resource implications arising from that. I am concerned about neglect and physical or mental harm to a child. Is there a legal definition to help Boards of Governors and teachers? Will resources be applied to ensure adequate training and preparation? Some examples have been given in earlier discussions about how to recognise when a child is being abused and to recognise the nature of that abuse. Are teaching staff being put in a vulnerable position if they are required to recognise and report abuse? That can be very difficult unless they are trained to develop that capacity.

248.

Mr Smyth: With regard to cost implications, most schools have a written policy, have fully implemented it and are working it very successfully. Some schools do not have such a policy, and there would be costs and implications for them. I am unclear what training was introduced to enable schools that have implemented the policy to carry out their duties. The protection of children is the primary concern for the Department and for everyone else. Therefore it is incumbent on the Department to ensure that it provides additional resources, if necessary.

249.

Mr McLaughlin: If all schools do not have a written policy, there could be a clear resource implication. How much guidance is given for teachers during their training?

250.

Mr Smyth: I do not know, but I can find out.

251.

Mr McHugh: With regard to the definition of the word "harm" and what Boards of Governors consider is meant by it, there are many forms of abuse ranging from the way in which kids are dealt with or spoken to by teachers and how they are exposed to the rest of the class to whether they want to continue with their education at a certain age. In clause 16 it is unclear whether those areas will be covered. Will it deal with all instances of possible harm to kids?

252.

Mr Smyth: The Department issued comprehensive advice to schools, and I can make copies of that available to the Committee. The advice is detailed and deals with how schools can identify signs of possible abuse and the circumstances in which that abuse occurred. The legislation imposes that schools have a written policy, and that must reflect the comprehensive guidance that the Department has provided. Many of those things are covered in the guidance rather than the legislation.

253.

The Chairperson: If the legislation now gives full statutory force, why do the guidelines provided by the Department deal with child abuse? Are members of the Boards of Governors legally obliged to report cases of suspected child abuse? Are they compelled to assist in any investigation and disclose evidence, regardless?

254.

Mr Smyth: The issue of which authorities should be advised in cases of possible child abuse is covered in the guidelines issued by the Department. Essentially, it should be the police and social services.

255.

This is an interesting area, and the Department of Education is examining the issue. The legal requirement to report an incident of abuse, and the extent to which the failure to do so is a criminal offence, is a live issue. It is an offence to fail to report an arrestable offence. Therefore it is an issue if such an offence occurs in a school and is not reported. There is a view that the criminal law might be changed to strengthen that provision and require all cases of abuse to be reported to the police or to social services, and it would be an offence to fail to do so. However, that is an issue for the criminal law and the Northern Ireland Office to address.

256.

Mr K Robinson: If a governor, or a member of staff in a school, reports a suspected case of abuse, and the allegation turns out to be false, what sort of protection will be afforded to that person from personal or corporate liability?

257.

Mr Smyth: The guidance explains the circumstances in which abuse is likely to arise, and it advises that cases of suspected abuse should be reported in certain circumstances. If a child makes an allegation of abuse, the principal must examine it first and make a judgement about the extent to which it must be reported. For example, it may be clear that the alleged incident could not have happened; the teacher concerned might not have been in school that day. With other allegations that appear to be more serious, and there is a possibility that they happened, the principal must exercise his or her judgement about how to report it. If the allegation is investigated and found not to be right, I do not see how it could rebound on the principal, who, in good faith, and on the available evidence, followed the guidance and reported the incident.

258.

Mr K Robinson: It would be helpful if the Committee were to check the legal position of a governor or principal who tried to act in the best interests of the child in a case that was not pursued. They should be afforded protection. One of the major obstacles to people coming forward when they suspect abuse - despite it being an offence not to do so- is the fact that they might find themselves totally isolated with no protection from the board, or the Department.

259.

The Chairperson: Can you confirm my understanding that the legislation will give full statutory force to those guidelines?

260.

Mr Smyth: Yes. Any statement of child protection policies will have to reflect the guidelines.

261.

Mr K Robinson: The Belfast Education and Library Board makes a good case for additional resources being made available. The board has three officers, and any new duties that are imposed on them will have resource implications, which will affect governors and schools also.

262.

Mr Smyth: The boards make cases to the Department for additional resources to cover circumstances such as that, where new duties are imposed on them or on the governors.

263.

Mr K Robinson: There is also an issue about levels of training. If I am correct, the training for governors consists of one or two part-time courses, depending on whether they can spare a couple of evenings or the occasional day. If governors are expected to deal with reporting abuse, they will need more in-depth training. That has resource implications. Governors are laypersons who may have to work during the day. One evening course may not suffice, given the extent of the problem.

264.

Mrs E Bell: I am extremely unhappy about the whole issue. The legislation is not as strong as it could be, given the cases that have occurred recently here and on the mainland. It does not make the child's position clear, nor does it say what a child can do. There is nothing to encourage a child to go to a board of governors or a principal. The Bill should be examined from the child's point of view; it is not child centred.

265.

We have touched on the question of liability for Boards of Governors. That is a tremendous responsibility on governors. As a governor, I would have to take that seriously and be trained to know exactly where I stood. If I did not, it would have untold repercussions. There have been cases where a child has told the principal who the perpetrator is, or there is general knowledge of the perpetrator within the school, but the matter is not dealt with. There is nothing in the clause to deal with that. It must be made very clear so that parents and children know where they stand. That has already been suggested, but I would prefer that, instead of reviews being carried out "from time to time", as in clause 16(1)(a), there should be a yearly review.

266.

Mr Smyth: The Children's Law Centre also suggested that.

267.

Mrs E Bell: I am suggesting it on a personal level. We have all had dealings with the Northern Ireland Human Rights Commission and the Children's Law Centre. If a yearly review was built into the legislation, a board of governors could be confident that a review would take place. Apart from anything else, membership of Boards of Governors changes.

268.

Some organisations have mentioned the need to have a copy of the legislation. You mentioned guidelines. Do the children know what is in the guidelines? Do they know their rights and responsibilities? Organisations like the National Society for the Prevention of Cruelty to Children (NSPCC) have placed counsellors in schools, which are proving very successful, but the legislation should be strengthened to ensure that measures are implemented. That can still be done.

269.

Mr Smyth: The Department is considering those aspects in the context of submissions made to the Committee. The Children's Law Centre made a point on that in relation to consulting children and parents. There is not the same need to consult parents and children on that policy as there is for other policies such as bullying, where children are more likely to have had experience of it.

270.

Mrs E Bell: I cannot let that pass. What do you actually mean? Are you saying that if a child is being abused, sexually or otherwise, that it is not as serious?

271.

Mr Smyth: No, I did not mean that at all. We are talking about consultation on a statement of child protection policies and what that should contain. The Department has already issued very comprehensive guidance. The statement will reflect that guidance. I am not sure what parents and children could contribute that would significantly change it. However, the Department is not totally against it and is considering it.

272.

Mrs E Bell: Parents have contacted me about such incidents. Will the Department have another look at that?

273.

Mr Smyth: Yes.

274.

Mr S Wilson: I want to make a contrary point. As a teacher, my principal often asked me to prepare policies on this and that, and this Committee has asked the Minister countless times to lift the bureaucratic burden from teachers. We must be very cautious not to introduce a legislative requirement that not only requires schools to provide a policy but to review it every year. If that happened, some teacher would have to devise a policy and consult numerous people when reviewing it every year. We must balance what is necessary to protect youngsters against letting teachers get on with their jobs.

275.

When focusing on one part of a piece of legislation, it is easy to want all the Rolls-Royce extras built in to it. However, those extras increase the workload for teachers and schools. It is sensible to have a policy and to review it from time to time and, on occasion, it may be of benefit to consult with people who are experienced in problems such as bullying. However, that policy is one of dozens to which schools must adhere. If the Committee applies the same principle, it will create a massive burden for schools, for which they will not thank us.

276.

Mrs E Bell: Therefore, you are putting bureaucracy before child protection.

277.

Mr S Wilson: No, I am not.

278.

Mrs E Bell: That is what you are saying.

279.

The Chairperson: Order please.

280.

Mr Smyth: I assure Cllr Bell that copies -

281.

Mrs E Bell: I am an Assembly Member, not a councillor.

282.

Mr Smyth: I am sorry.

283.

The Chairperson: I am not sure how a slap would appear in Hansard.

284.

Mr S Wilson: If the meeting is being recorded, you will be able to hear it.

285.

Mr Smyth: Child protection policy measures will be made available to parents. It is always open to parents to say that certain aspects of the policy do not go far enough and should be reconsidered. It is for parents to contact schools and tell staff that policies should be changed, and a responsible school will respond to such an approach.

286.

Mr Wilson referred to reviews being held from time to time, which is right. The Department is leaving it for the school to decide how often it should review its policies. We must not forget that the Department has issued comprehensive guidance, as have other bodies, and the policy reflects that. If the Department changes its guidance, schools' policies must be reviewed to reflect that. However, it is for schools to review their policies when they think that it is necessary. As Mr Wilson stated, there are those who think that it should not be a statutory requirement for schools to review their policies every year, whether it is needed or not.

287.

Mrs E Bell: I do not mean that it should be a statutory requirement. I was just thinking of things that have happened that could have been stopped had the child protection policy been reviewed from time to time. Perhaps someone would have been brave enough to highlight problems. I do not want to put further pressures on teachers because I know that they have a heavy workload. However, we must have legislation to ensure that the child, parent and school are covered.

288.

The Chairperson: I am slightly concerned by the vagueness of the term "from time to time", because potentially some schools may review their policies annually, while others may chose to review policies only after 10 years. It might be sensible to include a provision whereby schools are required to review their policies every five years, for example.

289.

Mr Smyth: It is possible to introduce a form of words such as "shall review its policy from time to time and not less than once every x number of years". That might be a compromise between leaving it up to the school and the school's having to do it every year.

290.

The Chairperson: Does the definition of abuse in the Bill encompass all potential forms of harm?

291.

Mr Smyth: The policy reflects the guidance issued by the Department, in which all those issues are covered.

292.

The Chairperson: Does that guidance include neglect and emotional problems?

293.

Mr Smyth: Yes, and it defines abuse and the signs of abuse that schools should look for.

294.

The Chairperson: I did not fully understand your response to Mrs Bell's question about whether there would still be a legal requirement to report incidents.

295.

Mr Smyth: There is a legal requirement to report actions that are arrestable offences.

296.

As I understand it, that is the position in criminal law. At present, there is no legal requirement on schools to report everything that they think might happen. The principal can exercise his judgement. It is possible to change the criminal law to make it more all-embracing than it is now.

297.

The Chairperson: That completes discussion of Clause 16. We now move to Clause 17, which deals with school discipline measures to prevent bullying.

298.

Mr Smyth: Sadly, bullying exists in our schools. I imagine that many of us witnessed bullying when we were at school. I would not dare to suggest that any of us have been bullies.

299.

The Chairperson: Only at home.

300.

Mrs E Bell: Only here.

301.

Mr S Wilson: The Chairperson bullies us all the time.

302.

The Chairperson: Good chairmen are bullies.

303.

Mr Smyth: Many schools have already voluntarily adopted an anti-bullying policy. We feel that we should strengthen the legislation on school discipline. There is provision on school discipline in the Education (Northern Ireland) Order 1998. We wish to make it mandatory for schools to have not merely a disciplinary policy, but to have a separate anti-bullying policy.

304.

Under article 3 of the 1998 Order the board of governors and the principal of every grant-aided school are required to have a written discipline policy designed to promote good behaviour and discipline on the part of pupils. In drawing up their disciplinary policy, they are required to consult the parents of pupils at the school. We propose that they will be required to have a separate anti-bullying policy as part of the disciplinary code in the school.

305.

We are introducing a requirement to consult parents about that and, for the first time, pupils. You may well ask why in this case and not in others, but bullying is something that affects everybody. Many pupils have experience of bullying; we hope that not that many pupils have experience of serious abuse in schools. We felt that pupils and parents would have a view about what should go into an anti-bullying policy. For that reason, there is now a requirement to consult the pupils of a school as well as the parents.

306.

Mrs E Bell: I am reasonably happy with this because I know that a great deal of work has been done in schools to prevent bullying. Staffs and Boards of Governors have been given the guidelines, but would the children be frightened by them? Should the children see the guidelines? I welcome the consultation, but would it be for all pupils from primary one to primary seven?

307.

Mr Smyth: It would be for all the pupils in a school. It is a matter for the school to decide how it will fulfil that requirement. It can be done in several ways; it could organise groups of senior pupils to canvass the views of the younger children in the school. Perhaps "circle time" could be an issue. It could also be dealt with as part of personal and social education or in other parts of the curriculum. We would leave it up to the good sense of each school to decide the best way to implement it. Obviously, the arrangements in a primary school would be different from those in a post-primary school where the older pupils may feel that they can express their views directly. In a primary school it cannot be done to the same extent because the children do not have the same understanding of the issues.

308.

Mrs E Bell: Is there a statutory obligation to provide parents with the guidelines?

309.

Mr S Wilson: There is a statutory obligation to show parents an anti-bullying policy.

310.

Mrs E Bell: That is what I thought, but I do not see it here.

311.

Mr Smyth: This is an amendment. I do not have a copy of the 1998 Order; it contains everything that is required.

312.

Mr McHugh: The problem of consulting primary school pupils is made greater by the waiting lists for statementing of young pupils who have difficulties such as autism. Children are often bullied because their siblings have moved on. Clause 17 cannot fully address that difficult issue.

313.

Mr Smyth: I accept that. Youngsters at school can be bullied for all kinds of reasons. The most obvious are race or appearance. A child can be bullied for wearing glasses, as I know to my cost, or for having red hair - there are many reasons. If a child is being bullied for any reason, the schools must deal with it in their arrangements to prevent bullying.

314.

Mr McHugh: It is outside the power of the school that children may be waiting two years for assessment.

315.

Mr Smyth: Anti-bullying measures can extend only to the powers of a school's governing body; one cannot impose duties on Boards of Governors for matters beyond their control.

316.

Mr S Wilson: The Bill states that principals must determine measures to encourage good behaviour and respect for others on the part of pupils and particularly:

"preventing all forms of bullying among pupils".

That is like saying that the principal will ensure that everyone gets three grade As in their A levels. It is not in the power of any principal to prevent bullying completely, yet we are laying a statutory obligation upon principals to do just that.

317.

Mr Smyth: There will be a statutory obligation on the principal to draw up arrangements, as far as is reasonably possible, to prevent bullying. There are no procedures that will prevent bullying completely; however, we can put procedures in place, which, as far as is reasonably possible, prevent it.

318.

Mr S Wilson: That is not what the Bill says. The wording is:

"and, in particular, preventing all forms of bullying among pupils".

319.

Mr Smyth: That is the objective of the measures.

320.

Mr S Wilson: It does not state that that is the objective - it states what the principal is required to do. With the best will in the world, no principal can do that. There is no point in making legislation that requires someone to do something that he cannot, despite his best efforts. I wonder why that has been adopted. Article 3(3)(a)(ii) of the Education (Northern Ireland) Order 1998 speaks of, "encouraging good behaviour", which is fair enough. However, to prevent bullying completely - to be so absolutist - given human behaviour, is not possible.

321.

Why was that wording chosen? What is the legal position of principals if bullying happens despite the Bill's provisions?

322.

Mr McLaughlin: The qualifying phrase is "encouraging good behaviour". Will that not deal with prevention? Is that not, in effect, a get-out clause? Measures are in place to encourage good and reasonable behaviour, and that is within the power of the principal.

323.

Mr S Wilson: It is to encourage good behaviour; that is correct. The word "preventing" is absolutist - "encouraging good behaviour" is not. One can do one's best to encourage good behaviour, but it is too absolutist and impractical to say that one must prevent all forms of bullying.

324.

Mr Smyth: Clause 17 means that principals have a duty to determine measures to prevent bullying. If it does not mean that, we will change it.

325.

Mr S Wilson: If the clause seeks to prevent bullying, that is fair enough.

326.

Mr Smyth: That is my understanding.

327.

Mr S Wilson: Perhaps it should say that.

328.

Mr Smyth: I am not a lawyer, but draftsmen sometimes express things in a certain way, and they assure us that that is the clause's legal meaning. It may not necessarily mean that to a layman, but it does to the draftsmen. We can check that.

329.

Mr A Maginness: The clause is unclear on that point; one would expect the clause to call for "all reasonable measures", or something similar. However, that is absent from the clause.

330.

Mr Smyth: The Belfast board made the point that it is unrealistic to expect the principal to prevent all forms of bullying - nobody would suggest that it is possible for anyone to put such procedures in place. A procedure should be implemented that, so far as is reasonably possible, will provide for steps to be taken to prevent bullying. However, it will not prevent it in all cases.

331.

Mr S Wilson: The wording that Mr Maginness suggests is more realistic.

332.

Mr McHugh: Could it refer to preventing all forms of bullying that have been brought to the principal's attention rather than an ideal ban on all bullying, actual and hypothetical?

333.

Mr Smyth: We will take that up with the draftsman.

334.

Mr S Wilson: Some principals have gone as far as expelling bullies, only to see them return after an appeal. Although principals took steps to stop the bullying, it continued because it was beyond their control. Even after action has been taken, it is not always possible to prevent bullying.

335.

Mr K Robinson: The Belfast board and the Catholic Council for Maintained Schools (CCMS) were concerned that it was not possible for the principal to control bullying.

336.

Mr Smyth: We do not want to make laws that are meaningless because they cannot be implemented.

337.

Mr K Robinson: Has consideration been given to the bullying that principals and governors suffer at the hands of parents or pressure groups?

338.

Mr Smyth: That is important; however, it is not part of this legislation. Teachers may feel that somebody should be doing something about the abuse that they suffer from some pupils.

339.

Mr S Wilson: Why can it not be included in the Bill? It is an education Bill.

340.

Mr Smyth: This part of the Bill deals with the protection of pupils. I am not saying that it cannot be done, but it would be covered in another part of the Bill.

341.

The Chairperson: Several organisations have recommended that article 3(3)(a) of the Education (Northern Ireland) Order 1998 should be amended to state that "principals shall make rules", rather than "may" make rules. What is the Department's view?

342.

Mr Smyth: The Children's Law Centre made that point, and we are considering the implications. I cannot say more than that, except that I do not have strong views on it.

343.

Mr McLaughlin: What is the difference between the words "shall" and "may" in legislation?

344.

Mr Smyth: "May" is very different from "shall" in legislation.

345.

Mr McLaughlin: We are trying to achieve a standard in all boards.

346.

The Chairperson: Under this legislation, what right of redress is there for young people if effective measures are not in place to deal with bullying? Should there be a statutory complaints procedure?

347.

Mr Smyth: The Department can direct schools to put such measures in place. Some consultees expressed the view that a statutory requirement should be placed on the Department to review procedures so that information could be gained about incidents and types of bullying. Questions have been asked in the Assembly about the incidence of bullying in schools, and there is an issue about whether the Department has the necessary information to enable the Minister to answer such questions. However, the consultees go further, as they say that it is a matter of collecting the information and using it to review arrangements that schools may have in place for bullying. I am not sure whether a statutory duty should be placed on the Department, as you may feel that we review how any new policy would be implemented anyway.

348.

Mr S Wilson: There could be a problem with recording incidents, as some schools may record cross words between two pupils as bullying; others may wait until someone has been hit before it is regarded as bullying. There is a problem in getting meaningful figures. We must also bear in mind what schools must go through to obtain those records.

349.

The Chairperson: Clause 23 deals with appeals against expulsion and tribunal procedures.

350.

Mr Smyth: Clause 23 does not introduce anything new. It makes it clear that Article 49(10) of the 1986 Education and Libraries (Northern Ireland) Order allows the Department to specify in Regulations the matters that may be taken into account by members of an expulsion and appeals tribunal in reaching their decision.

351.

One of the roles of the Examiner of Statutory Rules is to examine Regulations that Departments make to consider whether they have the power in the primary legislation to make them. If they have that power, he considers whether there is sufficient provision in the primary legislation to specify what may go into the Regulations. The Examiner told the Department in his forty-fourth report that there was some doubt as to whether it had the power in primary legislation to make such Regulations. Essentially, we are taking the power in this Order to make it absolutely clear that there is primary legislation cover for the Regulations.

352.

Mrs E Bell: The Committee received submissions about the make up of tribunals and about children having sufficient understanding. Do you have those submissions, and will you be examining them?

353.

Mr Smyth: In this context?

354.

Mrs E Bell: Yes. The National Association of Schoolmasters and Union of Women Teachers (NASUWT) submission wants the constitution of appeals tribunals to be examined: its membership, the guidance that would be provided to it and its accountability. Are those matters being examined?

355.

Mr Smyth: Some of those comments would require statutory cover; others would not. It would be more a matter of administration than practice.

356.

Mrs E Bell: I am thinking of the child's experience. Expulsion is traumatic, and it must be clear that it is being dealt with fairly.

357.

Mr K Robinson: NASUWT is talking about the constitution of the appeals panels and guidance given to it. There is nothing more devastating for a school than to take steps to prevent bullying by expelling a child, only to find that child back in school after a ruling by an appeals panel.

358.

Mrs E Bell: That is why I asked whether it is being considered.

359.

Mr K Robinson: It could be self-defeating. It is a serious issue.

360.

Mr S Wilson: I was going to make the same point. There is a great deal of dissatisfaction with the present appeals panels.

361.

They undermine any attempts that schools make to discipline youngsters. Appeals panels overturn almost half the expulsions. Youngsters simply laugh at schools that expel them. I am not a great fan of NASUWT; however, its request is reasonable because there should be greater transparency. Schools should be aware of who makes decisions and why, with clear guidelines so that arbitrary decisions by appeals panels cannot undermine discipline in schools. I do not know what statutory measures that requires. However, it would be useful if you let the Committee know what would be required in the legislation to meet our requests.

362.

The Chairperson: A series of amendments would be required.

363.

Mr Smyth: The Department is carrying out a review of suspension and expulsion procedures, which it hopes will be completed by early 2003; although I am not as close as I should be to the work of that review. I will check that the review is examining those issues and how it might address your concerns. Statutory changes might be required to deal with some of them; others will require changes in guidance, practice or procedures.

364.

The Chairperson: Can you clarify what would require statutory changes?

365.

Mr Smyth: I refer to what NASUWT said about statutory provision on the constitution of appeals panels; however, it also talked about the guidance given to panels. Obviously, the content of their guidance would not be included in legislation; it would be drawn up. NASUWT also talked about examining the effect of panels' work on educational provision and management in schools. That tallies with Mr Wilson's point. There should be an appeals panel because human rights legislation requires that there be an appeal against expulsion. As NASUWT suggested, any review by the Department should consider how panels affect schools' management. They might be undermining schools' best efforts to maintain discipline. That should be examined.

366.

Mr A Maginness: Does the Committee have a list of results from panels in this jurisdiction? It might be interesting.

367.

Mr S Wilson: Fifty per cent were returned.

368.

Mr A Maginness: Obviously, a panel is needed. One cannot direct a panel to find that every expulsion should be upheld. However, the practical consequences of overturning a school's decision must examined.

369.

The Chairperson: Does Clause 23 mean that tribunals will sit in private, except in circumstances specified in the Regulations? Will the Regulations be lead in the Assembly? Will they be provided in draft form to the Committee for scrutiny?

370.

Mr Smyth: Clause 23 gives the Department the power to make Regulations that will in turn specify the circumstances under which tribunals may sit in private. I understand that Regulations clarifying the law are already in place. There is enough in the primary legislation to enable the Department to make Regulations that cover such matters.

371.

The Chairperson: Will they be scrutinised by the Assembly?

372.

Mr Smyth: Yes, if that is the procedure for subordinate legislation.

373.

The Chairperson: Is it the procedure?

374.

Mr Smyth: I am not an expert on Assembly procedure.

375.

The Chairperson: Normally, it would come through statutory rules. However, it would be worthwhile to clarify that as soon as possible. We shall move on to clause 32, which deals with the provision of secondary education for pupils by institutions of further education.

376.

Mr Smyth: The provision in the Education Order 1998 allows education and library boards to make arrangements on behalf of the board of governors of a school for young people aged between 14 and 16 - Key Stage 4 - to receive secondary education in an institution of further education. Its purpose is to provide link courses; these are work-related courses not available in school. Apart from that, further education institutions are not empowered to provide education for young people of school age. The provision assumes that the young person is still enrolled in the school, although some elements of his or her secondary education may be provided in an institution of further education. The law allows that at present.

377.

The proposed change will allow the education and library boards to make arrangements for young people of school age who are not on the roll of a school, such as pupils who have been excluded or expelled, to attend further education colleges. If a board feels that a young person who has been expelled from school will benefit from completing Key Stage 4 in an institution of further education and if the institution agrees that that would be the best provision for that young person, the change will make it legal for the further education college to provide that education.

378.

Mr S Wilson: Is such provision not already in place? Many further education colleges, for example Castlereagh College of Further and Higher Education, provide education other than at school (EOTAS) courses. Are they doing that illegally?

379.

Mr Smyth: I wish that you had not asked that question. Much of what goes on has been cobbled together because it works; we are not sure that there is statutory cover for it.

380.

Mr S Wilson: This Bill will definitely provide statutory cover.

381.

The Chairperson: I look forward to seeing that admission in print. It is an honest observation, and doubtless correct. Does the clause give formal recognition to education other than at school?

382.

Mr Smyth: The Education and Libraries (Northern Ireland) Order 1986 gives education and library boards the power to make arrangements for the education of children other than at school. It is therefore possible under the present law. However, the law does not allow those children to be formally enrolled in an institution of further education and to receive their secondary education in that institution.

383.

Mr S Wilson: That is up to the board to arrange. Secondary schools may be concerned that colleges of further education will use this legislation to poach youngsters from secondary schools to fill courses or that a board may simply take 14-year-olds because it wishes to ensure that further education courses are viable. A 14-year-old may find a college of further education more attractive than school.

384.

Mr Smyth: The legislation will not enable that situation to arise; it makes it clear that the board must do this. A further education college could not poach pupils from the local secondary school without reference to the board. The arrangements must have the blessing of the board and the college and can only be made under the aegis of the board. It will not, therefore, be possible for further education colleges to poach pupils from schools. A college would be acting illegally if it made secondary education available to youngsters of 14 or 15 outside arrangements made by the board.

385.

The Chairperson: We move on to clause 34, which deals with the abolition of corporal punishment.

386.

Mr Smyth: Essentially, this is a matter over which we have no discretion. The proposed legislative changes are necessary to comply with the judgement made against the United Kingdom in 1993 by the European Court of Human Rights. It will bring the legislative provisions in Northern Ireland into line with those that have existed in Great Britain for some time. The Committee may question why this has not been done before, since the judgement was made in 1993, but this is the first opportunity we have had to introduce the required primary legislation.

387.

Rather than amend the legislation, we are repealing it. The legislation outlaws corporal punishment in grant-aided schools and replaces it with a new provision that outlaws it in all schools, including independent schools and in education other than at school (EOTAS) settings, where education is provided through arrangements with an education and library board.

388.

The legislation outlawing corporal punishment in grant-aided schools was introduced here in 1987, so it has existed for a long time. It also applies to further education colleges. Young people are defined as pupils until the age of 18, because those over 18 are defined as adults who are capable of taking litigation for assault; they are not covered by law. The new legislation will bring Northern Ireland into line with the rest of the United Kingdom.

389.

Mr K Robinson: Paragraph two of the North Eastern Board's submission says that the Department should include clear guidance about action that can be taken to restrain a child. That is a concern.

390.

Mr Smyth: I am surprised that the board said that, because the Department has issued a circular - number 199/9, 'Pastoral Care: Guidance on the Use of Reasonable Force to Restrain or Control Pupils'.

391.

Mr K Robinson: Do you feel that that is clear, despite what the North-Eastern Board said?

392.

Mr Smyth: Yes. If the board has a problem with the guidance and wants clarification, the Department will be glad to address its concerns.

393.

Mr McLoughlin: Does Mr Smyth have any views on the evidence from the Children's Law Centre and Save the Children about clause 34(4)?

394.

Mr Smyth: Their view was that clause 34(4) should correspond with article 4 of the 1998 Order. It struck me as strange that there were differences; I will take that matter up with the draftsmen.

395.

The Chairperson: We shall move on to clause 35, which deals with reports and returns.

396.

Mr Smyth: There are three Departments - Education, Employment and Learning, and Culture, Arts and Leisure where there used to be one - that can receive reports, returns and information from various bodies. However, they can do that only for the functions that they have under the Education Orders. Similar provision is made for education and library boards receiving reports and returns from schools. However, boards and Departments have been given additional functions, for example, under the equality provisions of the Northern Ireland Act 1998.

397.

The new provision ensures that Departments and boards can obtain reports, returns and information that relate to any of their statutory functions, not just their functions under the Education Orders. If they have statutory functions under other legislation that require information, this provision will give them the right to receive it. Clause 35 tidies up the legislation and takes account of recent developments where the three Departments have been given additional statutory duties for which they may require information from boards and schools.

398.

The Chairperson: Is there a need to add the Northern Ireland Council for Integrated Education (NICIE) and the Council for Irish-medium Education to the list of bodies?

399.

Mr Smyth: I intend to take that up with the draftsmen, because the Bill covers only statutory bodies. I am not sure about the extent to which the legislation can require non-statutory bodies such as NICIE to provide information.

400.

I am not aware that there were problems in the past. There have been one or two problems with some schools providing information about community background, but that is not widespread. I do not anticipate that the changes will make much difference in practice.

401.

Mr S Wilson: Is the proprietor of an independent school a statutory body?

402.

Mr Smyth: No. However, it is a school, and the Departments might seek information from schools. Schools form one category. Information might be sought from other bodies, but they are all statutory bodies. I will take the issue to the draftsmen.

403.

The Chairperson: That completes our consideration of the clauses today. Mr Smyth, on behalf of the Committee I thank you for your detailed responses. Presumably when you reflect on the queries and the points that we have raised, you will appear before the Committee again.

404.

Mr Smyth: I will do that if the Committee wishes. We will consider the points - some will be fine; others I am not so sure about, and some will require advice from the draftsman. We need advice on what is required, especially regarding best interest, and on whether clarification on preventing bullying is necessary to ensure that the provision is not rendered impractical. It may be necessary to qualify it in some way. It is a question of taking measures to prevent rather than absolute prevention. Those are the issues that we must consult on.

405.

Mr S Wilson: Some people obviously think that you do not know how to draft Bills. A 5,000-page Bill would have been written if those who had written the submissions had been let loose on it.

406.

Mr Smyth: Some of those who wrote the submissions would never make parliamentary draftsmen.

407.

The Chairperson: We are still on record.

408.

Mr Smyth: I assure the Committee that the individuals concerned are - I hope - friends and colleagues of mine.

409.

Mr S Wilson: Not after that remark.

410.

The Chairperson: Thank you very much indeed. I suggest that we ask the Assembly legal adviser to consider the wording of some of the clauses.

MINUTES OF EVIDENCE

Thursday 26 September 2002

Members present:

Mr Kennedy Chairperson)

Mr S Wilson (Deputy Chairperson)

Mrs E Bell

Mr Gibson

Mr McLaughlin

Mr K Robinson

Witnesses:

Mr S Peover )

Mr J Caldwell ) The Department of Education

Mr E McCloy )

411.

The Chairperson: Good morning and welcome to the Committee. Copies of questions received during the week from the South Eastern Education and Library Board and the Human Rights Commission will be circulated at the meeting for members' information. All written submissions received on the Bill should be included in the Committee's report. The normal procedure is to deal with each clause individually. After witnesses have given a briefing on the clause, members can ask questions.

412.

Mr Peover: Clause 1 sets out the basic provision that introduces the common funding scheme. I told the Committee at our last meeting that existing arrangements do not allow for a common funding scheme. Rather than have a scheme in each board area, another for the Department of Education, one for grant-maintained integrated (GMI) schools and one for grammar schools, statutory provision has been made for a common funding scheme. The purpose of clause 1 is to create a framework for this, to define the schools to which the scheme will apply and to set out the consultation arrangements for it.

413.

The Chairperson: Why are you not required to put an order detailing the formula subject to affirmative, confirmatory or negative resolution before the Assembly? You are seeking fairly far-reaching powers through the Bill. For the purposes of scrutiny and to keep the Committee and the Assembly content, it would be better to make those changes via the democratic process.

414.

Mr Peover: During the general briefing on the Bill, I said that the scheme and the formula are complicated and detailed documents and that they are varied regularly by the Department and its education partners. That has always been the case since LMS was created, and it will continue to be the case under a common scheme because anomalies and hard cases arise. A steering group comprising the Department and its education partners considers amendments to the scheme. The scheme is not only complicated - all the parts are interrelated. It is not simply a matter of changing one element; we have to determine how changing one element will affect the others.

415.

It seems to us appropriate to work with our education partners. We have detailed consultation arrangements in the scheme that require us to take the views of the main partners and schools. We have a mechanism at ground level to agree the details of the best way forward. It did not seem to us that the statutory process of approval for the scheme was desirable or essential.

416.

Mr S Wilson: You do not seem to see a need to talk to the Committee for Education or the Assembly on anything. When I listen to your patronising response and I read your document I wonder if you realise that devolution has taken place. There is no mention in clause 1 of any consultation with this Committee or the Assembly. It may be that we are relegated to "such other bodies and persons" as the Department thinks fit. I hardly think that is the way to treat this elected body on something as important as the amount of money that goes to schools and therefore enables the youngsters of our constituents to be properly educated.

417.

The fact that the scheme is complicated and may require variation should not exclude it from being open to scrutiny. The Committee spent a lot of time responding to your consultation document on the common funding formula, and the way in which you treated that document was to dismiss around a third of the recommendations, some of which were important.

418.

The Chairperson: We will have the opportunity to discuss that at a later meeting.

419.

Mr S Wilson: It is even more important, therefore, that the Department is required to produce the formula for ratification. Can you explain to the Committee why, if it is so impossible for the Department of Education in Northern Ireland to consult and use statutory rules to present the formula for funding schools, it can be done in England and Wales? Is it because we might understand the formula less well than politicians in England and Wales; or is it simply that you want to live in splendid isolation in Rathgael House?

420.

Mr Peover: I am not sure that I understand the reference to England and Wales, and I do not understand Mr Wilson's point. In England and Wales, LMS schemes are operated by local authorities.

421.

The Chairperson: I understand that in England and Wales the fair funding regulations are remade each year.

422.

Mr Peover: They do not set out the detail of LMS schemes in each local education authority's area.

423.

The Chairperson: There is a regulation by which the democratic process can make a serious input. That is the point.

424.

Mr Peover: I can only reiterate my point. The Department's view is that the detail of a scheme of this type, which is only one among many that the education service operates under, is not suitable to be subject to a statutory process. When changes are made on a regular and continual basis, the impact of one proposal for change on all the other aspects of the formula must be modelled before it can be run. That has been the experience of the education and library boards. They do not simply introduce changes as a matter of conceptual scrutiny of the formula. A proposal is brought to them; suggestions are made; and they are modelled against the impact of that change on not only the group of schools affected, but on all schools across the board's area and on all other aspects of the formula.

425.

I am not trying to be patronising. It is not that the Department is cleverer than other people, but that the formula needs to be modelled against a set of data. Those data have to be run through fully. It is a considerable and complicated process, which the Department does not believe to be appropriate for a process of statutory approval.

426.

Mrs E Bell: Although I do not associate myself with Mr Wilson's remarks, the Bill does give the Department far-reaching powers, and there needs to be more processing before legislation is produced. The Committee needs to be informed as much as possible about what the modifications are and what the Department does to deal with them.

427.

I want to ask about clause 1(6), which, is about consultation. Having been a member of several boards of governors, I worry about their responsibilities within this clause. It states that

"Each board shall, in such manner as the Department may direct -
(a) consult the Board of Governors of every relevant controlled and maintained school in its area about the draft scheme".

Are you content that that will be done properly and that it will be done efficiently, so that everyone concerned is clear about how it is implemented? It states in subsection (b):

"inform the Department of the outcome of those consultations."

Is that a statutory duty on the boards? Should they inform the Department in an unofficial manner?

428.

Mr Peover: It is a statutory requirement to inform the Department. It expects boards to consult every board of governors, as they are currently required to do.

429.

Mrs E Bell: I understand the difficulties that arise from that.

430.

Mr Peover: I do not minimise the difficulties. Boards of governors largely comprise lay people with many responsibilities, and the formal operations are complicated. Ultimately, it is important that boards of governors, which are advised by their senior management teams in schools, principals and vice-principals and so on, are able to consider the effect of the formula on their particular schools.

431.

It has always been a principle of LMS that schools are consulted at various stages of the process, because they can judge how changes affect them. That is simply progressing what the Department believes has been good practice with regard to the existing LMS formula. If anything, it is more necessary to make that formula stronger.

432.

The Chairperson: Will you clarify the position? Is the Department trying to get power to bring in a formula after consultation, either with or without modification? In other words, will it do what it likes?

433.

Mr Peover: That is not my interpretation of the matter.

434.

The Chairperson: Is it a fair interpretation?

435.

Mr Peover: No, it is not a fair interpretation. A variety of views will be expressed in any consultation about change. Some people will like the change; some will be indifferent to it; and some will oppose it. Some organisation, whether the education and library board, the Department, or both, must decide how to proceed. Someone has to be responsible for decision making when different views expressed by various interest groups about the effects of the change are involved.

436.

The Chairperson: Is it unreasonable for the Committee or the Assembly to expect to make a greater contribution than that which the Department envisages?

437.

Mr Peover: It is entirely reasonable. We sent a draft of the common funding scheme to the Committee, and we envisage pursuing that process and consulting the Committee about the scheme and the formula. We have undertaken to offer the Committee an illustrative assessment of the impact of the common formula, when we have enough information on the outcome of the current budget round and pupil projections. We intend to be as open and transparent as possible. Schools will have a budget, and they will know what the impact is. There is no point in hiding it. Schools must make their input based on as much information as possible.

438.

The Chairperson: We will be returning to the Committee's recommendation.

439.

Mr S Wilson: Mr Peover, if you intend to allow the Committee to see, and be consulted on, the proposals - I assume that it is a body that you think fit - and to see the outworking of that, why should the Assembly not make the final decision? It will affect so many people across Northern Ireland. Will the scheme not have more authority, if it has the imprimatur of the Assembly, rather than just that of officials? What is the Department running away from? As it is going to explain the model, the impact on schools and the changes, why should the Assembly not make the final decision on whether those changes will be desirable?

440.

Mr Peover: The Department is not running away from anything. The consultation process, as described in the legislation, is as open as possible. All the interested parties, including the management authorities and individual schools, are in involved. They can make representations to the Department, their managing authority, MLAs, MPs or whoever. The process of consultation and agreement is open.

441.

The scheme is a detailed, practical matter of funding schools, and it did not seem to the Department to be an appropriate subject for statutory clearance. It seemed unnecessarily detailed. The Department is happy to consult all the parties, including the Committee. It has consulted the Committee extensively already and will continue to do so.

442.

Mr S Wilson: What should be more open to account than the amount of money available to a school for the delivery of education? We will all bear the consequences if it is wrong and disadvantages schools in our constituencies. If we are talking about accountable government, that sort of issue should be more open to account than some of the others that the Assembly has a say in.

443.

The Chairperson: We have dealt with the general principles fairly well. I wish to turn to the detail of clauses, including clause 1. Clause 1(10) says that where changes to the scheme are not considered significant by the Department, the need to consult can be waived. What does the Department consider to be significant changes, and what changes would not fall into that category?

444.

Mr Caldwell: That is the standard arrangement which applies in education and library board schemes where there are variations judged significant or otherwise. There is no hard-and-fast rule as to what constitutes a significant difference, but in practice, if it were the simple upgrading of a factor to take account of average teacher salaries, that would not be judged a significant variation. If we completely changed the way a factor operated or introduced a new factor or way of processing the data within a factor, that would be a significant variation, and we should want to consult on it.

445.

The Chairperson: So it is entirely at the discretion of officials.

446.

Mr Caldwell: In precedent and practice, yes.

447.

The Chairperson: And you are obviously content with that.

448.

Mr Caldwell: You can set out a significant variation, but it would be hard to describe the other one.

449.

The Chairperson: Yes. In my experience, it has been very hard to describe anything as being insignificant.

450.

Mr S Wilson: Something is significant to a school if it affects its budget.

451.

The Chairperson: Are there any other questions on anything in clause 1?

452.

Mr McLaughlin: Is there a reason for not involving recognised unions under clause 1(4)?

453.

Mr Peover: There is no specific reason for it. Such other bodies as we see fit can be consulted - anyone.

454.

The Chairperson: Perhaps they are insignificant.

455.

Mr Peover: They are far from that.

456.

Mr McLaughlin: You have not specified them.

457.

Mr Peover: No, we have not. What we have specified are the -

458.

Mr McLaughlin: Why did you not specify the unions?

459.

Mr Peover: The existing local management of schools schemes are operated by education and library boards, and they are required to consult not only schools but also the CCMS in relation to the sector. The Department consults the grant-maintained integrated and voluntary grammar school sectors.

460.

The managing authorities have been the providers of funding under existing local management of schools schemes. It seemed appropriate to bring them into the legislation explicitly as the authorities to be consulted. The chief executives of the education and library boards are accounting officers for the resources in the maintained and controlled schools in their areas. They have personal financial responsibility, as does the board, so we felt it desirable to specify the boards and the CCMS in the legislation as groups which must be consulted as part of the process of preparing draft schemes. It is a transfer of responsibility from the boards to us in the Department. That is the rationale for having them there.

461.

Mr McLaughlin: All parties in the Assembly, as well as society in general, would recognise that teachers and their unions are key stakeholders in the education system and should be specified as of right.

462.

Mr Peover: We too recognise that they are key stakeholders, and we have mechanisms for consulting teaching unions on issues to do with policy, salaries and conditions of service through the negotiating machinery. We regularly consult the teachers' unions. To date, they have never been specified under local management of schools schemes, but that does not prevent their being consulted. The rationale for that part of the clause is that the current managing authorities are brought forward from the existing legislation into the new legislation.

463.

Mr McLaughlin: Without your trying to improve things as you go on.

464.

Mr Peover: Yes. If I can go back as far as 1989 -

465.

Mr McLaughlin: I presume the existing model would not be changed unless we thought that it could be improved.

466.

Mr Peover: Yes, the rationale behind the process set out in 1989 was that the groups affected by schemes, such as LMS and the Curriculum Advisory and Support Service (CASS), were schools. They knew whether their services would be enhanced or detrimentally affected by any changes and what their priorities and pressures were. Other people can act as proxies and put views on behalf of groups, but schools were the bedrock of the consultation, and that concept is maintained in the Bill. Every school is consulted on the content and impact of the formula on its circumstances.

467.

The Chairperson: In the common funding formula proposal, the Department intends to fund preparatory departments at 30% of the approved teaching costs. Why is clause 2(7) included? Does that mean that the Department can reduce the funding without consultation or approval from the Assembly?

468.

Mr Peover: The Department has reduced the funding of preparatory departments over several years, and it now runs at 30% of the teaching costs.

469.

The Chairperson: I understand that, but I am not querying the background. We know by how much the Department has reduced the funding of preparatory departments. However, can the Department reduce the funding to nil without consulting with or getting approval from the Assembly? Yes or no?

470.

Mr Peover: A Bill will come before the Assembly. If it is passed, the Assembly will have approved the Department's power to reduce the subsidies to nil. The Assembly is being -

471.

The Chairperson: So, the answer is yes.

472.

Mr Peover: The question was whether the Department would reduce funding without consulting the Assembly. The Assembly is being consulted through the Committee Stage of the Bill, and the power to enable that reduction is being included in the Bill.

473.

The Chairperson: Yes, but -

474.

Mr Peover: The Department would not just announce that from next September it will reduce the funding for preparatory schools to nil. The Department always consults with education partners and schools before changes are made. It is merely a proposal that the Bill contain a provision to reduce funding to nil.

475.

Mr S Wilson: Why is that provision being sought?

476.

Mr Peover: The Department has reduced the subsidy, and the provision is being sought to enable us to reduce the funding to nil. The rationale is that the only real admissions criterion for preparatory departments is the parents' ability to pay the fees. We have more than enough primary school places, so there is no rationale for providing a subsidy to a fee-paying arrangement.

477.

Mr S Wilson: According to the Programme for Government, you are going to subsidise Irish-medium and integrated schools, even though there is surplus accommodation, so your argument is a bit thin.

478.

Mr Peover: It is not thin. We do not subsidise Irish-medium schools. We meet the costs of Irish-medium and grant-maintained integrated schools because, so far as possible, we are required to provide education according to the wishes of parents. Preparatory schools have no distinctive ethos, background or religious traditions. They are primary schools on the sites of grammar schools.

479.

Mr S Wilson: Yes, but parents have chosen them.

480.

Mr Peover: No one is required to cater for every choice that parents make.

481.

Mr S Wilson: Are you saying that some choices are more important than others?

482.

Mr Peover: Yes.

483.

Mr S Wilson: Oh right. Thank you very much.

484.

Mr Peover: Of course they are. How else -

485.

Mr S Wilson: And the Department, without consulting the Assembly, will be the final arbiter on the provision.

486.

Mr Peover: As I said earlier, the Department will submit proposals if it seeks to amend legislation, such as that to change the rates of subsidy to schools, but current legislation allows us to meet the expectations of parents if it does not involve unreasonable public expenditure. The question is: what is unreasonable public expenditure? The Assembly could debate any proposal to remove subsidies from preparatory departments. In the past we have taken the line that, in the main, there are more than enough primary school places in the controlled and maintained sectors. There is no rationale for heavily subsidising what is effectively a form of private education.

487.

The Chairperson: Could not the same argument be made in respect of the integrated sector and the Irish-medium sector? For instance, provision could be made for a more natural integration or to enable certain schools to focus on teaching Irish- it could be taught on a widespread basis in most of the maintained sector. However, instead, special arrangements have been entered into for those sectors. Clearly, this has more to do with the politics of envy.

488.

Mr Peover: Which is more to do with the politics of envy?

489.

The Chairperson: The politics of envy are that you are not prepared to give funding to parents who have a perfect right to choose to send their child to a preparatory school. Why are you being inconsistent?

490.

Mr Peover: It is not inconsistent. What distinctive features do preparatory departments have that ordinary primary schools do not have?

491.

The Chairperson: It is to do with the principle of parental choice that you have already mentioned.

492.

Mr Peover: Why do parents choose to send their children to preparatory schools? What distinctive features attract parents to those schools?

493.

The Chairperson: They choose to have their children educated in that way. They are not asking for 100% funding.

494.

Mr Peover: Why do they make that choice? Funding is available for parents, if their requests can be fulfilled within the controlled or the maintained sectors. In some cases, they may also be fulfilled in integrated Irish-medium schools. There are some controlled and integrated schools in the controlled sector. There are also grant-maintained integrated schools. Some Irish-medium units are part of the maintained sector, but there are also free-standing Irish-medium schools. All those choices are available to parents, and they are distinctive choices. What distinctive aspects of preparatory education justify the public purse's meeting the costs, either partially or fully?

495.

Mr S Wilson: Parents who send their youngsters to preparatory schools also pay into that public purse. You are not dispensing largesse to people who have not made a contribution. It is nonsense to suggest that this is a gift to those people - they have already made a contribution to the public purse.

496.

Mr Peover: The basic point remains: what is the rationale for providing a subsidy for preparatory departments when the form of education that they offer is available in controlled and maintained schools where we have surplus places? If the controlled and maintained schools were full and extra capacity was needed, I could understand the rationale for effectively buying places in other types of schools. However, no such restrictions exist - plenty of places are available.

497.

The Chairperson: The Department would incur a cost if pupils from preparatory departments were driven into either the controlled or the maintained sector. Why then is the Department not prepared to subsidise preparatory departments? Is it because you consider that form of education to be a privilege or in some way inconsistent with certain social outcomes? Some of us get the rather uneasy feeling that the boot is aimed at the preparatory sector in particular. It is a small sector, but it is being dealt with on a political basis. It is almost a political agenda that finally puts that sector to bed.

498.

Mr Peover: You cannot expect me to comment on political agendas. As far as we are concerned, there is a long-standing arrangement under which preparatory departments receive partial funding. Over the years, we have taken the view that that arrangement is not defensible given that the needs of the children concerned could be more than adequately met in the mainstream sectors.

499.

Over the years we have progressively reduced the subsidy to its current level of 30%. I do not see how that can be portrayed as political, because it is about continuing change in the education system. If someone could provide me with a rationale about the form of education on offer in the preparatory departments and how it is distinct from that offered in a mainstream primary school, perhaps I could see the rationale for a subsidy. However, I have not seen a distinctive argument about their particular features that justify their being funded outside the normal system.

500.

Mr S Wilson: The rationale that you give for other sectors is that choice should be paramount. If you accept the principle of parental choice, it is total arrogance on your part then to suggest that some choices are acceptable but others are not.

501.

Mr Peover: I do not think that you should paraphrase what I say, because that is not what I said.

502.

Mr S Wilson: That is what you said, and Hansard will show it.

503.

Mr Peover: I did not say that parental choice was paramount; I said that under article 44 of the Education and Libraries Board (Northern Ireland) Order 1986 the Department is obliged to make provision for parents to exercise choice, but not where unreasonable public expenditure is involved. We acknowledge that parents want to make distinctive choices for the maintained sector, the controlled sector and for groups such as the integrated sector, and the Irish-medium sector where distinctive forms of education are on offer. If someone can show how the form of education on offer in a preparatory department is distinct from that in a primary school, we will certainly consider it, but I am not aware of any rationale that would say that that is a distinctive choice.

504.

The Chairperson: We have exercised that point very well.

505.

Mr S Wilson: Clause 2(2) says that

"The common funding scheme may include such other provisions .as appear to the Department to be necessary or expedient in connection with the funding of relevant schools."

506.

Clause 2(5)(c) says that the common funding formula

"may include provision taking into account factors affecting the needs of individual schools. subject to variation from school to school".

507.

Clause 2(5)(b) says that the common funding formula

"may include provision for taking into account factors affecting particular needs of any class or description of school".

508.

Are we having a common funding formula or not? If you are going to make all these variations, how do you then maintain that this is a common formula funding?

509.

Mr Peover: I fully understand that point. As we have a very diverse education system with different types of schools that have different relationships with managing authorities, there is a need in the scheme to provide for a very large common core, particularly on issues such as age-weighted pupil units. Other points must also be considered; for example, some schools must meet their own insurance, some must meet part of their administration costs, some operate on a cash basis - there are many differences between types of schools. The legislation for the formula and the formula itself must allow for as large a degree of commonality as possible, given our variety of types of schools.

510.

Mr S Wilson: Is it not going to be a common formula?

511.

Mr Peover: If by "common" you mean regardless of whether a school is a grammar school, an integrated school, a maintained secondary school, a controlled grammar, or controlled secondary school, it will not be entirely common; there will be differences which should relate only to objective factors about the nature of the school, not to the fact that it is in one area rather than another, or that it is being funded by the Department rather than the boards, or being funded by the Western Board rather than the Belfast and so forth. We are looking for a formula, which, as far as the common features are concerned, will not differ between schools of different types in issues such as pupil numbers, accommodation, and sports facilities. However, where there are real, substantial and significant differences between schools that affect how they operate, it would be unfair for the formula not to have some regard to that.

512.

The last time we discussed the Bill, I said that we are not seeking to make all schools the same. The Chairperson asked if this is a way of forcing grammar schools into the controlled or maintained sectors. I said that it is not; it does not change the ethos or traditions of any school. It acknowledges that schools have always had differences in status and different needs because they have traditionally met different aspects of costs themselves. This is not easy: it is common as far as we can make it common, but there will be areas of difference that must be reflected.

513.

Mr Gibson: Clause 2(10) is more or less a variation of what we have been discussing. It relates to awarding money outside the common formula. In what sort of circumstances would that be used? In other words, what departure would be necessary to give additional money that is not already dealt with?

514.

Mr Caldwell: That is again part and parcel of all current local management of schools arrangements. That is the amount of funding known as "excepted items" that boards - and the Department in the case of grant-maintained integrated and voluntary grammar schools -use when schools have a higher incidence of substitution because of long-term sickness or statemented children. Those costs have always been held centrally because there is no formulaic way of distributing the money in advance of a school year. They are held centrally and claimed back by schools. The common scheme introduces a completely common set of arrangements for the claiming back process.

515.

Mr Gibson: That is really an additional common formula?

516.

Mr Caldwell: Except it is not a formula. It is a common claiming process. There is a high degree of harmonisation in that already, but this standardises it.

517.

Mr K Robinson: In clause 2(11), how likely is it - or historically how many times has it happened - that a school would open, close or amalgamate in the middle of as opposed to the beginning or end of a school year? Is this provision included to give advantage to one or a couple of particular types of school management over the traditional school management types?

518.

Mr Peover: It does not happen often. It has been happening less often in recent years than before. Under the development proposal process that we now have, we expect school authorities to adhere to a timetable. That is for a variety of reasons, not least so that parents know whether a school will be open at the start of a school year. The process will ensure that most development proposals will result in schools opening from 1 September in whatever year it might be.

519.

However, schools open occasionally at times other than at the start of a school year. It is not common, but it has happened in the smaller sectors. It may happen because a school is dependent on building work that is delayed beyond the start of a school year. There are circumstances in which a school may open or close during a school year, but you are right that it is rare.

520.

Mr S Wilson: The import of clause 2(1)(b):

"provides for the common funding scheme to require each ELB to delegate to the Board of Governors of each relevant controlled or maintained school its budget allocation for each financial year."

Sorry, that is not the one that I meant.

521.

The Chairperson: We will move to clause 3. Do you have any comment, Mr Peover?

522.

Mr Peover: Clause 3 is taking forward existing provisions in legislation to enable conditions to be applied under the scheme or in accordance with the scheme, via boards and so on. It is designed simply to enable some conditions to be applied to deal with any problems that might arise in a school.

523.

The Chairperson: Is clause 3 not contrary to the ethos of the local management of schools funding, in that it provides for restrictions to be placed on boards of governors with regard to what they can and cannot do without the approval of the relevant education and library board? Will the clause also apply to voluntary grammar and grant-maintained integrated schools?

524.

Mr Caldwell: These arrangements apply only to education and library board controlled and maintained schools. The funding arrangements for voluntary grammar and grant-maintained schools are different because, as they receive cash, they are subject to a financial memorandum that must be agreed with the Department. In effect, the memorandum is the contract between the Department and the school. A document was issued, which we sent to the Committee, that replaced part of the local management of schools schemes that boards published. It set out the financial management arrangements that should exist between the chief executive of the education and library board, as the accounting officer, and the board of governors. It also set out the conditions on which the school is given a delegated budget.

525.

The Chairperson: In that case, could the Department place restrictions on the voluntary grammar and grant-maintained integrated schools?

526.

Mr Peover: The Department has done so. The purpose of the financial memorandum is to ensure regularity and propriety in the way that schools handle public money.

527.

Mr Gibson: Are you saying that, regardless of the administration of a school, it is the responsibility of the various boards of governors to ensure that there is a common funding formula?

528.

Mr Peover: Yes. We must ensure that control can be exercised over how schools spend their budgets.

529.

Mr K Robinson: If we are discussing school boards and governors, I should declare an interest.

530.

The Chairperson: That probably applies to almost everybody here. We could all declare something - other than a unilateral declaration of independence.

531.

Mr Peover: Clause 4 is a basic provision to ensure that the boards of governors have decision-making powers over their delegated budgets. It requires that the amounts be put at the disposal of the board of governors for each financial year. It is part of the scheme under which a school's budget share is determined and then made available to the board of governors, which has discretion in the allocation of resources to staffing, books and materials.

532.

The Chairperson: The Transferor Representatives' Council has questioned the need to include the words " under subsection 4" in clause 4(5).

533.

Mr Peover: Subsection 5 exists to ensure that people who sit on boards of governors are not personally liable for decisions made by the board, if those decisions are challenged. When boards of governors took on these responsibilities, under the Education Reform (Northern Ireland) Order 1989, there was a great deal of concern that individuals, who served on boards on a voluntary, unpaid basis, might become personally liable if a legal challenge were made to the actions of the board. Clause 5 is a way of ensuring that the board is a corporate entity for the purposes of such decisions.

534.

The Chairperson: The view of the Transferor Representatives' Council is that that should be clarified to ensure that

"members of the Board of Governors of a school shall not occur any personal liability in respect of anything done in good faith in the exercise or purported exercise of their powers".

535.

Mr S Wilson: What does the term "in good faith" mean?

536.

The Chairperson: Presumably, it means a great deal to church representatives.

537.

Mr Peover: One could envisage circumstances in which, despite the advice of an education and library board, a board of governors wilfully made an appointment that was not in accordance with procedures. Such action would not be considered to have been taken in good faith.

538.

You are asking why is there a restriction under subsection (4) and if it could be removed. We would certainly consider that. I would need to check with our legal advisers to see if there is any particular rationale. The general intention is that boards of governors, when exercising their functions, should not be individually liable in law for decisions made by the board, unless there is some malfeasance or deliberate maliciousness with intent.

539.

The Chairperson: Are there any other questions on clause 4? Are we happy with clauses 5, 6 and 7? Clauses 8, 9 and 10 deal with the resource allocations plans - the funding and the accounts of the boards.

540.

Mr Peover: We had financial schemes that boards submitted to the Department which outlined their intended spending for the year ahead under various categories. The arrangements now are for resource allocation plans, and those are more detailed and give more information about the way in which boards propose to use their resources. Those provisions will enable the introduction of that regime, together with resource budgeting, et cetera, which are all part of the general Government trend to improve the standard of accounting and oversight in the public sector.

541.

The Chairperson: We were wondering why clauses 8,9 and 10 refer to "the Department" rather than to "the Department of Education"?

542.

Mr Peover: In the interpretation of the Bill "the Department" is the Department of Education, and we are adding in the other Departments specifically. When a Bill covers a particular area - for example, education - it is normal for "the Department" to be the relevant Department.

543.

The Chairperson: Are the draftsmen being careful with words?

544.

Mr Peover: The Interpretation Act 1978 has always allowed "male" to cover "male and female", and there are various conventions under which legislation is interpreted. That is one of those conventions.

545.

Mr McLaughlin: It does not mean "the management".

546.

The Chairperson: CCMS said that it has not been possible to include audited accounts in the annual report in the timescale laid down. Does clause 10 need to be amended to enable a statement of unaudited accounts to be included, with the agreement of the Northern Ireland Audit Office?

547.

Mr Peover: I am not sure that the Northern Ireland Audit Office would be happy with that.

548.

Mr McCloy: The complexities of moving from cash accounting to resource accounting have proved difficult for boards to adapt to and for the audit arrangements to be as effective and efficient. We hope that when these provisions take effect, from 2003-04, the Northern Ireland Audit Office will be able to conform to the timescales laid down.

549.

The Chairperson: Surely CCMS would be expected to conform to the timescales and not the audit office?

550.

Mr Peover: The Audit Office has auditors. All public bodies are required to conform to the timetable for the submission of their accounts, and that is tighter under current arrangements than it used to be.

551.

The Chairperson: We move to clauses 11 to 14 on best value and deal with each separately, starting with clause 11.

552.

Mr Peover: Best value is the replacement for the previous arrangements under which boards were required to test their services competitively. Best value continues to refer to the three Es of economy, efficiency and effectiveness. It also incorporates current approaches to improving the quality of services, particularly consulting the users of services about the way in which they are provided.

553.

It is a different regime, a different approach, to ensuring high-quality and good-value services. As I said the last time this was discussed, the boards voluntarily adopted it and have been engaged in it for some time. Several exercises have been carried out, and a best-value unit has been set up. Outdated arrangements have been replaced by the statutory duty of best value.

554.

The Chairperson: Are the provisions the same as those under which councils now operate?

555.

Mr Peover: Yes. The drafting of these provisions was delayed until the outcome of the discussions on the best-value duty for local authorities was clear.

556.

The Chairperson: Why does the legislation allow boards to decide how to do their duties rather than prescribe the method?

557.

Mr Peover: The method is not prescribed; boards can take on projects and are required to examine areas of their services. Boards are expected to identify their most fruitful areas, as they have done until now, and to pursue investigations. It is preferred - and it makes sense - that that is done collectively rather than individually, since the five boards provide broadly similar services to the schools in their areas. Perhaps Mr McCloy will comment on the approaches taken by the boards.

558.

Mr McCloy: Fundamental reviews of services across the boards are carried out centrally. Similarly, each board has facilities for best-value reviews of specific services in its area. The Department monitors the action plans which stem from them and receives copies of reports and outcomes. Monitoring ensures that effective action is taken to ensure best practice when providing services.

559.

The Chairperson: In respect of clause 11(1), there are variations. The NEELB has suggested including a reference to quality of service. The NASUWT wants health and safety requirements and, with Unison, equality added to the issues to which a board must have regard. What is the Department's view?

560.

Mr Peover: There are statutory obligations with equality, and I doubt the need to replicate the duty on employers which exists in equality legislation. With regard to quality, "effective" means a service which provides what is needed in an appropriate and relevant way. A poor-quality service is not effective. If it is not what people need, and the intended outcomes are not achieved, I do not know under what criterion it could be regarded as a high-quality service. Efficiency, effectiveness and economy pick up the core requirements. An effective service achieves its objectives and is economic and efficient. That is good quality, and I should be surprised if any of the boards want to provide poor-quality services.

561.

Health and safety is a requirement in its own right. There is no impact in a passing two-word reference to something which is elsewhere the subject of detailed statutory provision. I should expect the draftsman to be dubious about attempting to capture in short form a complex set of statutory duties which are specified in legislation and in good practice guides in other settings.

562.

The Chairperson: The draftsman appears to be a cautious individual. If members have no further comments on clause 11, we will move on to clause 12. What is the rationale behind clause 12?

563.

Mr McCloy: The existing provision in article 20 of the Education and Libraries (Northern Ireland) Order 1993 lists some non-commercial considerations which boards must exclude when awarding contracts. The Order-making power will be subject to the approval of the Assembly and is in recognition that some of these non-commercial issues can affect the actual performance of a contractor in relation to value for money. It replicates the provisions in section 2 of the Local Government (Best Value) Act (Northern Ireland) 2002 that are applied to local councils now.

564.

Mr S Wilson: What will be the procedure for seeking Assembly approval?

565.

Mr McCloy: It is an Order.

566.

Mr S Wilson: It just says that a draft Order will be laid before the Assembly for resolution. Will that be by negative resolution, or in what way will the Assembly deal with it?

567.

Mr McCloy: By affirmative resolution of the Assembly.

568.

Mr Peover: I will check that with our legal adviser, but my impression is that it is by affirmative resolution of the Order, which will have to be voted on in the Assembly.

569.

The Chairperson: It is good to know that the Assembly is useful for something.

570.

Mr Gibson: What will be the effect of clause 12 on the public finance initiatives or the public-private partnership contracts?

571.

Mr Peover: Will you repeat that, Mr Gibson?

572.

Mr Gibson: We are discussing the clause on non-commercial interests, and the public-private partnership contracts will all have a commercial interest, as they are commercial ventures.

573.

Mr Peover: That is the case. Public-private-partnership contracts are -

574.

Mr Gibson: Will clause 12 have an effect on those contracts?

575.

Mr Peover: It will not affect public-private-partnership contracts. The clause refers to considerations that boards must take into account when letting contracts for services, which they would otherwise provide themselves. In a public-private-partnership contract the specification is drawn up and put out to tender in the Official Journal of the European Communities, and prospective contractors can tender against that specification and include in their tender proposals to undertake, for example, cleaning or catering services. Those proposals are tested against value for money or what it would cost the public sector to provide the services itself.

576.

A separate process is undertaken to examine a contract. If you are employing a builder to construct an extension, you could undertake the painting yourself - the builder does not get involved in that. He may submit a tender which quotes £3,000 for the job, including painting and decorating. The job can then be costed without the painting-and-decorating aspect. That complicated process goes on in public-private partnerships but is separate from this approach.

577.

Mr Gibson: Does a conflict not arise?

578.

Mr Peover: I do not think there is a conflict.

579.

Mr Gibson: This is to do with a non-commercial operation, whereas public-private partnerships are commercial contracts.

580.

Mr Peover: That is right. Public-private partnerships are contracts where the private sector is expected to take on a substantial proportion of the risk, and it tenders on the basis that it will provide services for a certain cost, which is tested against the public-sector cost of providing those services.

581.

The Chairperson: We will go on to clause 13, which is to be put to the Assembly for affirmative or negative resolution. Is it likely to be affirmative?

582.

Mr Peover: Yes. I shall check with the lawyers to make sure that I am not misinterpreting them.

583.

The Chairperson: Clause 14 deals with the repeal of competition provisions. We shall move on to clause 27, which is entitled "Determination of travelling and subsistence allowances". Is there anything to prevent a board ignoring the consultation and determining its own rates? Not that they would do that.

584.

Mr Peover: I am sure they would not. There are provisions in previous education legislation that require an education body to conform to the directions of the Department on its statutory duties. If someone behaved totally unreasonably we would issue a direction, but boards always act in accordance with their statutory duties.

585.

Mr McCloy: Perhaps I could explain the rationale behind that. Under existing legislation, the Department is required to determine the rates of travelling and subsistence allowances. The new legislation places that responsibility on education and library boards, which must seek the Department's approval of those rates. The reason is to allow a comparable rate to other public bodies. The boards do not have to apply on an annual basis to get them uplifted. That approval extends to uprating due to inflation. It is really an administrative change to make the system more streamlined.

586.

Mr S Wilson: Does it make the system more streamlined? Is this not just a con trick? On one hand you are arguing that it gives more autonomy to the education and library boards, and on the other you are saying that the Department must approve the boards' decisions. Are you saying that if the boards submit wildly different rates, the Department will approve them? Does it not add to the bureaucracy? A board discusses the matter, makes a decision and then has to seek departmental approval. That is just an illusion, is it not? The Department still has the final say. Why pretend that the boards have any say in the matter? Every decision has to be approved by the Department.

587.

Mr McCloy: The education and library boards, as the employers, generally think that they should have that role, because they negotiate terms and conditions of service with their staff. The existing legislation was out of step with the board's requirement to negotiate the rates of allowances. From an operational point of view, the boards do it on a combined basis. They consult on the relevant areas with the staff commission, which is the central co-ordinating organisation for the operation of the industrial-relations side.

588.

Mr S Wilson: Do you envisage a situation in which, for example, the Belfast Board set different rates from the North Eastern board, and the Department's approving that?

589.

Mr McCloy: No. We would not approve that.

590.

The Chairperson: Are they allowed to use red diesel?

591.

Mr S Wilson: So the Department makes the final decision. It just strikes me as odd that you grant that power to the education and library board, yet it has to seek your approval. I imagined that you would tell me that the Department would make sure that rates were similar across the Province anyway. Why not just set them in the first place?

592.

Mr Peover: They are set by negotiation. It is just conceivable that there might be circumstances in which different rates were justifiable. I cannot think of one.

593.

The Chairperson: I come to clause 28 about officers of boards. How will that clause change current arrangements?

594.

Mr Peover: It does not change them a great deal in practice. There has always been a requirement for chief executives and chief librarians to be appointed, and the clause acknowledges the existence of the Department of Culture, Arts and Leisure and its role in the library service. When devolution took place, responsibility for the library service moved to the Department of Culture, Arts and Leisure. The clause formalises the arrangements under which libraries are now part of that. However, it has always been a requirement for boards to appoint a fit person as the chief executive and for their decision to be subject to departmental approval.

595.

The Chairperson: We shall not pursue that. Will the Department still be able to direct that certain officers must not be removed from office?

596.

Mr McCloy: No. That provision is removed.

597.

The Chairperson: Should clause 83(1)(a) of the Education and Libraries (Northern Ireland) Order 1986 be amended to include references to the chief executive's role as accounting officer?

598.

Mr Peover: No. Before the boards' chief executives were chief executives, they were chief education officers, and the general requirement is for local education authorities to have a chief education officer too. It merely says that the chief executive of the board is the chief education officer and secretary to the board. It spells out in statutory form the responsibilities of the chief executive for the board itself. The accounting officer responsibilities are placed on him or her by means of a letter issued by the Department's accounting officer nominating him or her as the accounting officer and setting out the duties, so there is a separate process of specification as accounting officer.

599.

The Chairperson: The North Eastern Board drew that to our attention. I thought that it ought to be so.

600.

Mr Peover: It is not necessary, since accounting officer duties were established long since.

601.

The Chairperson: But you will consider it.

602.

Mr Peover: I shall certainly consider it, but I do not feel it is necessary.

603.

The Chairperson: We now come to clause 29, which deals with principals on teaching appointments committees. What is the purpose of the change, and why is it necessary?

604.

Mr Peover: The education and library boards have told us that it can be difficult to have adequate teacher representation on appointments committees. They are keen to have a panel on which to draw, perhaps with people from outside the board area with particular expertise or from a particular type of school. It is intended to reflect the concerns expressed by boards and the representations made to us for greater flexibility in the arrangements for teaching appointments committees.

605.

The Chairperson: Will this change give principals from another board area voting rights? Was consideration given to appointing them in an advisory capacity only?

606.

Mr Peover: That sometimes happens at present. If you wanted someone with a particular background, that person could sit in on a teaching appointments committee as an observer and adviser.

607.

The Chairperson: So such people cannot vote.

608.

Mr Peover: No, they cannot. These arrangements would allow people to be members of the committee rather than observers, so their role would change. As I say, it is in response to comments from boards that it can sometimes be an onerous duty for individuals caught up in many appointments. They would rather have a panel on which they could draw than simply two individuals involved continually, particularly at heavy times of the year when many appointments are made.

609.

The Chairperson: The school population is not too large, so teaching staff, who seek appointments, have regular contact with each other.

610.

Mr Peover: Yes.

611.

The Chairperson: Would that put anyone in an invidious position?

612.

Mr Peover: It is to be hoped that it would not. Such decisions are made at local level. When inviting people to sit on an interview panel, the board of governors must ensure that it does not compromise the selection process. As Mr K Robinson said, people must declare an interest if they discover that a member of their staff or families is a candidate. There are arrangements in the standing orders for teacher appointment committees that should deal with such situations.

613.

The Chairperson: How will clause 36 on the annual report of boards change their accounting arrangements?

614.

Mr McCloy: Under current legislation, the Department is required to publish accounts for the five education and library boards and to lay them before the Assembly. Non-departmental public bodies have a responsibility to publish their accounts as part of their annual reports, and clauses 10 and 36 require boards, if they have published their annual reports, including accounts, to lay them before the Assembly. The rationale for omitting the requirement for a summary is that, rather than the previous cashed-based accounts, there is a movement to accruals-based accounts. Consolidation of accruals accounts is misleading because inter-board transactions are included in each set. Although the Department will provide a limited summary in the intervening period to conform to existing legislation, a board's annual report, including accounts, will be a more informative document.

615.

The Chairperson: Why include clause 1 (12) when the transfer of the funding responsibility for voluntary grammar schools and grant-maintained integrated schools to the education and library boards has been deferred until the outcome of the review of public administration?

616.

Mr Peover: Clause 1(12) is included because it is still the Department's intention to transfer funding responsibility from the Department to whatever organisation exists after the review of public administration. Clause 1(12) provides the statutory cover for a date to be set on which that transfer can happen. We do not know what the outcome of the review of public administration will be. It may leave the current arrangements in place; it may create radically different arrangements. Therefore, it seems pointless to transfer that responsibility now, when it was intended to transfer it on the implementation date of the common funding formula. Given the potential change in structures, it does not seem sensible to implement the transfer statutorily. When the Department knows the new structures, the transfer will happen on an appointed day.

617.

The Chairperson: Is it reasonable to say that it is not anticipated that the change will happen soon?

618.

Mr Peover: The timetable for the review of public administration assumes that it will publish a report in December 2003, which will be subject to extensive discussion and consultation.

619.

The Chairperson: Thank you for attending the meeting. It has been a useful and, at times, robust exchange.

620.

Mr Peover: We will come back to the Committee on the legal nature of the Orders.

MINUTES OF EVIDENCE

Monday 7 October 2002

Members present:

Mr Kennedy (Chairperson)

Mrs E Bell

Mr Gallagher

Mr Hamilton

Mr McHugh

Mr K Robinson

Witnesses:

Ms S Fitzpatrick ) NIPPA-The Early Years
Organisation

621.

The Chairperson: The Committee welcomes Ms Siobhan Fitzpatrick, chief executive of the Northern Ireland Pre-School Playgroup Association (NIPPA). This is an evidence session on the issue of two-year-olds receiving funded nursery places. NIPPA has raised several concerns regarding the legislative loophole that enables two-year-olds to receive funded nursery places, when some older children, up to the age of four, do not. NIPPA would like this to be addressed in the Education and Libraries Bill. The Council for Catholic Maintained Schools has raised similar concerns.

622.

On 12 September, the matter was discussed with the Department and it indicated its intention to hold a consultation on the issue and to seek the next legislative opportunity to address the matter. The Committee, therefore, has agreed to take evidence from NIPPA to assist further consideration of the matter during the clause-by-clause scrutiny of the Bill.

623.

Members already have copies of NIPPA's written submission and the comments from the Council for Catholic Maintained Schools (CCMS). After Ms Fitzpatrick outlines the issue and the views of NIPPA, members will have an opportunity to ask questions.

624.

Ms Fitzpatrick: I would like to thank the Committee for the opportunity afforded to NIPPA to present its views. As the Chairperson has stated, NIPPA's concern was first alerted when it read the proposed Education and Libraries Bill and realised that the current legislative loophole, which allows the admission of two-year-olds into statutory nursery provision, was not addressed in that Bill.

625.

Since the pre-school expansion programme commenced in 1998, NIPPA has raised this issue together with other professional colleagues. Prior to 1998, the likelihood of a two-year-old being admitted to nursery school provision was remote, given the low level of provision here in Northern Ireland. However, with the pre-school expansion programme, and the move towards 100% funding for children in their immediate pre-school year, the situation has changed dramatically.

626.

Department of Education figures suggest that as many as 10% of two-year-olds are in nursery schools. A quick sum, based on the current rate of funding at £1,275 per place, would indicate that roughly £1·2 million is being spent on the two-year-olds, while approximately the same number of children, in their immediate pre-school year, cannot avail of places. Apart from the value for money and proper expenditure of public funds considerations, NIPPA and other professionals are concerned about the impact that the admission of two-year-olds into nursery schools could have on the children themselves. We are concerned because all child development theory suggests that the current pre-school curriculum is not suitable for younger children. It is not age-appropriate, and, rather than supporting educational development, research suggests that children in an inappropriate environment are likely to do less well in pre-school and school.

627.

We are also concerned, as are many nursery school teachers, that staff have not been trained to meet the social, emotional, physical and, indeed, cognitive needs of these very young children. Anecdotal evidence suggests that teachers are spending a great deal of time in personal support regimes - toileting children rather than teaching them. Another concern is that nursery buildings are not suitable as regards physical layout. They do not have the same physical requirements as a full day nursery in terms of sleeping and toileting arrangements or the provision of outdoor play space for younger children, et cetera.

628.

The staff ratio for a child of two in a day nursery registered by the Department of Health, Social Services and Public Safety is 1:5. In a nursery school that ratio drops to 1:13. Some education and library boards have employed classroom assistants to support these younger children, but we feel that that is not an appropriate use of existing limited financial resources.

629.

Another concern is that 10% of pre-school places are being taken up by two-years-olds. The result is that the very group that the pre-school expansion programme is targeted at is being deprived of those places. The situation is, I know, very difficult to deal with. Many nursery schools, especially in Belfast and other urban areas, were built in the late 1960s and early 1970s. Populations have changed since then. If the two-year-olds were to be removed from such nursery schools, the viability of those schools may be in question. There is an opportunity to change the legislation and to do what the Labour Government, faced with a similar situation in England, are doing. The Government are creating integrated children's centres for younger children and are focusing on a foundation stage for pre-school children.

630.

The Chairperson: Thank you for that concise report.

631.

Mrs E Bell: I know that your comments are as a result of your great experience in this field. You mentioned current staff ratios and the fact that you are concerned that training is not in line with the potential legislation. Are you suggesting that training should be dealt with in the Bill or is it something for future consideration?

632.

Ms Fitzpatrick: If teachers are to be faced with these very young children, then teacher training would need to be reviewed. I hope that the Education and Libraries Bill can remove that legislative loophole, so that teachers would not be faced with the specific training demands required for that very young age group.

633.

Mrs E Bell: I am also concerned about children with special needs. Might the new legislation be detrimental to very young children with autism or behavioural problems, for example, because although those conditions may be detected, they may not be able to be dealt with at that age?

634.

Ms Fitzpatrick: That could be a concern also.

635.

Mr K Robinson: You rightly highlight the point about demographics, which are extremely important, particularly in relation to urban schools, when considering whether a school remains in existence. I can, therefore, understand the desire to retain the two-year-old children, but we could be causing them damage rather than giving them benefit.

636.

I want support for two-year-olds, but the support being discussed does not seem to be the right sort. We are bringing them into contact with adults who are not properly trained, and, therefore, the children are not getting any benefit from an educational point of view either. You mentioned the integrated children's centres in England for pre-school children. Could you elaborate on that?

637.

Ms Fitzpatrick: It has been a very interesting development spearheaded by the Labour Party's commitment to ending child poverty and promoting best practice in early childhood care and education. It has been recognised through the development and funding of neighbourhood nurseries and through the recent development of children's centres, that children from 0 to 3 years of age need support and intervention. However, it has to be appropriate support and intervention. The Labour Government are spearheading several new initiatives, led by Manchester Metropolitan University, to create appropriate curriculums and environments for younger children.

638.

There are several "centres of excellence" in England, which are seen as beacon centres by the Government. For example, the Pen Green Centre in Corby integrates care and education for the younger age group, but it also has nursery provision for the older age group.

639.

Mr McHugh: It is difficult subject, and people have different views on it. Is it possible that the situation is being used as a cheap form of childcare, considering that it costs, I think, £1 an hour compared to £3 an hour for childcare in the private sector? How much of that is going on? Should those children be outside their homes at all at that age? What is the impact on children when they get to primary 1, considering that the curriculum is sometimes wrong for three-or four-year-olds, never mind for those who are two years of age? Often the experience is not good, and it could be damaging to children in later years.

640.

Ms Fitzpatrick: You have raised several valid points. The children would be availing of free places, but you are correct that people who work full-time, and need to avail of childcare for their two-year-olds, often have to pay in the private sector. Research highlights that being exposed to inappropriate educational and care experiences damages young children, and that is against the whole thrust of the purpose of investing in early learning, which is about positive experiences for young children and creating a disposition for learning. Research suggests that if young children are exposed to an inappropriate environment, they will turn off learning, and their self-esteem will be badly affected.

641.

Mr McHugh: Who decides which of the kids go to those schools? Is it the person in charge of the playschool? Do they pick and choose depending on who is asking?

642.

Ms Fitzpatrick: No. There are well-defined admission criteria. I am loath to use the term "middle class", but better informed parents are usually more organised about putting their children's names down for nursery places. They are often more motivated to avail of the places than some of the more needy families.

643.

The Chairperson: What age does NIPPA feel it is appropriate to specify in the legislation? Would it be three years of age or three and a half years of age? Have you a proposal on that?

644.

Ms Fitzpatrick: There has been much discussion with colleagues in educational circles and care circles. In European and international practice, it appears that the common age for admission to pre-school is three. In the UK, we have had a situation in which 100% funding for four-year-olds is moving to 100% funding for three-year-olds. The two-year funding of a foundation pre-school would be ideal. However, regardless of the funding, if we had a common entry of three-year-olds, which applied to nursery schools, pre-school playgroups in the voluntary sector and others, parents would be less confused, and all children in an age group would be treated in the same way with the one curriculum.

645.

The Chairperson: The Department does not believe that the legislation should be amended without consultation. Are your organisation's views widely supported?

646.

Ms Fitzpatrick: Absolutely. NIPPA has been discussing the matter internally since 1998 and, more importantly, through the childcare partnerships, which the health and social services boards have set up. Those partnerships also have the interest of the education and library boards. In the childcare sector, there is a unanimous belief that allowing two-year-olds to continue in nursery school is almost a child protection issue.

647.

Mr Hamilton: In your submission, you stated that some schools would suffer if the two-year-old criteria were removed as some schools are undersubscribed and there are other schools that four-year-olds cannot get into because of the number of places that are occupied by two-year-olds. Is that the case across Northern Ireland, or are certain areas affected more than others? In certain parts of the Province, are some schools massively oversubscribed and others seriously undersubscribed?

648.

Ms Fitzpatrick: The evidence suggests that the worst affected area is Greater Belfast. That is tied with population shifts and to the fact that nurseries were planned when areas of need were identified in Belfast. However, there are similar patterns in other board areas. For example, in Craigavon there could be a pattern of two-year-olds because of population shifts, but, in other areas, it is more complicated due to a pattern of reception provision. The continued existence of reception provision in some areas is pushing nursery provision towards aiming for the younger age group.

649.

Mr Hamilton: You mentioned the fact that 10% of children's places are occupied by two-year-olds. How many places is that?

650.

Ms Fitzpatrick: The expansion programme has created approximately 9,000 places, so it is 10% of that.

651.

Mr Gallagher: Are those two-year-olds in pre-school education for one or two years?

652.

Ms Fitzpatrick: Some of the children continue in pre-school education for two years.

653.

Mr Gallagher: What percentage of those children continue for two years?

654.

Ms Fitzpatrick: I do not have those figures, but I can obtain them.

655.

Mr K Robinson: We understand the curriculum problem and the demographic impact on schools, but I can see the educational benefits of ensuring that three- and four-year-olds are getting a suitable curriculum and meeting appropriately trained staff. That is the educational side of it.

656.

However, the Committee is also conscious of the social side of education. Urban areas such as Craigavon could feel the downside of change in the legislation. How do you see us squaring that circle? If we move the focus to the upper age group - and, I think, rightly so - how do we ensure that we do not negate any possible advantages that the 0- to 2-year-olds might have, particularly in areas where children are getting off to a bad start in education? How do we get appropriate provision and strategies for them?

657.

Ms Fitzpatrick: This issue cannot be seen in isolation, and the Committee has an opportunity to grasp some of those nettles in its inquiry into early years' provision for 0- to 6-year-olds. The Sure Start model for the 0- to 3-year-olds, which health and social services is leading on, has a key educational component for promoting best practice for 0- to 3-year-olds.

658.

That is the model that should be used in conjunction with good nursery education. That is the model that the Organisation for Economic Co-operation and Development report, 'Starting Strong: Early Childhood Education and Care', suggested for developing services for 0- to 6-year-olds.

659.

Mr K Robinson: That model already has a proven record in the north and west of the city.

660.

Ms Fitzpatrick: Yes, and in 23 other areas across Northern Ireland. There appears to be additional funding for additional Sure Start projects in the draft Budget.

661.

Mr K Robinson: So we are not just pulling all resources to one end and totally exposing the other.

662.

Ms Fitzpatrick: Yes. There needs to be an integrated strategy for 0- to 6-year-olds.

663.

The Chairperson: In your response to Mr Gallagher's question you spoke about obtaining figures; who is best placed to provide those figures to the Committee?

664.

Ms Fitzpatrick: The Department or the education and library boards have them.

665.

Mr Hamilton: Your submission listed five disadvantages in the present system. You say that you have been discussing the problems with the Child Care Partnership since 1998. Have you raised the issues with the Department during that time? I know that the Department is talking about putting the matter out to consultation, so what response did you get when you highlighted your concerns about school buildings, suitability of curriculum, teaching staff not properly trained and so on?

666.

Ms Fitzpatrick: Officials would say that I have been like a broken record. Since the beginning of the programme the issue has been highlighted, not just by NIPPA but also by several pre-school advisory groups. I understood that the Department would be taking the first possible legislative opportunity to close the loophole, and I was concerned when I read the proposed Education and Libraries Bill to see that that was not going to be the case.

667.

I understand that this could be controversial from the Department's perspective because there may be a realignment of some provisions. However, it is an issue that should be dealt with sooner rather than later in the best interests of children.

668.

Mr Hamilton: Did you feel that the officials you spoke to accepted that the buildings were inadequate, that the curriculum was not appropriate and that the staff were not properly trained? Did they accept that staff/pupil ratios are concerning?

669.

Ms Fitzpatrick: It would be fair to say that any time the issue was raised, officials gave me the impression that they were not happy that two-year-olds were in nursery education. They saw it as not being the appropriate environment for such young children.

670.

The Chairperson: If the legislation were amended, would it affect particular groups? If so, which ones?

671.

Ms Fitzpatrick: It would affect nursery schools and classes which, because of population changes, are mostly meeting the needs of two-year-olds. Most of those nursery schools are probably in inner city areas. There is an opportunity to reuse those buildings and redeploy staff in a much more imaginative way.

672.

The Chairperson: If the legislation is not amended, what will the effect be on the Programme for Government target to ensure that one year of free pre-school education is available for every child in his or her immediate pre-school year for parents who want it?

673.

Ms Fitzpatrick: Some parents would choose not to send their children to nursery school anyway, even if 100% provision was reached. As long as resources to the tune of 10% continue to slip into services for two-year-olds, 10% of children will not be funded. Therefore, it will be difficult to meet the Programme for Government target.

674.

The Chairperson: Thank you very much for your co-operation.

Written submissions

committee stage of the education and libraries bill

written submission by:
Belfast Education and Library Board

Comments

Part 1

1 (9) and (10)

These clauses give the Department the power to change the common funding scheme as they see fit.

(12)

This makes provision for the Boards to fund all schools including voluntary grammar schools at a future (unspecified) date.

Part II

10 (5)

This makes provision for Boards to lay their annual report (including annual accounts) before the Assembly.

Previously the Department consolidated the five Board accounts (but not the annual reports) and laid them before the Assembly.

12 Exclusion of Non-Commercial Considerations

The board should support the proposals in the legislation and seek rapid implementation in the context of ongoing PFI.

Part III

15 (1) (2 & 3) Duty on Board of Governors to Safeguard and Promote the Welfare of Pupils

All measures pertaining to safeguarding and promoting the welfare of children are welcome. Whilst there may be 'good practice' in relation to this, developing a legislative base and strengthening the duties upon Boards of Governors will ensure that appropriate policies and procedures are in place across the education sector, regardless of the status or type of school. Moreover, the creation of such legislation not only compliments current childcare legislation but also underpins the promotion of human rights and the statutory equality agenda.

Clause 15 (3) is particularly welcome as it demonstrates an extension to the powers held by the Department of Education to direct the BOG where they may be failing to fulfil their duties in relation to children educated or indeed, accommodated in boarding departments.

16 (1) Child Protection Measures

A legislative base for child protection across the education sector is endorsed by DOCPEG (Designated Officers Child Protection Education Group). Since the implementation of Pastoral Care in schools: Child Protection 99/10 a great deal of good practice has been developed. However, there are still a number of schools who do not attend to the guidance given in relation to child protection and placing these 'requirements' on a legislative basis may effectively address these concerns.

It is hoped that all child protection policies will also contain a code of conduct for all staff working in schools as well as a complaints procedure for both parents and pupils.

Training and Support

Should such duties be made a legal requirement, the Board will need to review its existing arrangements in relation to supporting schools and assisting with the training of Boards of Governors, designated teachers and other staff working in schools.

At the present time the current designated officer (and 2 deputies) also have competing demands upon them in terms of their management of the education welfare service and responding to enquiries from DTs. Whilst an annual audit of training needs is undertaken each year of designated and deputy designated teachers, there are also unmet training needs ie all board employees who have contact with children should also be afforded child protection training. It is not possible for 3 individuals to provide support and guidance for designated teachers, engage in the operational practice of child protection and deliver extensive training programmes.

17 School Discipline Measures to Prevent Bullying

It is recommended that all schools be required to have an anti-bullying policy. The draft proposals in Art 17 para 3 states that the principal (is) to determine measures to be taken to encourage good behaviour and respect for others on the part of the pupil. However, the addition of 'and, in particular, preventing all forms of bullying among pupils' will need further consideration while laudable, it is perhaps an unrealistic expectation that a principal will prevent all forms of bullying.

An anti-bullying policy would:

• lay the foundations for a whole school anti-bullying ethos;
• state the school's aims and objectives in relation to bullying behaviour;
• define bullying behaviour;
• describe preventative measures to create an anti-bullying environment (curriculum, pastoral care, classroom management); and
• outline procedures for dealing with incidents of bullying behaviour.

According to recent research (Collins et al, University of Ulster 2001) commissioned by the Department of Education, Northern Ireland appears to have a higher rate of bullying in schools than suggested by similar studies in Ireland, Sheffield and Norway. Given this evidence, it would tend to support the need for a legislative base for anti-bullying work in schools.

21 Removal of Members of Boards of Governors

1. This should be used only in extreme circumstances and after consultation with and the agreement of the employing authorities

2. The "prescribed circumstances" should be clarified in the legislation.

22 Development Proposals for Grant-Aided Schools

1. This proposed legislation would reflect the Board's current practice

2. The legislation should require persons submitting proposals to the Board to include in that submission evidence of the consultation process.

25 Consultation of Schools by Sampling

1. This will help reduce the bureaucratic burden on schools

2. All schools, however, should have the opportunity to make comment if they so wish

3. The schools to be used in the sample should be selected by stratified sampling

4. The number of schools used in any sample should be available on enquiry.

30 Parental Preference for Admission to Nursery Schools

There is no problem with this other than resource implications eg staffing/setting up database

Part IV

27 (1) to (6)

These provisions change the responsibility for the determination of travelling and conference expenses from the Department to the Boards. The Department will now have an approval role rather than a determining role. This will be a matter for chief administrative officers.

Otherwise the Bill is as expected, in that it provides for a common funding scheme and updates financial provisions from the former financial schemes to resource allocation plans.

29 Principals on Teaching Appointments Committee

1. There should be no requirement on an ELB to appoint one or two principals from another ELB's panel

2. The criteria used by the ELBs to constitute their panels of principals should be the same.

34 Abolition of Corporal Punishment

The abolition of any form of corporal punishment, under any circumstance is desirable. It is widely accepted that positive behaviour management techniques are more effective than the punitive 'short, sharp shock'. Indeed, corporal punishment is nothing less than physical assault, which should trigger child protection procedures and report to the PSNI.

35 Reports and Returns

35(2) should also apply to NICIE and Irish Medium Council.

committee stage of the education and libraries bill

written submission by:
The Children's Law Centre

1.0 INTRODUCTION

1.1 The Children's Law Centre is an independent non-governmental organisation, which helps children and young people, parents, carers and professionals work with and understand the law relating to children.

1.2 We carry out the following work:

1. Research on children's rights

2. Training and seminars on children's rights and the law relating to children and young people in Northern Ireland

3. Information service

4. We run a youth group called Youth @ clc

5. We operate a legal advice service for members and the public, including a free phone number for young people

6. There is a casework service in accordance with our casework policy

7. Policy work.

1.3 Our work involves day-to-day contact with children and young people, their parents/carers and professionals employed by the Education and Library Board's regarding education issues.

1.4 We note from paragraph 7 D of the Explanatory and Financial Memorandum accompanying the Education and Libraries Bill that a number of new provisions have been introduced with the aim of strengthening elements of children's rights in education. Our response to the Education and Libraries Bill will be in relation to the implications of these new rights based provisions for children and young people in education. We shall also propose some additional amendments to the Education Committee regarding existing education legislation, with the aim of enhancing and protecting children's rights within the educational sector.

2.0 WRITTEN EVIDENCE

PART III, SCHOOLS: Welfare and Protection of pupils

2.1 Clause 15 - Duty on Boards of Governors to safeguard and promote the welfare of pupils

It is clear from paragraph 7 D of the Explanatory and Financial Memorandum accompanying the Education and Libraries Bill that the purpose of this new provision is 'to place a general duty of care on Boards of Governors for the safety and welfare of children in their charge'.

The Children's Law Centre generally welcomes the introduction of such new provision, however it is felt that the duty placed upon the Board of Governors should be redefined in order to reflect either:

1. The best interests principle contained in Section 3 of the Children (Northern Ireland) Order 1995;

Section 3(1) The Children (NI) Order

3 - (1) Where a court determines any question with respect to-
(a) the upbringing of a child; or
(b) the administration of a child's property..
the child's welfare shall be the court's paramount consideration.

Or, as a minimum standard

2. The State's duty, as contained in Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), to ensure that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3 (UNCRC)

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. State parties undertake to ensure the child such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. State parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

and

3. The general duty placed upon authorities under Section 26 of the Children (Northern Ireland) Order 1995:

Section 26 The Children (NI) Order 1995

26 - (1) Every authority looking after a child shall -
(a) safeguard and promote his welfare; and
(b) make use of such services available for children cared for by their own parents as appears to the authority reasonable in the case

(2) Before making any decision with respect to a child whom it is looking after, or proposing to look after, an authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of -
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental responsibility for him; and
(d) any other persons whose wishes and feelings the authority considers to be relevant,
regarding the matter to be decided.

(3) In making any such decision an authority shall give due consideration-
(a) having regard to his age and understanding, to such wishes and feelings of the child as the authority has been able to ascertain;
(b) to such wishes and feeling of any person mentioned in paragraph (2)(b) to (d) as the authority has been able to ascertain; and
(c) to the child's religious persuasion, racial origin and cultural and linguistic background.

(4) If it appears to an authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise its powers with respect to a child whom it is looking after in a manner, which may not be consistent with its duties under this Article, the authority may do so.

(5) If the Department considers it necessary, for the purpose of protecting members of the public from serious injury, to give directions to an authority with respect to the exercise of the authority's powers with respect to a child whom it is looking after, the Department may give such directions to the authority.

(6) Where any such directions are given to the authority, it shall comply with them even though doing so is inconsistent with its duties under this Article.

2.2 New Clause 15(1)

In light of the above-mentioned legislation we recommend that that clause 15(1) be amended to incorporate Sections 3 and 26 of the Children (NI) Order 1995 and should read as follows:

'Duty on Boards of Governors to Safeguard and promote the best interests of pupils

15 - (1) It shall be the duty of the Board of Governors of a grant aided school to safeguard and promote the best interests of registered pupils at the school as a paramount consideration at all times when such pupils are-

(a) on the premises of the school;

(b) or in the lawful control or charge of a member of the staff of the school.

(2) Before making any decision with respect to a child within it's lawful control or charge the Board of Governors shall, so far as is reasonably practicable, ascertain the wishes and feelings of -

(a) the child;

(b) his parents;

(c) any person who is not a parent of his but who has parental responsibility for him; and

(d) any other persons whose wishes and feelings the Board of Governors considers to be relevant, regarding the matter to be decided.

(3) In making any such decision a Board of Governors shall give due consideration-

(a) having regard to his age and understanding, to such wishes and feelings of the child as the Board of Governors has been able to ascertain;

(b) to such wishes and feeling of any person mentioned in paragraph (2)(b) to (d) as the Board of Governors has been able to ascertain; and

(c) to the child's religious persuasion, racial origin and cultural and linguistic background.

(4) If it appears to the Board of Governors that it is necessary, for the purpose of protecting other registered pupils, members of school staff or members of the public from serious injury, to exercise its powers with respect to a child whom it is looking after in a manner which may not be consistent with its duties under this Article, the authority may do so.

(5) If the Department considers it necessary, for the purpose of protecting other registered pupils, members of school staff or members of the public from serious injury, to give directions to the Board of Governors with respect to the exercise of the Board of Governors powers with respect to a child within it's lawful control or charge, the Department may give such directions to the authority.

(6) Where any such directions are given by the Department to the Board of Governors, it shall comply with them even though doing so is inconsistent with its duties under this Article'.

2.3 Proposals for amendment to Clause 15(2)

The draft Bill distinguishes between pupils attending grant-aided schools and those attending as boarders in voluntary schools. The Bill suggests that boarding pupils do not require additional protection as corresponding provision is made under Article 176(1) of the Children (NI) Order 1995:

Article 176(1) The Children (NI) Order 1995

176 - (1) It shall be the duty of the managers of any school, which provides accommodation for any child to safeguard and promote the child's welfare

2.4 New Clause 15(2)

Here, we would recommend that the Board of Governors duty (in relation to pupils for whom accommodation is provided in a voluntary school) should also be redefined in order to reflect the best interests principle contained within Article 3 of the Children (NI) Order 1995 and accordingly Clause 15(2) of the draft Bill should be amended, (and Section 176(1) the Children (NI) Order 1995 be repealed), to state as follows:

'15(7) Subsection (1) - (6) also apply in relation to pupils for whom accommodation is provided by the Board of Governors of a voluntary school'.

2.5 Proposals for amendment to clause 15(3)

The text of Article 101 of the Education and Libraries (NI) Order 1986, (as substituted by Article 158 of the Education Reform (NI) Order 1989), empowers the Department 'to give directions to any relevant authority as to the exercise of that authority of any power conferred, or the performance of any duty imposed, on that authority by or under any provision of the Education Orders'.

2.6 New clause 15(3)

If clause 15(2) of the draft Bill is amended as proposed above, to place a stronger duty than that provided under Section 176(1) of the Children (NI) Order 1995 upon the Board of Governors in relation to pupils for whom accommodation is provided in a voluntary school, then clause 15(3) should also be amended to read as follows:

'15(8) Article 101 of the 1986 Order (directions by Department as to performance of duties imposed by or under the Education Orders) shall apply in relation to the duties imposed upon a Board of Governors of a voluntary school by subsection (7) above, in respect of pupils for whom accommodation is provided in a voluntary school, as it applies in relation to duties imposed on such a Board of Governors by or under any provision of the Education Orders'.

2.7 Clause 16 - Child Protection Measures

It is clear from paragraph 7 D of the Explanatory and Financial Memorandum accompanying the Education and Libraries Bill that the purpose of this new provision is 'to have a written child protection policy which complies with current guidance from the Department'.

The Children's Law Centre welcomes the introduction of a statutory duty upon a Board of Governors of a grant-aided school to have a written child protection policy, however it is felt that any provision made should be extended to include the following:

1. A duty to consult with the registered pupils at the school and their parents/carers in relation to the determination of the school's child protection policy, procedures and the measures to be taken at a school

2. A duty to conduct an annual review of the determined child protection policy, procedures and the measures to be taken at a school

3. A duty to consult annually with the registered pupils at the school and their parents/carers as part of the process of an annual review of the child protection policy, procedures and the measures to be taken at a school

4. A duty to publish the child protection policy, procedures and measures to be taken by the school to all registered pupils at the school in a format which is appropriate the pupil's age and understanding (as well as to the parents of all registered pupils at the school).

It is in keeping with Article 12 of the United Nations Convention on the Rights of the Child that the registered pupils at a school be informed and afforded the right to express their opinions freely and to have their opinions taken into account in any matter or procedure affecting them (at their school).

Article 12 UNCRC

1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.8 New Clause 16(1)

In order to incorporate the principle of participation enshrined in Article 12 UNCRC and to reflect the necessity for continuous review of the child protection policy, the procedures and measures adopted by a school once a policy is determined, we would recommend the following amendments to the draft Bill:

• At 16(1)(a) - delete 'from time to time review' and insert in its place ' to carry out an annual review of the policy, the procedures and measures to be taken at the school..'
• At 16(1)(b) - delete 'in determining or reviewing those measures' and amend to read 'in determining or reviewing the policy, the procedures and measures to be taken at the school to have regard.'
• Between 16(1)(b) & (c) to insert an additional clause as follows:

'to consult with the registered pupils at the school and their parents/carers in relation to the determination and all subsequent annual reviews of the school's child protection policy, the procedures and measures to be taken at the school'.

• To amend 16(1)(c )(i) to read as follows:

'a copy of that statement is given (free of charge) to all registered pupils at the school in a format which is appropriate the pupil's age and understanding and to the parents of all registered pupils at the school; and'

2.9 Clause 17 - School discipline measures to prevent bullying

Paragraph 7 D of the Explanatory and Financial Memorandum accompanying the draft Education and Libraries Bill provides that the aim of this new provision is 'to require schools to have a written anti-bullying policy which complies with current guidance from the Department'.

The existing legislation in Northern Ireland governing the area of school discipline is Article 3 of the Education (NI) Order 1998, which deals with the responsibility of Board's of Governors and principals for discipline in schools. The draft Bill proposes to amend this legislation to make specific reference to the issue of bullying in schools:

• It aims to involve parents and pupils in consultation prior to the determination and review of the statement of general principals concerning discipline
• It proposes to incorporate into the scheme of management a duty upon the principal of every grant-aided school

'to determine measures (which may include the making of rules and provision for enforcing them) to be taken with a view to.encouraging good behaviour and respect for others on the part of pupils and, in particular, preventing all forms of bullying among pupils'

• Also it proposes a further duty upon the principal to consult with the registered pupils and the parents of those pupils prior to determining such measures.

2.10 Comparative English Legislation -The School Standards and Frameworks Act 1998

In England there is existing legislation, which places certain clear responsibilities upon the governing bodies and head teachers of maintained schools to promote discipline in schools. It is clear from existing Northern Ireland legislation, specifically under Article 3(1) of the Education (NI) Order 1998 and also the amendments proposed under the Education and Libraries Bill that the Department have been influenced by the provision made in England under the School Standards and Frameworks Act 1998.

In England, section 61 of the School Standards and Frameworks Act 1998(SSFA) is the underpinning statutory provision determining the roles and responsibilities for governing bodies and head teachers of maintained schools:

(a) Responsibilities of the governing bodies of Maintained schools:

1. That the governing body of a maintained school must ensure that the school follows policies, which are designed to promote good behaviour and discipline by pupils within the school. (Section 61(1)).

The Board of Governors of a grant-maintained school are already placed under this same duty in Northern Ireland, by provision of Article 3(1) of the Education (NI) Order 1998.

2. The governing body must draw up and periodically review a written statement of general principles to which the head teacher must have proper regard, in formulating detailed measures for securing proper discipline. (Section 61(2)(a)). In other words, policy-making is not sufficient and governing bodies must ensure that policy implementation is constantly under review.

The Board of Governors of a grant-maintained school are already placed under this same duty in Northern Ireland, by provision of Article 3(2)(a) of the Education (NI) Order 1998.

3. The governing body may notify the head teacher of any particular measures that it thinks desirable; and the governing body may also provide specific guidance to the head teacher on disciplinary matters, where they consider this appropriate. (Section 61(2)(b)).

This same duty is provided under Article 3(c) of the Education (NI) Order 1998.

4. The governing body does not have an entirely free hand in drafting the written statement of principles. It must have regard to any Guidance given by the Secretary of State in England.

Again this duty is mirrored by provision made under Article 2(b)(ii) of the Education (NI) Order 1998, which requires the Board of Governors to consider any guidance issued by the Department and (in the case of Catholic Maintained Schools) guidance issued by CCMS.

5. Before drafting or revising the statement of general principles, the governing body must consult with the head teacher and parents of pupils registered at the school. (Section 61(3)).

The same duty to consult with the principal and parents of registered pupils is placed upon the Boards of Governors under Article 2(b)(i) of the Education (NI) Order 1998.

The Children's Law Centre welcomes the amendment proposed under the Education and Libraries Bill is to place a further onus on the Board of Governors to consult with the registered pupils at the school as well as their parents. This is in keeping with the principle of participation enshrined under Article 12 UNCRC and from a children's rights perspective it is a welcome addition to legislation this area.

(a) Responsibilities of the head teachers for maintaining discipline at schools

The head teacher is required under Section 61(4) of the School Standards and Frameworks Act 1998, to determine measures (which may include the making of rules and sanctions) to be taken with a view to-

i. Promoting among pupils self-discipline and proper regard for authority;

ii. Encouraging good behaviour and respect for others on the part of pupils and, in particular, preventing all forms of bullying among pupils;

iii. Securing that the standard of behaviour among pupils is acceptable; and

iv. Otherwise regulating the conduct of pupils.

One of the principle proposals under the Education and Libraries Bill is to amend Article 3(3)(a)(ii) to incorporate a specific duty upon Principals to 'prevent all forms of bullying among pupils'. The wording for the proposed amendment has been taken directly from Section 61(4) of the School Standards and Frameworks Act 1998.

2.11 Proposals for amendment to Clause 17

(a) Amendment to definition of bullying behaviour

It is recommended that the proposed amendment under the Education and Libraries Bill to incorporate a specific duty upon Principals to 'prevent all forms of bullying among pupils' should be reworded to extend the definition of bullying and include different types of bullying behaviour.

Examples of bullying behaviour may be influenced by the categories included in the equality provision under Section 75 of the Northern Ireland Act 1998 and Article 14, the non-discrimination clause of the European Convention on Human Rights (ECHR). Accordingly, the clause should read as follows:

2.12 New Clause 17(3)

'and, in particular, preventing all forms of bullying among pupils, for example, bullying on the grounds of differing religious belief, political or other opinion, national or social origin, association with a national minority, race, colour, language, sexual orientation, age, sex, disability, property, birth, school age pregnancy or school age motherhood or on any other ground'.

2.13 (b) Amendment to the duty upon the principal conveyed under Article 3(3)(a) of the Education (NI) Order 1998

It is recommended that Clause 17(3) also introduce a rewording of Article 3(3)(a) to strengthen the principals duties as follows:

Where it currently states:

'The scheme of management for every grant -aided school shall provide for it to be the duty of the principal -
(a) to determine measures (which may include the making of rules and provision for enforcing them) to be taken with a view to -.'

2.14 New Clause 17(3)

It is recommended that the word 'may' shall be deleted and substituted with the word 'shall'.

2.15 (c) Development of a whole school strategy

The Children's Law Centre welcome the Department's decision to incorporate a specific duty upon principals to prevent bullying behaviour as part of the school discipline strategy. However, we would recommend that awareness in relation to the issue of bullying be promoted on a whole school basis. It is further recommended that strategies and measures to counter bullying behaviour and the effects of bullying upon the victim, be incorporated not only in the school discipline policy but also the child protection policy and the pastoral care policy so that all teachers and other school staff are aware of the procedures to be adopted if they believe that a child is at risk from bullying behaviour. We would welcome an amendment to clause 17 to include an additional subsection to this effect:

2.16 New Clause 17(5):

The scheme of management for every grant-aided school shall provide for it to be the duty of the principal -

'To ensure that strategies and measures to counter bullying behaviour and the effects of bullying upon the victim, be incorporated not only in the school discipline policy but also the child protection policy and the pastoral care policy so that all teachers and other school staff are aware of the procedures to be adopted if they believe that a child is at risk from bullying behaviour'.

2.17 (d) The right of registered pupils to be consulted and publication of the school policy to registered pupils at the school

(ii) Consultation

The Children's Law Centre very much welcomes the Department's decision to incorporate into Article 3 of the Education (NI) Order 1998 a specific duty on the principal 'to consult with the registered pupils at the school and the parents of those pupils' before determining the measures to be taken by a school in relation to discipline, including countering bullying behaviour.

Again the type of consultation proposed is in keeping with the international standards set under Article 12 UNCRC to ensure that the views of the child are taken into account in any matters or procedures concerning the child.

(iii) Publication

In England, the measures determined by the head teacher under Section 61(4) of the School Standards and Frameworks Act 1998 must be published in a written document and must be made known within the school and to parents of registered pupils at the school. The principal is also under a duty, at least once in every school year, to take steps to bring the measures contained within the document to the attention of all pupils, parents and to all persons employed, or otherwise engaged to provide their services, at the school. (Section 61(7)).

DfEE Guidance in England stresses that the problem of bullying must be treated as a whole school issue. It is clear that a universally agreed and unified approach must be taken by all parties within the school community in order to effectively tackle the issue of bullying. The need for such an approach is reiterated under Departmental guidance in England as follows:

"Head teachers have a legal duty to take measures to prevent all forms of bullying among pupils. All teaching and non-teaching staff, including lunchtime supervisors, should be alert to signs of bullying and act promptly and fairly"ⁱ.

In Northern Ireland, a principal of a grant-aided school is not required to take steps to promote awareness of the school disciplinary code among pupils, parents and employees of the school on an annual basis. Once the written statement has been given to the parents of all registered pupils at the schoolⁱⁱ the principal is merely required to arrange for documentation to be available for inspection at the school.

2.18 The Children's Law Centre recommend that Clause 17 be amended to include an additional subsection, that would amend Article 3(3)(c) of the Education (NI) Order 1998 and read as follows:

New Clause 17(6)

The scheme of management for every grant-aided school shall provide for it to be the duty of the principal -

'To publish a written statement of such measures and to secure that

(i) a copy of that statement must be made known within the school and given (free of charge) to all of the registered pupils at the school and the parents of those pupils

(ii) at least once in every school year, steps are taken to bring the measures contained within the document to the attention of all pupils, parents and to all persons employed, or otherwise engaged to provide their services, at the school

(iii) copies of the statement are available for inspection (at all reasonable times and free of charge) at the school'.

2.19 (e) Introduction of a reserve power to the Education and Library Boards in Northern Ireland to prevent a breakdown in discipline at a school

The legal position in England

Under Section 62 of the Standards and Frameworks Act 1998, a Local Educational Authority has wide discretionary powers to intervene in the drawing up or reviewing of the statement of general principals for a school. The legislation enables the authority to function like the governing body, in recommending particular disciplinary measures to the head teacher of a school, or offering particular guidance, as the authority would deem appropriate.

Such power is reserved for circumstances where, in the opinion of the authority, the behaviour or actions taken by pupils or their parents has already, or is likely in the immediate future, to severely prejudice the education of any registered pupils at the school. (Section 62(2)).

The Local Educational Authority must first serve a warning notice on the governing body, referring to any threats to safety of pupils or staff it perceives, due to a breakdown in discipline at the school. (Section 62(3)(a)).

If the governing body fail to comply, or secure compliance with the terms of the notice within a stipulated period, the authority may then exercise its reserve powers. The legislation does not specify the extent of the authorities powers of intervention, however, it is clear that the authority may give any direction to the governing body or head teacher of a school. (Section 62(4)).

In England, it is possible that such powers may be exercised by a local authority, as a matter of discretion, where a child, group of children or members of staff are being bullied in school. The authority would need to be satisfied that a pupil's right to education is likely to be severely prejudiced or that there is a threat to the safety of pupils or staff, due to a breakdown in discipline at the school. Such circumstances may be encountered in more serious incidents of bullying. The authority will only exercise its reserve powers where it finds that the head teacher and governing body have not acted effectively to counter bullying behaviour.

In Northern Ireland, there is no reference in legislation to a discretionary power by the Education and Library Boards to intercede where a breakdown in school discipline occurs. This may indicate that the remedies available to a pupil, or parent whose pupil is the victim of bullying in a school in Northern Ireland are significantly diminished from those of their counterparts in England. Currently, there is no formal procedure for investigation of a complaint of bullying by the Education and Library Boards and our legislation should be amended to make such proviso.

2.20 It is recommended that a new subsection be introduced under the Education and Libraries Bill as 'clause 17(7)' incorporating the same provision as is currently in existence in England under section 62 of the Standards and Frameworks Act 1998 and conveying the same discretionary powers upon the Education and Library Boards in Northern Ireland to intervene and offer guidance and directions to principals and Boards of Governors of grant-aided schools in situations where the principal and governing body have not acted effectively to counter bullying behaviour.

2.21 New Clause 17(7) should read as follows:

'17(7)(1) The Education and Library Board responsible for a school within its area, may, in the circumstances mentioned in subsection (2) or where subsection (3) applies, take such steps in relation to a grant-aided school as they consider are required to prevent the breakdown, or continuing breakdown, of discipline at a school.

(2) The circumstances are that -

(a) in the opinion of the Education and Library Board responsible for a school within its area-

(i) the behaviour of registered pupils at the school; or

(ii) any action taken by such pupils or their parents,

is such that the education of any registered pupils at the school is (or is likely in the immediate future to become) severely prejudiced; and

(b) the Board of Governors have been informed in writing of the authority's opinion.

(3) This subsection applies where -

(a) a warning notice has been given referring to the safety of pupils or staff at the school being threatened by a breakdown of discipline at the schoolⁱⁱⁱ;

(b) the Board of Governors have failed to comply, or secure compliance, with the notice to the Education and Library Board's satisfaction within the compliance period; and

(c) the Education and Library Board have given reasonable notice in writing to the Board of Governors that they propose to exercise their powers under subsection (1) of this section.^iv

(4) Steps taken by an Education and Library Board under subsection (1) may include the giving of any direction to the Board of Governors or principal of the school'.

2.22 (f) Introduction of a Departmental duty to monitor the effectiveness of anti-bullying measures adopted by grant-aided schools

Finally, it is recommended that a new subsection be included in the Education and Libraries Bill as 'clause 17(8)' introducing a new duty upon the Department of Education to set up a research and evaluation project to monitor the effectiveness of anti-bullying measures adopted by grant-aided schools.

All grant-aided schools should be required to report to the Department documenting the nature, type and frequency of bullying behaviour at the school, measures taken by the school and an assessment of their effectiveness in countering bullying behaviour. The documentation should include a report completed by the principal agreed and signed by the Chairperson or a representative of the Board of Governors of the school; a statement from the pupil alleging the bullying behaviour; a statement from the parents of the pupil and any other relevant parties.

It is intended that once the Department of Education have been able to collate and analyse such information that they shall be able to utilise their findings in the publication of future Departmental guidance on bullying for schools, future regulations and legislation in this field.

2.23 New Clause 17(8)

'(1) The Department of Education monitor the effectiveness of anti-bullying measures adopted by grant-aided schools

(2) All grant-aided schools shall report to the Department documenting the nature, type and frequency of bullying behaviour at the school, measures taken by the school and an assessment of their effectiveness in countering bullying behaviour'.

Explanatory Note:

The documentation should include a report completed by the principal agreed and signed by the Chairperson or a representative of the Board of Governors of the school; a statement from the pupil alleging the bullying behaviour; a statement from the parents of the pupil and any other relevant parties'.

2.24 Clause 23 - Appeals against expulsion: tribunal procedures

Paragraph 7 B of the Explanatory and Financial Memorandum accompanying the draft Education and Libraries Bill deals with clauses proposed in the Education and Libraries Bill, which are aimed to 'improve the operation of certain elements of the education system for the benefit of pupils/parents/ELB's/Department'.

The amendment proposed by the Bill in respect of the expulsion tribunal procedures aims to allow school expulsion appeal panels, in considering an appeal, to have regard to matters specified in the regulations ^v Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1985

Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995

Schools (Suspension and Expulsion of Pupils) (Amendment)(NI) Regulations 1998

Schools (Expulsion of Pupils)(Appeals Tribunals) Regulations (NI) 1994

Schools (Expulsion of Pupils)(Appeals Tribunals) (Amendment) Regulations (NI) 1998

and to enable the tribunals, where appropriate to sit in private.

The Children's Law Centre will endorse both of the amendments proposed under the Education and Libraries Bill, and in the interest of promoting children's rights in education, would also like to propose some additional amendments to expulsion appeal tribunal procedures, which could be introduced under clause 23, as follows:

(a) Time-Limits for appeals against expulsion:

In England, the right of appeal against expulsion is detailed in the Standards and Frameworks Act 1998, (sections 66-68 and Schedule 18). The legislation imposes strict time-limits in respect of expulsion appeal procedures as follows:

• The pupil discipline committee is required to meet the appellant within 15 days of a principal's decision to permanently exclude a pupil or to exclude them for a fixed period of more than 15 days
• The appellant has 15 school days from the date of notification of the decision within which to bring an appeal
• The appeal must be brought by notice in writing, setting out the grounds of appeal.
• Similarly, the appeal panel must meet with the appellant within 15 days of the appeal against permanent exclusion being lodged.

The panel are entitled to adjourn an appeal hearing under new regulations^vi. This may be relevant where a separate criminal investigation is ongoing in connection with the incident.

In Northern Ireland, the current regulations in respect of time-limits for the hearing and determination of appeals are contained within Schedule 2, Regulation 4(8) of the Schools (Expulsion of Pupils) (Appeal Tribunals) Regulations (NI) 1994 and state as follows:

"The Board shall set time-limits for the hearing and determination of appeals and in setting those limits shall have regard to the need to secure that appeals are disposed of without delay"

2.25 Proposed Amendment to Clause 23

It is our recommendation that specific and transparent time limits need to be set in order to ensure that no delays in procedure are permitted in the future.

We further recommend that the Department introduce similar statutory regulations in Northern Ireland to those currently existing under sections 66-68 and Schedule 18 of the Standards and Frameworks Act 1998, to ensure that the expulsion appeal process is treated with expediency by all of the parties concerned.

2.26 New Clause 23(2)

We recommend that a new subsection be introduced as Clause 23(2) to read as follows:

'23(2)(a) The pupil and the parent of the pupil must be invited to attend a meeting for consultation to take place between the principal, the Chief Executive of the Board or another officer of the board duly authorised by him and the Chairman of the Board of Governors and in the case of a Catholic maintained school the Director of CCMS or another officer of CCMS duly authorised by him, and such meeting must take place within 15 days of a principal's decision to expel a pupil or to exclude them for a fixed period of more than 15 days, provided that neglect or refusal on the part of the pupil or the parent to take part in such consultations shall not prevent a pupil being expelled from the school;'

(b) The appellant has 10 school days from the date of notification of the decision to expel, within which to bring an appeal;

(c) The appeal must be brought by notice in writing, setting out the grounds of appeal;

(d) The Expulsion Appeal Tribunal must meet with the appellant for a hearing within 15 days of the appeal against expulsion being lodged;

(e) The tribunal are entitled to adjourn an appeal hearing in circumstances where a separate criminal investigation is ongoing in connection with the incident'.

2.27 b) Application of the child's right to participation, as contained in Article 12 of the United Nations Convention on the rights of the Child, to expulsion appeal procedures

In its second report to the United Nations Committee, in 1999, the UK Government addressed the issue of children's participation in expulsion procedures. The government acknowledged that it might be appropriate for older children to address an expulsion appeal panel about his/her expulsion from school. Allowing a child the right to have their voice heard is also conducive to the principles of natural justice, under our common law.

The law relating to suspension and exclusion procedures in Northern Ireland does not allow children^vii any participatory rights in the consultation and decision making process. Nor are they provided the right to make their own representations or to be separately represented at an Expulsion Appeal Tribunal hearing.

This may present difficulties for a child who wishes to challenge an expulsion but is not supported by his/her parents in such action; or whose parents are not competent to make representations on their child's behalf.

2.28 Second Proposed Amendment to Clause 23

It is recommended as follows:

(a) That current legislation is amended to ensure that children have a statutory right to attend all meetings and hearings relating to a decision to suspend or expel them from school, subject to their own discretion.

(b) The principle of participation, contained in Article 12 of the United Nation's Convention on the rights of a child to should be applied in all stages of the suspension and expulsion process.

(c) It may often be the case that if a child decides to attend any meetings or appeal hearings to make their own representations, that his/her parents shall accompany them to the meeting. However, if a child's parents are not agreeable to attend; or are not competent to make representations on their child's behalf, it is appropriate that the child be entitled to have a responsible adult in attendance with them. This person should also be allowed to make representations to the meeting, where necessary, on the child's behalf.

(d) It is recommended that current legislation be amended to allow children (under 18 years) a separate right of appeal against a decision to expel them from school.

(e) It is further recommended that legislation be amended to grant children the right to have separate representation in expulsion appeal tribunals.

(f) The Department should also consider extending the remit of the Special Educational Needs Tribunal to allow it to hear expulsion appeals in respect of children with special educational needs. This should include all children who are in receipt of a statement of Special Educational Needs and those who have been referred for assessment under the Code of Practice.

2.29 New Clause 23(3)

We recommend that a new subsection be introduced as Clause 23(3) to introduce such procedural amendments. It shall be necessary to amend both primary legislation and the regulations governing Expulsion Appeal Tribunals in order to effect procedural change:

2.30 Proposed amendment to primary legislation

Article 49(10) of the Education and Libraries (NI) Order 1986, (as substituted by Article 39 of the Education and Libraries (NI) Order 1993), places a duty upon the Department to provide regulations as to the constitution and procedure of Expulsion Appeal Tribunals).

It is proposed that after sub paragraph (d) an additional clause shall be inserted, thereby placing a further duty upon the Department to ensure that such regulations -

'e) may provide for the separate legal representation of children at appeal tribunals'

2.31 Proposed amendments to regulations

The child's right of participation in the suspension and expulsion process

In order to secure compliance with Article 12 of the UNCRC we believe the following statutory amendments are required in relation to the scheme for suspensions and expulsions relating to grant-aided schools:

We propose therefore the amendment of Article 3 of the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 to read as follows:

2.32 Proposed amendment to regulations 3(d)(i)&(ii)

' 3 (d) where a pupil has been expelled from the school the principal shall immediately -

(i) give written notification of the reasons for the suspension and the period of the suspension to the pupil and to the parent of that pupil, to the board and to the Chairman of the Board of Governors and, in the case of a pupil suspended from a Catholic Maintained school, to the local diocesan office of CCMS; and

(ii) invite the pupil and the parent of the pupil to visit the school to discuss the suspension;'

2.33 Proposed amendment to regulation 3(e)

'3(e) the principal shall not extend a period of suspension except with the prior approval of the Chairman of the Board of Governors and shall in every case give written notification of the reasons for the extension and the period of extension to the pupil and to the parent of the pupil, to the board and, in the case of a pupil suspended from a Catholic Maintained school, to the local diocesan office of CCMS;'

2.34 Proposed amendment to regulation 3(g)

'3(g) a pupil may be expelled from school only after consultation about his expulsion has taken place between the principal, the pupil, the parent of the pupil, the Chief Executive of the board or another officer of the board duly authorised by him and the Chairman of the Board of Governors and in the case of a Catholic Maintained school the Director of CCMS or another officer of CCMS duly authorised by him, provided that any neglect or refusal on the part of the pupil or on the part of the parent to take part in such consultations shall not prevent a pupil being expelled from school'

2.35 The child's right to appeal against a decision to expel

In relation to the right of appeal itself, this right of appeal should be available to children who have "sufficient understanding". The phrase "sufficient understanding" is used in the Children (NI) Order 1995, in the context of court applications by children and young people.

In order to secure compliance with 12 of the UNCRC we believe the following statutory amendments are required, in relation to the school expulsions appeal procedure:

We propose therefore the amendment of Article 3(i) of the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 to read as follows:

2.36 Proposed amendment to regulation 3(i)

'3(i) where a pupil has been expelled from the school the principal shall immediately give written notification to the pupil and to the parent of that pupil of his right to appeal the decision to expel that pupil, of the time limit set by the board for lodging the appeal and of where the appeal may be lodged'.

Explanatory Notes:

Where the appellant is the child concerned, the Tribunal must be satisfied that the child has "sufficient understanding" to make the application.

If the Tribunal is not satisfied that the child has "sufficient understanding" to make the appeal, the tribunal can require someone with parental responsibility to continue with the appeal on the child's behalf.

2.37 We also recommend that Article 2(2) of the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 be deleted and replaced with the following interpretation and definition clauses:

Proposed amendment to regulations 2(2):

' 2(2) In these regulations -

"child" means child or young person under 18

"parent" means with parent with parental responsibility as defined under Article 5 of The Children (NI) Order 1995

"parental responsibility" has the same meaning as provided under Article 6 of The Children (NI) Order 1995'

2.38 Incorporation of the best interests principle and the participation principle into tribunal procedure

In addition, it is our view that the best interests principle as enshrined in Article 3 UNCRC and the principle of participation as enshrined in Article 12 UNCRC must be incorporated within our education legislation and in particular into all of the legislative provisions relating to Expulsion Appeal Tribunal procedure.

We therefore propose the following amendments to The Schools (Expulsion of Pupils) (Appeal Tribunals) Regulations (NI) 1994, to give effect to these provisions of the UNCRC:

2.39 Proposed amendment to Schedule 2, paragraph 4, to read as follows:

'An appeal tribunal shall give to the child or to an appellant acting on behalf of the child an opportunity to make written representations and an opportunity of appearing and making oral representations and may allow the child and/or the appellant to be accompanied by a friend or advocate or to have separate legal representation'.

Explanatory Note:

In relation to the provision of separate legal representation, we have also made a submission to The Access to Justice Bill indicating that we believe legal aid for representation at Expulsion Appeals Tribunals should be made available.

2.40 Proposed amendment to Schedule 2, paragraph 7 (as substituted by Article 2(c) of the School (Expulsion of Pupils) (Appeal Tribunals) (Amendment) Regulations (NI) 1998)

We recommend that a wider interpretation than is currently provided under paragraph 7, for the grounds to be considered by the Expulsion Appeal Tribunal, is required. We have particular concerns that the grounds for an appeal are construed narrowly by the panel, and are often limited to procedural improprieties, rather than all relevant issues.

Para 7 (c) should read as follows:

'the best interests of the child concerned having regard to his/her ascertainable wishes and feelings'

Para (c) should be moved to paragraph (d)

2.41 Clause 34 - Abolition of corporal punishment

In 1987, corporal punishment was abolished in all grant-aided schools and also in relation to any pupil whose education is funded at any other school by an Education and Library Board. This change in the law followed the decision of the European Court of Human Rights in the case of Campbell and Cosans v United Kingdom^viii and was implemented by the Education (Corporal Punishment) (NI) Order 1987.

Paragraph 7 D of the Explanatory and Financial Memorandum accompanying the draft Education and Libraries Bill states that the aim of this new provision is to repeal existing legislation in order to extend the abolition of corporal punishment to independent schools and to comply with the judgement of the European Court of Human Rights.

The Children's Law Centre commend the Department for the change in law proposed under Clause 34, which shall, upon implementation, finally outlaw the draconian and outdated use of corporal punishment at any 'school, institution or other place at which education is provided' within the Northern Ireland jurisdiction.

We would however propose an amendment to Cause 34(4), as follows:

2.42 New Clause 34(4)

The wording of Clause 34(4) should be amended to correspond with the terminology adopted under Article 4 of the Education (NI) Order 1998, which deals with the powers of a member of staff to restrain pupils in exceptional circumstances. Accordingly, Clause 34(4) should read as follows:

'However, corporal punishment shall not be taken to be given to a child, where a member of the staff has used, in relation to the child, such force as is reasonable in the circumstances for the purpose of preventing the pupil from causing (or continuing to cause) the following, namely-

(a) an immediate danger of personal injury to, or

(b) an immediate danger to the property of,

any person (including the child him/herself)'.

2.43 Future Proposals for Reform of the Law in relation to School Suspensions

The current law in relation to school suspensions provides that a child may be expelled for a period of up to 45 days, yet there are no procedural rights of appeal open to either parent or child against a decision to suspend.

The Children's Law Centre has grave concerns in relation to this matter, from a children's rights perspective, as it would appear to contravene the rights of children to due process and natural justice, under our common law.

We ask the Education Committee to review this issue and to take account of the following recommendations, for future legislative amendments, to reform suspension procedures in Northern Ireland -

(a) Amendment of current legislation to reduce the maximum period of suspension, which may be authorised by a school's Board of Governors to 15 days.

(b) For an independent inquiry panel to be set up by each Education and Library Board, (perhaps with a similar constitution to the Expulsion Appeals Tribunal), to consider the circumstances surrounding a school's decision to suspend a pupil; whether the Board of Governor's intend to invoke expulsion procedures; and the issue of what educational provision is being made to the pupil while they are out of school.

(c) Parents and children should be given the right to appear at the independent inquiry panel hearing and make any representations accordingly.

(d) A school Board of Governor's should only be in a position to suspend a pupil for more than 15 days, where they have attained the approval of the independent inquiry panel to do so. The panel must be satisfied that 'adequate' educational provision is being made to the suspended pupil by the school, for the period while the pupil is out of school.

(e) The panel should be given powers to order reinstatement of a child to school, where the suspension is found to be unlawful.

(f) If it is clear from the panel's investigations and enquiry that a pupil is not receiving adequate educational provision from a school, they should either:

(i) Direct the school to comply with regulations, immediately and ensure that suitable arrangements are made;

(ii) Or, where it is clear that the school has already decided to invoke expulsion procedures and has effectively "washed their hands" of the pupil, to refer the child immediately to the Education Welfare Service so that the Education and Library Board may make alternative arrangements for educational provision, pending resolution of the matter.

2.44 Proposed amendment to regulations

We would suggest the amendment of Regulation 3 of the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 (as amended by Article 2 of the Schools (Suspension and Expulsion of Pupils) (Amendment) Regulations (NI) 1998, to read as follows;

'A pupil may be suspended from school for not more than 15 school days in any one year'

We would also recommend the introduction of a right of appeal to an education enquiry panel by way of future legislative reform.

2.45 Future proposal for the introduction of uniform criteria to standardise and regulate suspensions and expulsions in Northern Ireland schools

In England & Wales, DfEE issued new guidance in August 2000 to expulsion appeal panels, regarding the circumstances under which a pupil may be permanently expelled from school.

This guidance recommends that a pupil should not normally be re-instated in school, in circumstances where they have been expelled for the following behaviour:

• Serious actual or threatened violence against a pupil or member of staff
• Sexual abuse
• Presenting a significant risk to the health and safety of other pupils by selling illegal drugs

Persistent and malicious disruptive behaviour including open defiance or refusal to conform with agreed school policies^ix

The aim of this guidance was to strengthen the powers of a Principal in dealing with serious breaches of discipline and also to unify the standard of behaviour expected within schools and the disciplinary approach to be adopted by school authorities.

The National Association of Head Teachers (NAHT) indicated that there are additional behavioural traits in pupils, which constitute severe disruption and therefore may warrant expulsion from schools. These may include serious incidents of bullying, theft or damage to school property, racial and sexual harassment and 'exceptional cases where the attitude of parents was so negative and confrontational as to make it impossible for the school to educate the pupil properly' (NAHT, 2000).

Although every school in Northern Ireland is bound by the legislation and regulations relating to suspensions and expulsions, there is no guidance issued by the Department of Education, indicating the types of behaviour, which may merit an expulsion. Also, as individual schools have their own discipline policies, what is deemed to be acceptable discipline and behaviour may vary widely between different schools.

Both the CCMS 'Scheme for the Suspension and Expulsion of Pupils' and the 'Scheme for the Suspension and Expulsion of Pupils at Board Controlled Schools' stress that expulsion should be applied as a 'last resort measure' or in circumstances where there has been gross misconduct on the pupil's part.

Since 1994, there have been formal Departmental guidelines issued by the DfEE in England and Wales^x, which set out the factors relevant to a decision on expulsion. Factors to be considered by the expelling authority are listed as follows:

• Age
• Health
• Previous disciplinary record
• Domestic circumstances
• Parental/peer influence on behaviour
• Sole party or group activity?
• Frequency of misbehaviour
• Likelihood of repeated behaviour
• Severity of behaviour
• On school premises or whilst in the charge of school staff outside of school (eg on a school trip)
• Whether behaviour will have an adverse impact on the pupil or present a risk to other pupils and/or staff at the school
• The degree to which behaviour was a violation of the school disciplinary policy
• Has consideration been given to seeking support from outside agencies by the school?
• Has consideration been given to the future education of the pupil, should s/he be expelled from school?

We ask the Education Committee to review this issue and to take account of the following recommendations:

The Children's Law Centre recommend that the Department of Education for Northern Ireland should introduce uniform criteria to standardise and regulate the types of behaviour, which shall be considered to warrant suspension and expulsion procedures being invoked in Northern Ireland schools.

It is further recommended that such criteria be given statutory footing, in order to ensure compliance by all grant-aided schools.

In 1997, it was recommended in the Social Inclusion Unit's Report^xi that the English guidance should be given statutory footing. This has not been observed in England and Wales, to date. However, the Department of Education in Northern Ireland may wish to take a lead on this issue.

COMMITTEE STAGE OF THE EDUCATION AND LIBRARIES BILL

written submission by:
Council for Catholic Maintained Schools

Introduction

The Council in its response has confined its comments to specific articles.

Part I

The Council as a long term advocate of a common funding process welcomes the proposal to introduce legislation introducing a Common Formula.

With regard to Clause 5 and to "Publication of Financial Statements", there is merit in extending this article to facilitate bodies like CCMS in accessing data regarding the ongoing profile of expenditure in Catholic Maintained Schools. Such information would allow all employing authorities to make informed management decisions regarding issues such as staffing.

Part II
Boards: Finance and the Duty of Best Value

As one of the major "customers" for board services, the Council welcomes the development of a culture of best value and the enshrining of same within legislation.

Part III
Schools.

Duty on Boards of Governors to Safeguard and Promote the Welfare of Pupils

Clause 15 - Paragraphs (1), (2) and (3)

Council would agree with the proposed statutes to further enhance the safety and welfare of pupils in all schools.

Child Protection Measures

Clause 16 - Paragraphs (1) and (2)

Council welcomes the introduction of statutory obligations on Boards of Governors to review policies, procedures and written statements of all measures which are in place to protect pupils in all schools. However, the inclusion of the term "or elsewhere" needs clarification - as it stands it is too vague and may well result in litigation.

School Discipline Measures to Prevent Bullying

Clause 17 - Paragraph (2)

In welcoming the proposed statute to extend the scope of consultation on general principles of school discipline to include pupils, Council would stress that it is imperative to have regard to the age and maturity level of pupils (from pre-school/nursery to end of Key Stage 4) in constructing a consultative mechanism.

Clause 17 - Paragraph (3)

Council is concerned with the clause to be added to the duties of Principals in (3) (a) (ii) namely "and, in particular, preventing all forms of bullying among pupils".

This would suggest that schools and Principals in particular can take measures to ameliorate societal breakdown by preventing all forms of bullying. It is widely acknowledged that bullying can take many forms, not all of which can be addressed in the school, consequently a more appropriate statute would be to focus upon and identify the patterns of behaviour which can be addressed and secondly develop strategies, mechanisms and procedures to address such behaviours. To legislate that all forms of bullying should be prevented by Principals is not deliverable.

Clause 17 - Paragraph (4)

Council welcomes the proposals to extend the scope of consultation and again exhorts that cognisance of the age and level of maturity of pupils be taken when devising consultative mechanisms.

Parental Preferences for Admission to Nursery Schools

We acknowledge the rationale for moving to a preference based admissions system but would comment as follows:

(a) In excess of 40% of funded pre-school provision will be in the non-statutory sector and the absence of a preference system for that sector in respect of admissions will create imbalances and operational difficulties for the admissions procedures in the statutory sector

(b) The role of Boards of Governors in respect of drawing up and applying an admissions criteria for their school must remain unaffected.

Removal of Members of Boards of Governors

Clause 21

This is an important provision. The Council itself has used a variation on this process to expedite change to the composition of a Board of Governors in circumstances where it considered that the needs of the school merited such action. That said, the Council has some reservations in respect of the proposals.

Within the Catholic Maintained sector, the role of Trustees as enshrined in Schedule 5 of the 1989 Order ensures that the ethos of the school is protected. This role lies at the heart of Trusteeship and it is unclear as to how the proposals of Clause 21, paragraphs (1) to (3) will impact on this.

For example, the provision within Clause 21 (2)b would appear to allow for the appointment of an "administrator" or an administrative group to assume the role of Governors. Once again this raises significant issues as to ethos and culture. It would be inappropriate for this duty to be discharged without consultation with Trustees of a school and both the Boards and CCMS.

Rather than relying on the designation of a timeframe, the legislation should prescribe that any interim arrangements should cease to be in effect when 40% of a new Board of Governors has been nominated.

Clause 21 - Paragraph (3)a

This wording should be amended to read:

"to consult the Board and, in the case of a Catholic Maintained School, the Council for Catholic Maintained Schools, and such bodies and person as might be prescribed".

Development Proposals for Grant-Aided Schools

Clause 22

The Council supports the principle of inclusive consultation and to that end endorses Clause 22(5).

However, CCMS does have reservations in respect of Clause 22(5)a which would, as it stands, result in the Board duplicating, in respect of Maintained Schools, the consultation process as set out in Clause 22(5). This has the potential to cause a degree of confusion if not dissension.

Consultation of Schools by Sampling

Clause 25 - Paragraph (2)

The Council is supportive of the use of samples that affected school, rather than all schools but would add:

(a) 4(A) after "selected by Department", the words "after consultation with the relevant school authority eg ELB, CCMS, NICIE, Comhairle Na Gaelscolaiochta and the GBA".

Costs under Approved Contracts

Clause 26

The Council has received advice to the effect that the clause, in its present form, does not in fact go far enough in addressing the issue of payment in that it only refers to sums due "during the term of the contract or on its termination".

Although the contract may well have been terminated, there are clauses in existing project contracts which will continue to impose obligations upon Trustees or others and indeed, it may well be that sums will be due subsequent to termination. In light of this, this clause needs to be reconsidered.

Provision of Secondary Education for Pupils by Institutions of Further Education

Clause 32

The Council recognises the rationale behind the amendment but would ask what legislative basis exists for the education of children in institutions other than a grant-aided school or an Institute of Further & Higher Education, ie EOTAS provision or Training establishments.

Abolition of Corporal Punishment

Clause 34 - Paragraphs (1), (2) and (3)

Council endorses the proposed statutes on the abolition of corporal punishment.

Clause 34 - Paragraphs (4) and (5)

Council welcomes the statute which reinforces the guidance on restraint in Circular 1999/9 in legislation, thus ensuring all staff can take appropriate action to restrain pupils or prevent them from self harm.

Conclusions

The Council would suggest that consideration should be given to two further issues, namely:

(a) the lower age limit for admissions to a pre-school location

(b) the treatment of statemented pupils in terms of school admissions numbers.

Both of these issues have been drawn to the Council's attention by Principals who have encountered practical difficulties in respect of each.

Nursery School Admissions

The current arrangements allow for the enrolment of children of two years of age. This presents difficulties in terms of:

(a) the socialisation and education of children who are often very immature

(b) such children having gained access may preclude entry to other, older children.

Statemented Pupils and Enrolment Numbers

The Council fully supports the notion that statemented pupils should be advantaged in securing appropriate provision and recognises that this requires that they may be deemed supernumerary to admissions numbers/enrolment numbers. However, this should apply only for the year of entry. Thereafter arrangements similar to those in place for pupils who enter on the basis of appeals should be put in place.

committee stage of the education and libraries bill

written submission by:
Governing Bodies' Association (NI)

ISSUES RAISED BY THE GOVERNING BODIES' ASSOCIATiON (not just specific to our schools, but schools, teachers and governors generally)

(i) The timing is totally unacceptable with the "Bill" having been received at the end of June when the school holidays commenced.

(ii) It was regretted that informal discussions were not held before publication. In the past such a step was beneficial to all parties.

(iii) Clause 21

The proposed powers taken by the Minister and his Department are dictatorial and may mean the removal of a whole Board of Governors, or indeed certain representative groups who disagree with the Minister or his officials.

(iv) Clause 25

Representative sampling instead of all schools raises the issue of who is in the sample and who determines the sample.

(v) Clause 29

While recognising that it is essential for school Principals to serve on appointments committees in their professional capacity, the appointment to other ELBs is questioned as scarcely appropriate given the size of the Province.

(vi) Clause 35

Clarification is required regarding the amendment in relation to schools.

(vii) Clause 15

Has there not always been a general duty of care on Boards of Governors for the safety and welfare of children in their charge - written or implied?

Commonality of funding

It should be noted at the outset that despite the foregoing comments the Association is committed to equality of funding for all based on the real needs of schools and their pupils.

Clause 1(10)

It is unacceptable that the Department may simply determine whether or not a change in a scheme is significant or otherwise.

Clause 1(12)

The omission of Irish Medium Schools is queried.

The Association has not accepted the transfer of funding to Education & Library Boards. The position of the GBA is on record in the Department. In the past we recommended the creation of a Funding Agency and this continues to be the preferred and logical way forward. No doubt it would be in line with public policy reducing duplication and comply with policies on fairness and transparency.

Clauses 2(6), 2(7) and 2(8)

Preparatory Departments are part of their Schools and to legislate for such a Department/school to receive "substantially less or nil funding" is a gross act of inequality and must be a breach of human rights. Parents of those attending the schools are tax payers. We demand that pupils in such Departments should receive funding equal to that of those in the Primary Integrated sector and the Irish Medium sector where parents choose a particular ethos - in the same way as do parents of pupils in Preparatory Departments.

Clause 6(5)(a)

It seems this could be far reaching ie "Department provides directions?"

Article 55 - who determines either what is financial mismanagement or indeed who defines what circumstances mismanagement takes place.

Article 71 - Payment of teachers employed in voluntary grammar schools. This should be amended to read "and, if a Board of Governors of voluntary grammar schools resolves for the payment of teachers' salaries, allowances and relevant contribution to be made on its behalf".

committee stage of the education and libraries bill

written submission by:
Northern Ireland Council for the
Curriculum, Examinations and Assessment

I don't believe there are any issues referred to in the Bill on which CCEA is qualified to make worthwhile comment. We have very close (and good) working relationships with ELBs and any of our areas of concern tend to arise in areas where there are overlapping responsibilities.

We are all keen to ensure overall "best value" to the taxpayer in Northern Ireland by minimising these overlaps and by making sure that interfaces between the various agencies are effectively managed. These issues are more likely to arise in the debate on Public Administration.

committee stage of the education and libraries bill

written submission by:
National Association of School Masters/
Union of Women Teachers

1. NASUWT welcomes the opportunity of submitting evidence in respect of the Education and Libraries Bill as introduced.

2. NASUWT is a teachers' union with over 10,000 in-service members in Northern Ireland employed in all education sectors from nursery schools to further education colleges.

3. PART I: FUNDING OF GRANT-AIDED SCHOOLS

3.1 Central Funding of Teacher Salary Costs

NASUWT would wish to reiterate the response it made to the consultation document published by the Minister for Education on 5th April 2001.

3.2 While the Association accepts that funding to schools should be operated on a much more standard and equitable basis, it would recommend that the only effective way of ensuring this objective would be to remove teachers' salaries costs from delegated school budgets and to determine staffing establishments in schools by means of a centrally determined staffing formula. It would accordingly seek the inclusion of a clause providing for all teacher salary costs to be deemed to be an excepted item in the budgets of delegated schools.

3.3 At present staffing establishments are budget-driven and fail to take adequate account of educational need. This was illustrated graphically in the declaration of 110 teacher redundancies by the North Eastern Education and Library Board after Easter this year. This was the latest in a series of budget crises which have blighted schools since the inception of delegated budgets in 1989.

3.4 It is significant that the Government and the Assembly were able to provide central funding for the salary costs of those teachers who, with effect from September 2000, "crossed the threshold" into the upper pay range by a process of assessment. If this central funding had not been provided, the additional expenditure incurred in over 13,000 successful threshold applications in Northern Ireland would have had to be met through a wave of teacher redundancies which, in turn, would have led to increased class sizes.

3.5 If a significant element of teachers' salaries, namely the annual £2,148 threshold salary, can be funded centrally, the obvious question which is to be asked is why all of teachers' salary costs cannot also be funded centrally.

3.6 The management of performance involved in approving teacher movement on the upper pay scale has been introduced with a view to improving the quality and relevance of education received by pupils. It should be axiomatic that the salary incentives available to teachers in this context should not be restricted to those schools which have a financial surplus.

3.7 Scotland is the one significant part of the United Kingdom where a system of delegated school budgets embracing staffing has not been introduced. The NASUWT Northern Ireland Federation has researched the system of staffing formulae which is used in Scottish schools and believes that such a system is transferable to Northern Ireland. This system, if introduced in Northern Ireland, would facilitate schools' forward planning in a much more efficient way than the existing system of staffing levels being affected by budget vicissitude, right up to the end of each school year.

3.8 The Scottish staffing formula is as follows:

Primary Education Teachers (Full-Time Equivalent)

Up to 19 1.2

20 to 150 1.5 and 0.039 X Pupil Roll

More than 150 1.67 and 0.0377 X Pupil Roll

(Example: a school with 170 pupils would receive a staffing complement of 8.17)

The number of FTE teachers derived from the application of this formula is augmented by a "flexibility" addition of 6% to allow for the staff resources needed to provide, for example, for secondments of serving teachers and the release of teachers for staff development.

SECONDARY EDUCATION

The staffing establishment of Full-Time Equivalent teachers is determining by the formula of 10.24 + 0.059 X Pupil Roll.

(Example: a school with 550 pupils would receive a staffing complement of 42.69)

The staffing complement is augmented by a "flexibility" addition of 4% to provide for commitments such as secondment, induction needs, external examination commitments and appropriate programmes of staff development and in-service training. The staffing formula also incorporates an allowance for non class contact time for promoted posts in individual schools. The contractual time allocated for this purpose would be calculated on the basis of the formula 2.05 plus 0.0046 for each pupil on the pupil roll.

SPECIAL SCHOOLS AND SEN

The formula for special schools is 0.2 staff for each pupil on the pupil roll. For example, a school with 100 pupils would receive a complement of 20.

3.9 The advantages of a system of central funding of teacher salary costs can be summarised as follows :

• it would ensure that schools' staffing establishments are determined on educational grounds and not primarily on budget grounds;
• as schools would be able to determine precise staffing levels a year in advance, it would assist forward planning;
• it would avoid discrimination against schools where there are above average numbers of experienced teachers;
• it would discourage the growing practice of appointing teachers on temporary fixed term contracts because of budget uncertainty in particular schools and would ensure that a higher percentage of newly qualified teachers obtain permanent employment in their first year after initial training;
• it would avoid the practice in many schools of planning to underspend rather than take on the financial costs of a permanent teacher;
• it would ensure that earmarked funding would result directly in employment of teachers in special initiatives, eg Reading; and
• it would prevent the elimination from the curriculum for budget reasons of minority subjects such as Classics.

Consultation

3.10 NASUWT would urge that Section 1 (4) be amended to provide for recognised teacher unions and the members of the teaching staff to be consulted in respect of the draft scheme. The Association believes that these two interests are key players in the efficient operation of grant-aided schools and, on the basis of the principles of inclusivity, should have a statutory right of consultation.

Common Funding Formula

3.11 Notwithstanding its commitment to teachers' salary costs being considered as an excepted item in delegated school budgets, NASUWT would fully support the concept of a common funding formula. Such a formula would be consistent with the principles of equality of opportunity and would be overdue in respect of allaying fears that some schools, because of geographical location, are treated more advantageously than others. This would be equally relevant if school budgets were to be restricted to covering recurrent expenditure cost other than teachers' salaries.

Preparatory Departments

3.12 NASUWT appreciates the historical reasons why preparatory departments of voluntary grammar schools receive reduce or nil funding but would request provision in the Bill for the Department to meet the costs of redundancy payments in cases where preparatory departments are required to reduce their staffing or to close.

PART II: BOARDS: FINANCE AND THE DUTY OF BEST VALUE

4. The Duty of Best Value (Clause 11)

4.1 While the definition of the duty of best value is in line with general practice, the Association would recommend it to be widened, specifically with a view to taking account of 'equity' considerations. This would be of particular relevance to Northern Ireland given the developments in terms of equality legislation placing statutory requirements on public bodies. The Association would suggest reinforcing this through the inclusion of a reference to the provisions of Section 75 of the Northern Ireland Act.

4.2 NASUWT would insist that health and safety requirements must be added to the issues which a board is obliged to have regard to and that this should be specifically recognised in the Bill.

PART III: SCHOOLS

5. Child Protection Measures (Clause 16)

The Association supports the introduction of the duty on Boards of Governors to determine child protection measures. It would, however, seek provision in this Clause requiring Governors to be responsible for the regular briefing of all staff in respect of the school's child protection policy and processes.

6. Parental Preferences for Admission in Nursery Schools (Clause 19)

The Association accepts that the definition of parental preferences is broadly in line with existing provisions in England and Wales. It would, however, be concerned over the detrimental effect of parental preference on social inclusion, integration, respect and tolerance.

7. Admission to Special Schools of Children Resident outside Northern Ireland (Clause 20)

The Association would argue that this Clause should be extended to provide for teaching costs to be recovered from the jurisdiction in which the child is resident. It believes that it would not be equitable for Northern Ireland to subsidise the cost of special education which should have been met by the other jurisdiction.

8. Removal of Members of Boards of Governors (Clause 21)

NASUWT fully supports the provisions of this Clause. Removal from office would be a reasonable sanction to deploy, not just in cases of individual bankruptcy, but in cases where Governors were found guilty of unlawful actions such as sex discrimination or discrimination on grounds of trade union membership, or in cases where the Governors breached the provisions of central salary determinations.

9. Development Proposals for Grant-aided Schools (Clause 22)

NASUWT welcomes this extension to existing statutory provision. While many Boards of Governors and employing authorities currently provide early consultation on an extra-statutory basis, such early consultation should not be provided on a discretionary basis.

10. Appeals against Expulsion: Tribunal Procedures (Clause 23)

The Association regrets that this Clause is restricted to providing for appeal tribunals sitting in private. NASUWT is concerned that the way in which the operation of these tribunals increases the difficulties experienced by schools in maintaining effective standards of pupil behaviour. It would wish to see statutory provision relating to the constitution of appeal panels, the guidance given to panels, the accountability of the panels and the impact of the work of these panels on educational provision and management in schools.

PART IV: MISCELLANOUS AND SUPPLEMENTARY

11. The General Teaching Council for Northern Ireland : Fees and Procedures (Clause 33)

11.1 It appears that the Bill would lead to the rescinding of the requirement for the procedures relating to the removal of teachers from the GTC register to be determined outside the regulations. Consequently, the regulations would function only as a framework within which the actual procedures would be situated.

11.2 NASUWT would urge the Assembly to resist the introduction of any changes to the existing arrangements, especially given that the GTC in Northern Ireland is yet to establish itself fully. It would prefer to see these matters kept under review.

11.3 NASUWT would wish any GTC function incurring expenditure to be specifically identified and to be the basis of full consultation before being ratified. If functions are not screened, the resultant registration fee could become much higher than fees in other GTCs due to the very small teaching population in Northern Ireland.

12. Abolition of Corporal Punishment (Clause 34)

NASUWT welcomes the extension of prohibition to include independent schools which are not grant-aided.

committee stage of the education and libraries bill

written submission by:
North Eastern Education and Library Board

GENERAL

The Board welcomes the opportunity to contribute to the debate on the Education and Libraries Bill and is grateful to the Education Committee for the inclusion of the North Eastern Education and Library Board amongst its consultees.

This response is structured in line with the Bill and deals with the policy issues as well as how those policy issues are to be enacted.

1 PART 1: FUNDING OF GRANT AIDED SCHOOLS

Policy Issue

The Board has no objection to a common funding scheme for Northern Ireland. The legislation however does not define what a common funding scheme is. In the accompanying notes the Department has indicated that the key objective is to remove differences in levels of funding to schools so that schools of similar size and characteristics receive a similar level of funding. Whilst this policy might be achieved through a common formula it does not mean schools will have equal spending power. The Board believes spending power should be equitable.

It has been estimated to fund all schools equally will cost an additional £15million across Northern Ireland. The common funding scheme should not be implemented until these additional resources are available.

Much of the draft legislation in this Part is enabling legislation and provides a framework to the funding of schools. It is therefore vague in places, requires further detailed work and often gives the Department far reaching powers eg: Clause 2(2)(b).

Draft Legislation

Clause 1 The common funding scheme for grant-aided schools

These arrangements seem reasonable. In para 7 would it not be more sensible for the Board for the area to also conduct consultation on the scheme with voluntary grammar and grant maintained schools? This would allow consistency of approach. Para 12 suggests that at some stage in the future this approach will take effect. It therefore seems reasonable to enact it with the introduction of the common funding scheme.

Clause 2 Contents of the Common Funding Scheme

Clause 2 para 10 allows schools to receive funds outside their budget share. Does this not undermine the policy of fair and equal treatment to all schools allowing additional resources to be allocated to some schools but not others?

Clause 3 Conditions as to Financial Delegation

No comment.

Clause 4 Effect of Financial Delegation

Much of this clause reflects that which is already permitted in the context of Board Schemes.

Clause 5 Publication of Financial Statements

Clause 5 requires financial statements to be published for schools and this is presently being carried out by Boards. The Board anticipates no difficulty in implementing this clause and supports the principle of openness and transparency behind it.

It will not be a straightforward process to report on how resources allocated to Voluntary Grammar Schools and Grant Maintained Integrated Schools will be allocated should the proposal to fund these schools by the Board take place because expenditure is not incurred through the Board's systems.

2 PART II: BOARDS: FINANCE AND THE DUTY OF BEST VALUE

Clauses 8, 9, 10

It is noted that the Department of Education is 'The Department' under whose direction the Board is required to keep accounts. Unfortunately this 'direction' does not necessarily reflect the practice/requirements of the other two sponsoring Departments. There is a need for consistency of approach.

Clause 11 The Duty of Best Value

(1) The Board, in common with other Education and Library Boards, has been engaged in a programme of Best Value Service Reviews and, in addition, has contributed to the fundamental reviews carried out by the 5-Board unit established for the purpose. In this context the Board particularly welcomes the emphasis on a process of continuous improvement and also the fact that the legislation is not prescriptive in terms of methodology but rather allows for a localised approach to suit each Board's individual circumstances and stage of corporate development. The Board would wish to see a reference to quality of service as well as economy, efficiency and effectiveness.

(2) There is a high risk of consultation fatigue amongst users of public services generally. The Board would be more concerned to ensure that consultation focuses directly on service quality and improvement rather than on the methodology to be used.

PART III: SCHOOLS

Clauses 15 and 16 Duty on Boards of Governors to safeguard and promote the welfare of pupils

In policy terms the Board welcomes the clarification that Clauses 15 and 16 provide in that Boards of Governors will now have a statutory duty to safeguard and promote the welfare of pupils on the school premises and when pupils are in control or charge of a member of staff. Clause 16 also ensures that action should be taken by Boards of Governors in exercise of these duties.

Whilst the Board is supportive of any attempt to enhance child protection, placing this duty on Boards of Governors may not be the appropriate mechanism to achieve the desired action. Often Boards of Governors are not able to perform the functions placed on them.

Clause 17 School discipline measures to prevent bullying

The Board supports the policy objective and the proposed legislation in Clause 17.

Clause 18 Admissions appeals: tribunal procedures and expenses

Clause 18(1) inserts a new sub paragraph after 15(8) of the 1997 Order. This provides for tribunals to sit in private unless the regulations stipulate otherwise. Article 15(8)(e) of the 1997 Order gave Boards power to determine all matters relating to procedure not specified by the legislation. Our Board procedure determined that hearings would be in private. The Board is not aware of any problems having arisen which necessitate this change.

Clause 18(2) and 18(3)

The Board under previous legislation was entitled to make travelling and subsistence payment to members of tribunals "at such rate as the Department may determine". We pay our tribunal members travel and subsistence allowance based on the rates set by the Joint Negotiating Council for the Education and Library Boards.

Clause 19 Admission to Nursery Schools

The proposed legislation changes fundamentally the present system for applying for places in Nursery Schools and Nursery Units.

At present parents must apply directly to schools/units (and also to other funded providers). As there are statutory criteria giving preference to the "socially disadvantaged" and older children, the same children may get a number of "offers" while others get many initial "refusals". Schools set a timescale for acceptance by parents of the places offered and reallocate where acceptance is not confirmed. This continues over a period of months. It is a very confusing, bureaucratic system.

The proposed system will bring schools/units into line with procedures for primary and post-primary ie single application form with preferences listed in order. This is a much more sensible system and for the first time meaningful statistics on applications will be possible.

From the schools' point of view much of the bureaucracy will be passed to the Board! The workload in the Open Enrolment Branch will be increased as we will have to operate a "clearing house" system, "track" applications and "chase" schools to meet deadlines. Additional records will have to be kept to produce statistical data. Problems will continue with "nursery" admissions because the "statutory criteria" are extremely unpopular with working parents. It is also not possible to extend the single application to cover application to the "other providers" who continue to remain outside the "appeal" legislation. These difficulties are not aggravated by the new legislation.

There will be additional costs to Board Headquarters.

Clause 20 Admission to special schools of children resident outside Northern Ireland

Clause 20 allows children to be admitted to special schools from outside Northern Ireland. In the NEELB this legislation is unlikely to be relevant as special schools are always at full capacity with Northern Ireland children.

In policy terms however the legislation allows children wherever they live to receive special education in Northern Ireland and for schools to be fully utilised. This is to be welcomed. The term 'school' however has a particular definition, whereas the clause implies that special education provision should be available to children resident outside Northern Ireland.

Clause 21 Removal of members of Boards of Governors

Clause 21 allows for the removal of all voting and co-opted members of Boards of Governors or individual members in circumstances where it is in the best interests of the school. The Board welcomes these powers.

It is surprising the Department wishes to take this power to itself considering it appoints very few governors to Boards of Governors. There is no appeal mechanism.

Clause 22 Development proposals for grant-aided schools

Clause 22 recognises the findings of various judgements on consultation relating to school development and establishes a firm legislative base. The Board notes this position, however it should be acknowledged that rationalisation and school closures, at a time of declining enrolments, will now be lengthy, complex and difficult to achieve.

Clauses 23, 24 Appeals against expulsions: tribunal procedures curriculum etc, complaints: tribunal procedures

No comments.

Clause 25 Consultation of schools by sampling

The Board supports the policy objective outlined in Clause 25 to reduce the bureaucratic burden on schools. It is important however that the outcome of the sampling process produces a result which is reliable and rigorous. It may be that from time to time the Department may wish the views of all schools affected to be obtained and this clause does not allow for such a situation.

Clause 26 Costs under approved contracts

Clause 26 will have serious consequences if PPP/PFI becomes wide-scale. It will mean Boards will have to pay contracts before resourcing schools, in effect non PPP/PFI schools will be subsidising PPP/PFI contracts.

PART IV: MISCELLANEOUS AND SUPPLEMENTARY

Clause 27 Determination of travelling and subsistence allowances

The Board supports the principle enshrined in Clause 27 that Boards should exercise greater autonomy in the management of their affairs. However there are a number of issues - consistency amongst Boards and conflict of interest.

If the Staff Commission is involved nb: paras (4)(2)(b) and (6)(3)(a) then the Staff Commission should be required to develop a model scheme and establish benchmarks.

Clause 28 Officers of Boards

The Board welcomes the streamlined appointment procedure outlined in Clause 28 and the increased autonomy to deal with its own staff.

It should be noted that the Chief Executive's Accounting Officer role is now a fundamental element in the conditions of the post, yet it is not included in para 83(1)(a).

Clause 29 Principals on Teaching Appointments Committee

Clause 29 enhances the flexibility to appoint principals to the Teaching Appointments Committee from another Board's panel and the Board welcomes this.

Clause 30 Programme of Training by Boards

The change proposed in Clause 30 will remove unnecessary bureaucracy. Increasingly Boards are responding to centrally led and determined targets (ie Education Performance Targets) which in turn determine the priorities for the Board's training programmes. The Board would therefore question the need 'to consult Boards of Governors and certain other interests before preparing their programmes' and believes this requirement should be omitted from Article 149(2) of the Education Reform (NI) Order 1989.

Clause 31 Terms of appointment of members of CCMS

No comment.

Clause 32 Provision of secondary education for pupils by Institutions of Further Education

Clause 32 implements a most welcome change. It will afford schools the opportunity to broaden considerably the range of educational opportunities available to pupils at Key Stage 4 especially in relation to work related and vocational studies. It will also allow pupils over 14 to receive cost-effective, relevant education outside school.

Clause 33 General Teaching Council for Northern Ireland: fees and procedures

No comment.

Clause 34 Abolition of Corporal Punishment

Clause 34 replaces The Education (Corporal Punishment) (Northern Ireland) Order 1987 and applies to all schools and Institutions of Further Education. The Board notes the policy change incorporated in the proposed legislation.

The Department should include clear guidance on action that can be taken to restrain a child in order to avert an immediate danger of personal injury or immediate danger to the property of any person.

Para 1 does not seem to include children who are being educated outside school or outside the provisions of Article 86 of the 1998 Order.

Clause 35 Reports and Returns

No comment.

Clause 36 Annual Report of Boards

Clause 36 puts into legislation the present practice of Boards and the Board has no objection to the Department formalising the content of the Annual Report.

committee stage of the education and libraries bill

written submission by:
NIPPA - The Early Years Organisation

NIPPA - The Early Years Organisation is extremely concerned that the proposed new Education Bill will do nothing to remedy the legislative loophole, which currently allows for the admission of 2 year olds into statutory nursery provision.

The current legislative position dates from a period prior to the Government's Pre-school Expansion Programme. Prior to 1998 the likelihood of a 2 year old being admitted to nursery provision was remote given the low level of pre-school provision and the high demand on places. However, since the Pre-school Expansion Programme has provided for an expansion from 45% provision to 85% provision, the situation has changed dramatically. Currently, Department of Education figures would suggest that across Northern Ireland 10% of Nursery places are occupied by 2 year olds.

This situation raises a number of concerns for NIPPA and other early years professionals within the early education area. These are as follows:

• The current Nursery Curriculum is not suitable for these younger children.
• Teaching staff have not been trained to meet the social, emotional, physical and cognitive needs of these very young children.
• Current nursery buildings are often unsuitable in terms of meeting the physical and care needs of these young children ie nappy changing and sleeping areas.
• Current staff ratios are inadequate in terms of meeting the personal needs of very young children. The same age group of children in Social Services Registered Day Nurseries require a staff ratio of 1 adult to 5 children.
• The 10% occupancy of places by 2 year olds means that 10% of 4 year olds who should be receiving a free place are not receiving such a place and parents continue to pay for provision. If the Programme for Government target of 100% free provision for those parents who want it is to be achieved then this situation cannot continue.

We would urge the Department of Education and the Education Committee to use the opportunity of the current proposed legislation to remedy this situation.

committee stage of the education and libraries bill

written submission by:
northern ireland human rights commission

Introduction

The Northern Ireland Human Rights Commission is a statutory body established under section 68 of the Northern Ireland Act 1998. Under section 69(1) of the Act it has a duty to keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.

Education has long been recognised as a fundamental human right. At least three international human rights documents guarantee the right to education: the United Nations Declaration of Human Rights, the United Nations Convention on the Rights of the Child, and the European Convention of Human Rights (now incorporated in local law through the Human Rights Act 1998). These documents guarantee every child the right of access to education, free from any form of discrimination. The Commission uses these and other international human rights standards as a basis for examining any legislative or policy proposal.

The Commission is working closely with the Department of Education, Education and Library Boards and others to promote awareness of human rights in schools and to improve compliance with international human rights standards. The Commission co-hosted a conference on Human Rights and Education, with the Department of Education, in September 2001. The Commission chairs the Human Rights and Education Forum which aims to promote awareness of human rights issues within the education sector.

The Commission submitted a response to the Department's consultation on a common funding formula for grant aided schools and was disappointed not to receive a response from the Department on the types of issues it addressed in its response. The Commission has attached a summary of its response to this consultation and would be interested in discussing its submission with the Education Committee.

Response to the Department of Education Document
A Common Funding Formula for Grant Aided Schools

Summary of Main Response Points

• The Commission is concerned that the funding proposals provide insufficient information to assess their likely impact on delivery of an effective education for all children.
• The Commission is extremely concerned about the potential financial impact for a significant number of schools which could curtail some children's prospects of access to an effective education.
• The Commission considers that more attention should have been given to the question of whether a largely pupil driven funding formula is compatible with the right of all to an effective education when such a large proportion of Northern Ireland schools are small (30%+) and there is a projected decline in pupil numbers.
• The Commission has reservations about the proposal to increase primary AWPU weighting at the expense of secondary AWPUs and the realignment of post-primary year 8-12 AWPU and year 13/14 AWPU. It believes that a much more detailed analysis of the impact is required.
• The Commission considers that the proposal to increase the global amount of TSN funding from 5% to 5.5% of GSB is not sufficient to meet basic TSN objectives. TNS proposals do not address the possible implications of any proposals resulting from the Review of Post Primary Education.
• The Commission is not convinced that there is adequate educational justification for the proposed changes for allocating TSN, in particular the realignment of social deprivation and SEN (Special Educational Need) values, and it is disappointed that the report does not provided evidence to assess their educational impact or practicability. The Commission believes that more detailed analysis of the TSN factor is required
• The Commission notes the impact assessments undertaken in the report but is concerned that conclusions are not supported by relevant evidence or any real analysis of impact.
• With regard to impact on persons of different religious belief the assessment refers only to the impact of proposals for TSN. Assessments of relative impacts should cover all relevant groups and all factors in the formula, including premises, sports, small school support etc.
• The Commission considers that separate assessments should be made for primary and secondary, controlled and maintained sectors, the grammar school sectors (according to their separate denominational standing) integrated and Irish medium sectors.
• The assessment of impact on persons of different religious belief does not address the implications for parents who wish their children to be educated in the integrated sector or the Irish Medium sector. The new proposals contain elements which work against small sectors such as the integrated and Irish medium schools without an inheritance of buildings or endowments which is trying to grow.
• The Commission believes that failure to address this issue is incompatible with the Government's duty to encourage and facilitate the growth of integrated education.
• The impact assessment for persons of different religious belief ignores pupils of other (than Protestant/ Catholic) religious beliefs or none. The Commission considers the Department should urgently review the basis on which it makes provision for religious minorities.
• The Commission is concerned that the provision for children for whom English is a second language (other than in the Irish medium sector) arbitrarily restricts provision to two years. Funding should be available for all pupils who may have a continuing language needs.
• The Commission is concerned that the special problems faced in securing an effective education for pupils with a combination of behavioural and learning difficulties, who are often absent or subject to exclusions (and are not covered by a statement of special education need) have not been addressed by any proposals in the report.
• The Commission welcomes the proposal to include a mechanism for schools to account for use of funds allocated under TSN. It believes that all educational bodies, including ELBs, should be required to account publicly for retained TSN money.
• The Commission considers that insufficient attention has been given in the LMS proposals to the potential for affirmative action to ensure equality of opportunity in Northern Ireland.
• The Commission welcomes the special measures adopted in the formula to promote the teaching of Irish in Irish medium schools and units.
• The Commission believes that there is scope for positive action through the proposed common formula to address the lack of equality of educational opportunity resulting from the current system of educational selection and transfer to selective grammar schools and non-selective secondary schools. The Commission considers that there are strong arguments for an interim additional TSN factor for non-selective secondary schools until the issue of selection is resolved by the Review of Post Primary Education.
• The Commission considers that there is scope through LMS for further action to overcome historic levels of inequality in access to all types of education in accordance with parental wishes and that such action can contribute to the resolution of conflict as provided for in the Belfast Agreement. In particular there is a need for special provisions in the formula to encourage parents to have confidence in the cross-communal character of schools which wish to transform to become integrated schools.

Clause 15: Duty on Boards of Governors

The Commission welcomes the new duty on Boards of Governors to safeguard and promote the welfare of registered pupils at school. However the Commission recommends that this duty should reflect the duty on the State as contained in Article 3 of the United Nations Convention on the Rights of the Child. As a signatory of the United Nations Convention on the Rights of the Child the government is committed to promoting the standards set within in it. One of the most effective means of achieving the standards set out in the Convention is to incorporate them into local law. Article 3 states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, the best interests of the child shall be a primary consideration.

This duty should apply to all children in schools including children who are boarders.

Clause 16: Child protection measures

The Commission welcomes the introduction of compulsory child protection measures. It would suggest several amendments. At 16(1)(a) the review of child protection measures should be yearly. At 16(1)(b) regard should also be had for the views of parents and children and at 16(1)(c) a duty of give children a copy of the document should be included.

Clause 17: School discipline measures to prevent bullying

The Commission welcomes the introduction of school discipline measures to prevent bullying. It is recommended that Article 3(3)(a) of the Education (NI) Order should be amended to ensure principals 'shall' make rules and provision for enforcing them rather than may 'make' rules.

The Commission suggests that a duty should be placed on schools to ensure written copies of measures to prevent bullying are made available for inspection and to all parents, pupils and those employed in the school.

The Commission is of the view that two further mechanisms are necessary to ensure the impact intended by the legislators is achieved. In the first place there is a need to establish a system to monitor the effectiveness of the anti bullying measures. Secondly, at present young people who are subject to bullying will have no right to redress if they find that their compliant of bullying has not been dealt with in accordance with the school procedures or if the school has failed to set up measures to prevent bullying. The Commission recommends that such a complaints procedure be established.

Clause 18: Admission appeals

Clause 18(1) seeks to amend the 1997 Order to allow provision to be made for admission appeals tribunals to sit

"in private, except in such circumstances as may be specified in. the regulations".

The relevant human rights standard here is Article 6(1) of the European Convention:

In the determination of his civil rights and obligations. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The presumption therefore should be in favour of tribunal hearings being held in public. Since the sole purpose of the tribunal is to determine whether the refusal of admission in any given case was fair and proper by objective standards, it is rather unlikely that the interests of justice would more often than not demand that the hearing or any part of it be held in private.

The Commission would nevertheless acknowledge the possibility that privacy considerations or the best interests of the pupil concerned might, on occasion, require that some parts of a tribunal case might need to be heard in private. We therefore propose that the proposed sub-paragraph (dd) be amended to delete the word "except", i.e. to provide that it is the circumstances in which private hearings take place that need to be spelt out in regulations, so that the presumption is in favour of public hearings.

Clause 20: Admission to special schools of children resident outside Northern Ireland

The Commission's understanding is that clause 20, although potentially applicable to children from other jurisdictions, is primarily intended to address the circumstances of the extremely small number of children, perhaps one or two in a given year, who are admitted to "spare" places in border-area special schools when no suitable provision is available in the Republic. At present there is no mechanism to allow the Southern authorities to cover the cost, and admission is negotiated for the individual child on a single-year basis. One reason for this is that the legislation in force in the North compels boards to make provision for a child with a statement of special educational needs; the fear is that if a child from outside the area is taking up the last available place, the board might not be able to meet its obligation to a "statemented" child resident within its area. But the corollary of this is that the Southern child might be asked to leave at any time, regardless of its best interests, because the Northern child needed the place.

It is difficult to imagine how clause 20(2), which limits arrangements for admission to one school year at a time, could ever operate in "the best interests of the child" in terms of article 3 of the UN Convention on the Rights of the Child. Security and continuity of education are important for any child, and no less so where the child has special educational needs. It would obviously be in the best interests of a pupil, other things being equal, to be guaranteed access to the most appropriate school for as long as that remained the most appropriate school for him or her. Anything that required a child suddenly to leave a school that he or she had been attending-a school in which he or she had formed learning and social relationships-would almost certainly be contrary to the child's best interests. It is also relevant to consider the effect on the child's family, since the family life may have been reorganised around the cross-border placement and anything that disrupts the arrangements made by the family, and that creates insecurity and anxiety within it, must also impact negatively on the child.

In fact the overall effect of clause 20 is rather worse. Not only does it deny security to the individual child; it actively prevents the development of a strategic approach to cross-border placements (and other cases, if any, of admissions of children from outside the jurisdiction). Whereas clause 20(5) allows boards to charge for such admissions, and indeed permits them to charge up to and above the full cost of providing the places, nothing is provided to encourage or allow boards to enter into long-term contractual arrangements with the "sending" authority. Even if, in a given year, only one or two children cross the border to attend a special school, it is quite foreseeable that some of those children will have the same need for several years to come, and that the situation will arise again in future years with other children. It would be appropriate for the Northern and Southern authorities to make arrangements to ensure that, where possible, such admissions are made for as long as the best interests of the affected child require, rather than for as long as may be convenient for the Northern board.

From a human rights perspective this raises the extremely difficult issue, one currently the subject of lively debate in the United Nations and elsewhere, of the extent to which a state may accord equal or lesser human rights to non-nationals; in this context, the issues include whether the "best interests of the child" can be interpreted differently according to whether the child is permanently resident in Northern Ireland or merely coming into the jurisdiction to receive education. The Convention on the Rights of the Child commits States Parties to respecting and ensuring Convention rights

"to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his parent's or legal guardian's. national, ethnic or social origin. or other status"

(article 2). This includes rights to special education (article 23). Clearly this cannot be interpreted as imposing a duty on the United Kingdom to admit to its special schools any child from any country who can demonstrate a need; but it is arguable that once any child has been admitted into a Northern special school and so is spending a large proportion of his or her time in the care of the state, he or she is "within [the] jurisdiction" and has acquired Convention rights. If that is accepted, it would be a contravention of the United Kingdom's treaty obligations to expel a Southern-resident child solely because a Northern-resident child needed the place.

It is also arguable that children in Southern border counties who are merely seeking admission have rights, albeit probably not under the Convention.

It is important to note that the Bill seeks only to regulate the existing, small-scale practice of admissions of children living very close to the border but too far from any suitable provision in the other jurisdiction. It is a long established practice in international law to make special administrative regimes for populations in border regions, that often amounts to a state providing citizens of particular regions of the neighbouring state with some of the rights and privileges that would otherwise be limited to citizens of the first state. That sort of arrangement is normal even without the complicating factors in this island that (1) many residents of Northern Ireland are nationals of the Irish Republic, (2) a large number of residents of the Southern border counties would have little difficulty in establishing eligibility for UK nationality, (3) both states concerned have a large degree of "pooled" citizenship and sovereignty and mutual obligations through their membership of the European Union, (4) education has been identified as an area of North-South co-operation under the Belfast (Good Friday) Agreement and the supporting treaty, (5) the particular problems of border areas, and the need for specifically cross-border co-operation (as distinct from all-island co-operation) were similarly identified in the Agreement, and (6) as noted above, there is an established practice of admitting Southern children. All of these considerations suggest that, even without taking the Convention into account, children with special educational needs living just inside the Southern border counties are entitled to have their needs taken into consideration by the authorities running special schools just inside the Northern border counties, and on something more than a concessionary, year-on-year, case-by-case basis.

The Commission proposes that both aspects - the interests of the individual child, and the strategic development of this sort of provision - could be addressed firstly by amending the relevant section of clause 20 to read:

(2) Arrangements made in respect of a child under this section shall, when possible, be for as many school years as the child would be expected to attend the school if the child were resident in Northern Ireland; but arrangements may be made under this section for a period of one or more school years at a time.

A new section should also be added:

(6) A board may enter into arrangements, subject to the approval of the Department, with appropriate authorities outside Northern Ireland to cover the cost of provision of places in special schools.

This does not entirely dispose of the difficult issue of what happens when a child resident within the board area, and with a statement, seeks admission to a special school where a child from outside the jurisdiction, hence without a statement, has already been admitted. The Commission proposes that all children should be treated on a basis of equality once they have been admitted. One way to secure this might be to require that an assessment and statement of needs for the Southern-resident child be made before or immediately after admission, and that thereafter the child shall have no more or less right to remain in the school than any other statemented child. The Commission merely offers this as a way forward but is not proposing an amendment to the present Bill since there may be other ways to secure that outcome.

Clause 23

Clause 23 seeks to amend the 1989 Order to allow provision to be made for tribunal hearings against appeals against expulsion of pupils to sit

"in private, except in such circumstances as may be specified in. the regulations".

The relevant human rights standard here is Article 6(1) of the European Convention:

In the determination of his civil rights and obligations. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The presumption therefore should be in favour of tribunal hearings being held in public. Since the sole purpose of the tribunal is to determine whether the expulsion in any given case was fair and proper by objective standards, it is rather unlikely that the interests of justice would more often than not demand that the hearing or any part of it be held in private.

The Commission would nevertheless acknowledge the possibility that privacy considerations or the best interests of the pupil concerned might, on occasion, require that some parts of a tribunal case might need to be heard in private. We therefore propose that the proposed sub-paragraph (db) be amended to delete the word "except", i.e. to provide that it is the circumstances in which private hearings take place that need to be spelt out in regulations, so that the presumption is in favour of public hearings.

The Commission recommends that Article 49(10) of the Education and Libraries (NI) Order be amended to include the right to legal representation for children at Expulsion Appeal Tribunals. The child's right to education is a fundamental human right and requires that children have access to free legal advice at expulsion appeal tribunals. Therefore the Commission suggest that the following clause be inserted to the Order after sub paragraph (d) -

'(e) may provide for the separate free legal representation of children at appeal tribunals.'

The Commission is very concerned about the timescales concerning expulsion from school. It believes that there should be one uniform timescale for the hearing of appeals against expulsions in Northern Ireland. This should probably reflect the timescales set out in the Schools Standards and Frameworks Act 1998. For example: parents and pupils should be invited to a consultation meeting within 15 days of expulsion or exclusion of more than 15 days and 10 days should be allowed for appeal of a decision to expel.

Clause 32: Provision of secondary education for pupils by institutions of further education

The Commission welcome the proposals to allow secondary education to be provided by an institution of further education. However it is very concerned about the introduction of school pupils into a more adult environment. Firstly the child's right to an effective education must not be diminished by their placement in an institution of further education. The Department needs to describe how this will be ensured. Secondly, school pupils at an institute of further and higher education may be exposed to a wider range of influences than they would be at school. Whilst this may be important educationally in some cases it has the potential to be damaging for some pupils. The Commission would be most concerned about abuse, bullying or harassment. The Department of Education needs to guarantee that pupils will receive the same level of care an protection in the institute of further education as they do in a school.

The Commission recommends that additional clauses be inserted in clause 32 to ensure school pupils attending institutes of further education receive equality of treatment with those in school, specifically that their right to education is protected and that they are adequately protected from abuse, bullying or harassment.

Clause 34

The Commission welcomes the abolition of corporal punishment in all schools.

committee stage of the education and libraries bill

written submission by:
Save the Children

1.0 Introduction

Save the Children is the UK's leading international children's charity, working to create a better future for children. In a world where children are denied basic human rights, we champion the right of all children to a happy, healthy and secure childhood. We put the reality of children's lives at the heart of everything we do. Together with children, we are helping to build a better world for present and future generations.

Save the Children works in the UK and across the world. Emergency relief runs alongside long-term development and prevention work to help children, their families and communities to be self-sufficient. We learn from the reality of children's lives and campaign for solutions to the problems they face. We gain expertise through our projects around the world and use that knowledge to educate and advise others. All of our work is underpinned by a commitment to making a reality of the rights of children enshrined in the UN convention on the Rights of the Child.

In Northern Ireland Save the Children works through a variety of partnership approaches to support community level action on children's issues; facilitates children and young person-led initiatives; undertakes independent research and policy analysis and promotes children's rights through public education and fundraising activities.

Save the Children welcome this opportunity to respond to the draft Bill.

2.0 General Comments

There are several references throughout the legislation relating to consultation. Both the UNCRC and the Children (NI) Order 1995 recognise the right of the child to be involved in decision making. S75 of the Northern Ireland Act also obliges public bodies to consult children and young people as well as others. We would like to see pupils and children specifically mentioned in the legislation whenever consultation is referred to.

The UNCRC and Children (NI) Order also require that we act in a manner that is consistent with upholding the child's best interests. It is our view that there should be an over-arching clause in this legislation specifying that all policies, practices and procedures emanating from it will uphold this right.

Not all children are looked after by their parents. We suggest that whenever parents are mentioned in the bill the term 'or carers' should be added to reflect the diversity of children's lives.

3.0 Part 1 - Funding of Grant-Aided Schools

We welcome the proposals for the introduction of a common funding scheme for grant-aided schools, as we believe that its introduction has potential to create more equity between schools.

3.1 S2 (5)

While we appreciate that administratively the procedures for schools need to be as streamlined as far as possible, we also believe that funding should follow the pupil. The formula, therefore, should be capable of accommodating pupils who move mid-year with the funding 'following' the pupil to the receiving school. This has particular relevance for Traveller children, many of whom have a nomadic lifestyle and are likely to change school mid-year.

3.2 S2 (10)

The consequences of Traveller children's nomadic lifestyle in terms of funding could be accommodated through a discretionary payment mentioned in this section. It would be helpful if this section specifically mentioned Traveller children.

4.0 S15

Given obligations in relation to the UNCRC and the Children (NI) Order 1995, it is our view that the "best interest" principle should be reflected throughout this legislation.

Consequently, we suggest that 'and best interests' is added in after welfare throughout this section and that the duty referred to in this section should be re-worded to incorporate the paramouncy of the child's best interests. We suggest the following:

"It shall be the duty of the Board of Governors of a grant-aided school to safeguard and promote the welfare and best interests of registered pupils at the school at all times when such pupils are

(a) on the premises of the school; or

(b) in the lawful control or charge of a member of the staff of the school.

In discharging this duty the Board of Governors shall at all times regard the best interests of the child as the paramount consideration."

5.0 S16 (1) (a)

Society and the world which children inhabit are constantly changing. New developments and opportunities also bring new dangers for children. It is essential that child protection measures take account of such potential dangers and that child protection procedures are updated on a regular basis.

We suggest that after 'from time to time' add in 'and at least once a year'.

An additional clause should be added so that as part of this review there will be consultation with both pupils and parents. We suggest the following

"In conducting any review of these measures the Board of Governors shall consult with both the registered pupils and their parents".

5.1 S16 (1) (c) (i)

Children and young people are entitled to information. If they are to be properly protected they need to know and understand both the dangers that they may face and what the school can do to protect them from such dangers.

We suggest that a new clause be added which reads "a child-friendly copy of that statement is given (free of charge) to all registered pupils at the school."

5.2 S 16 (C) (2)

There is a need for pupils, staff and parents to understand that bullying is abuse. Bullies (or potential bullies) need to understand the seriousness of their actions while potential victims need to know that the school is supposed to protect them from such harm. It is not enough to place bullying only within the context of school discipline.

While, therefore, we welcome the definition of abuse offered which encompasses physical or mental abuse we would like the clause to read:

"In this section 'abuse' includes sexual abuse and abuse causing physical or mental harm to a child, including bullying".

6.0 S 17 (1)

As mentioned above bullying needs to be seen in the context of child protection, not just discipline.

6.1 S 17 (3)

Children have often told us that they are not only bullied by other pupils, but sometimes by adults working in the school. It is important that they understand that no one has the right to bully anyone else. Just as employees in the workplace are protected under legislation from bullying behaviour (harassment and victimisation), so too should children be free from bullying from whatever source.

Sometimes bullying is not recognised as such because the nature of it challenges adults and our attitudes towards certain issues. However, it is important that bullying on any and all grounds is challenged and addressed. We feel it would be useful here to specify the different types of bullying, eg sectarian, racist, sexist, homophobic or bullying because of disability or physical appearance. We suggest the following:

".and, in particular, preventing all forms of bullying at the school including racist, sectarian, homophobic, sexist, bullying because of disability or physical appearance or any other motivation".

A new subsection should also be added to this section regarding the effectiveness of planned measures. Suggested wording might read:

'A reporting mechanism shall be established by the Department which requires schools to document the nature, type and frequency of bullying behaviour, sanctions taken and an assessment of their effectiveness. Schools shall be required to submit a report to both the Education and Library Board and the Board of Governors incorporating these records on the effectiveness of anti-bullying measures on an annual basis'.

There should also be provision in the legislation for the children to get a written statement of measures that will be used to address/prevent bullying as we have suggested for child protection. We suggest adding the following:

"It shall be the duty of the Board of Governors and principal of a grant aided school to prepare a written statement of the measures to prevent and address bullying and a copy of this statement shall be given to both registered pupils and their parents/carers. The pupils version shall be in appropriate language and format".

7.0 S20

It is not clear from the wording of the legislation whether the definition of 'resident' simply means a child who normally lives outside Northern Ireland or whether this definition encompasses children who may live in Northern Ireland but who are not citizens under UK immigration laws.

It is our view that this section may be in breach of S75 of the Northern Ireland Act 1998 in that it may have an adverse impact on children from different ethnic groups such as Travellers. In addition it may be in breach of Article 22 of the UNCRC which relates to refugee children.

We propose that clause 3 is therefore deleted.

8.0 S22 (5)

Recognising that it may not be possible for a school to consult with all of the pupils, teachers and parents and that bodies which represent these groupings may not in fact represent all of the views, there is a need to ensure that the legislation is flexible enough to accommodate both collective and individual opinions.

We propose, therefore, that sub-sections 5 and 5A be amended to read 'and/or representatives of them'.

9.0 S23

We acknowledge that this section deals with the tribunal procedures in relation to expulsions. However, currently the procedures do not allow for children themselves to appeal an expulsion (that right being only the parent's). This situation, we feel, may be in breach of the UNCRC, the spirit of the Children (NI) Order 1995 and the Human Rights Act 1998, all of which emphasise the right to participate in decision making.

We suggest that a new clause is added in to read 'children shall have right to appeal an expulsion'.

10.0 S32

We welcome this clause as it gives formal recognition to EOTAS projects.

11.0 S34

We very much welcome the clause outlawing the corporal punishment of children in all educational establishments, including independent schools. Northern Ireland will consequently no longer be the last place in Europe, East or West, which allows children to be beaten in some of our schools.

11.1 S34 (4)

In our view this clause is not helpful as it is ambiguous and may be open to abuse or misinterpretation. We understand the purpose of the clause but feel it need to be much more specific to avoid any confusion and therefore adequately protect children.

We suggest the following:

1. Delete this clause replacing it with the definition contained in the consultation document on physical punishment of children in the home, which defines physical punishment as

"any action which is intended to cause physical punishment to describe any action which is intended to cause a child physical pain or discomfort, with the intention of punishing him or her. We do not include in the definition things which may cause a child pain or discomfort but are not done with the intention or punishing him or her" (Office of Law Reform, 2001:6).

2. This clause should refer to guidance on restraint as contained in the 1998 Order.

committee stage of the education and libraries bill

written submission by:
South Eastern Education and Library Board

I would apologise for the delay in submitting the Board's response to the draft Education and Libraries Bill. In general terms the Board is content with the proposed changes. The following specific comments are made within that context:

1. In policy terms the Board accepts the need for a common funding formula and the importance of quality of treatment. Much of the legislation in this part of the Bill is enabling legislation and provides a framework for the funding of schools. The Board is already on record with regard to the mechanics of the common formula scheme which will have a significant adverse impact on schools in this Board's area. In terms of consultation with schools, the Board believes that it could carry this out effectively on behalf of all schools and not just controlled.

2. In relation to the Duty of Best Value, the Board alongside its colleagues in the other four Boards, is involved in a programme of Best Value Fundamental Reviews. The Board welcomes the draft legislation particularly in its emphasis on continuous improvement.

3. The Board welcomes the proposed improvements to the system for admissions to nursery schools. The proposals will streamline nursery admissions in line with the admission system currently in place for primary and post-primary applications.

4. The Board supports the amendment to clarify that a Board of Governors, teaching staff and parents should be consulted prior to the publication of a development proposal.

5. The Board welcomes the provision of greater delegation of authority from the Department of Education to the Board as specified in Clause 27.

6. The Board welcomes the flexibility to permit Principals from another Board area to sit on the Teaching Appointments Committee where this is deemed necessary.

As you can see from the above the Board believes that the draft Bill is a positive step. committee stage of the education and libraries bill

written submission by:
Southern Education and Library Board

1. The Southern Education and Library Board (the Board) through its Policy Committee welcomes the opportunity to comment on the Education and Libraries Bill.

2. The Board recognises that the primary purpose of the Bill is to provide the Department of Education with an enabling power to introduce a single common formula for the calculation of school budgets for all schools funded under Local Management of Schools (LMS) arrangements. The Board wishes to comment on this and the other amendments.

The Board's comments are as follows:-

3. Part I - Funding of Grant-Aided Schools:

The Board recognises the significant consultation which has taken place in relation to the introduction of a Common Funding Formula and recognises that the legislation cannot specify the transitional arrangements which are not yet known. Concerns are raised in relation to the reference in Clause 5 particularly reference to "factors affecting the particular needs of any class or description of schools and factors affecting the needs of individual schools". Clause 3(2) and particularly "the possible requirements for Boards of Governors to obtain ELB approval for certain actions" needs clarification.

It is noted that there is no reference to the holding of an Annual Parents' Meeting in the legislation. It was thought that the Department might have taken the opportunity to substitute for the present requirement an arrangement whereby the Annual Parents' Meeting would be held only if a condition applied such as a determined percentage of parents requesting the meeting. The Board's experience is that parents' meetings attract a low or nil attendance.

4. Part II:

It is noted that the changes relate to the establishment of DCAL and DEL, the incorporation of Further Education Colleges and the removal of the obligation on Boards to undertake competitive tendering. The duty on the Board to make arrangements for continuous improvement in the way in which its functions are exercised is noted. The Board is concerned that the legislation should not add to the bureaucratic burden already strangling the provision of education services to young people.

5. Part III:

Concern is expressed about the wording used, in particular, the meaning of "protecting pupils", "elsewhere" and "secure". It is also felt that the term "abuse" should include emotional and verbal abuse.

The age at which children can be consulted and the meaning and interpretation of the word "bullying" need to be clarified.

There is also a lack of clarity in relation to how often pupils and parents are consulted ie is it annually?

While Article 19 (Parental Preferences to Nursery Schools) is welcomed, concern is expressed about the operational aspects and the lack of reference to non-statutory provision. The Board does not believe that the proposed timetable is realistic ie changes for the 2003/2004 academic year.

The issue of supporting diagnostic placement of pre-school children with Special Educational Needs in non-statutory settings has not been addressed. There is a serious issue of equality in relation to support for children in the statutory sector.

Article 20 deals with arrangements which apply only to Special Schools, the Board considers that the legislation should also apply to Special Units/Learning Support Centres in mainstream schools.

6. Miscellaneous:

The Board is concerned that the legislation proposed to provide for the removal of members of Boards of Governors appears draconian. It is assumed that this measure would be rarely used.

On Development Proposals for grant-aided schools, members are concerned about the language used, in particular, the meaning of "at an early stage", "consult" and "representatives" and suggest these should be defined.

The Board welcomes the provision made by Article 32 but is concerned about the lack of protection for teachers under Article 34 - Abolition of Corporal Punishment.

committee stage of the education and libraries bill

written submission by:
Transferor Representatives' Council

The Transferor Representatives' Council is grateful for the opportunity to respond to the Education and Libraries Bill, as introduced in the Assembly on 24th June, 2002. Because of the difficulty of timing over the summer the following comments are submitted on its behalf by the officers of the Council.

Part 1: Funding of Grant-Aided Schools

Par 1ff. The principle of common funding is welcome, but we reserve the right to comment on the scheme when it is published. In particular we would wish to ensure that any additional funding given eg in small school support or to target social need is allocated in a way that is equitable to all.

Par 4(5). We welcome this statement on personal liability, but believe that it should not be restricted by the words "under subsection (4)". We encourage the Committee to make clear that members of a Board of Governors shall not incur any personal liability in respect of any action taken in good faith in the exercise or purported exercise of their powers.

Part 3: Duty on Boards of Governors and Child Protection measures

Pars 15 and 16 are welcomed as a framework of protection for children.

Admissions

Par 19(1)(1)(c). If reasons for preferences are to be given there will need to be some objective criteria by which these reasons are to be measured. Care needs to be taken so that administrative and financial resources are not used up in endless appeals and tribunals.

Removal of members of Boards of Governors

Par 21. While it is accepted that there may in exceptional circumstances be reason to remove Governors, we suggest that Par 21(3)(a) and (6)(a) should be more specific. The nominating body eg Transferors, Trustees, Parents, Teachers, Boards, must be consulted before a removal and when making a replacement. It would also seem necessary to provide a means of appeal.

We trust that these comments are helpful to the Committee. If you would like further clarification we are happy to discuss the issues.

committee stage of the education and libraries bill

written submission by:
UNISON

KEY ISSUES

Formula funding

UNISON broadly welcomes this approach, and its objectives of transparency and fairness.

There are 3 specific issues which should be considered during the passage of this legislation:

(a) current delegated budgets in controlled and maintained schools include the costs of cleaning staff, though these remain Board employees. There needs to be a mechanism which 'ringfences' the related delegated budget from any revised formula funding impact, so as not to prejudice continued employment, and also not to override existing agreements on productivity.

(b) the report on formula funding approaches and subsequent consultation showed no basis for the future delegation of the Schools Meals service. Such delegation would be seriously damaging in the context of the current zero subsidy agenda and the Nutritional Meals initiative. Ministerial assurances should be sought on this.

(c) Assurances should also be sought that the application of a formula funding approach will not be varied for any school which is built or refurbished by the PFI process.

Duty of Best Value (Part II, 11 (1)(2))

This 'light touch' approach, which mirrors the N I Local Government legislation, is a significant improvement on the overprescriptive models in England. Specific issues:

(a) the phrase in II (I) '.having regard to economy, efficiency and effectiveness' is inadequate. 'Equality' needs to be added as a statutory requirement, reinforcing the obligations in Section 75 legislation.

The joint and equal weighting of equality and service performance in the Department of Health's recent Market Testing circular is a useful example of how this approach can be taken forward.

(b) the phrase in ii (2) '..or otherwise have an interest in.' needs Ministerial assurances and if necessary subsequent guidance to encompass all aspects of consultation with recognised trade unions and the workforce.

Contracts: exclusion of non-commercial considerations

This is welcome for its commitment to remove existing proven discriminatory legislation.

(a) the powers need to be exercised rigidly given the current PFI programme for schools. Ministerial commitments should be sought that no PFI process involving the selection of tenderers should be progressed until the powers implied in this section have been exercised.

(b) the matters that cease to be non-commercial should include all elements of discrimination identified in Section 75, and allow the full deployment of the recent EU Communication on Social Issues in Procurement. They should also include a comprehensive framework for worker protection. Ministerial commitments on the speedy implementation of this approach arising from the powers in the legislation are essential.

Repeal of Competition Provisions

This report of CCT legislation is totally welcomed and endorsed.

Abolition of corporal punishment

UNISON endorses the approach taken for all schools which receive Government funding. The Assembly and the Committee should consider whether the abolition approach, given the primacy of protecting the rights of the child, should also be extended to all schools subject to inspection and regulation.

committee stage of the education and libraries bill

written submission by:
Western Education and Library Board

In commenting on the Education and Libraries Bill the Board would draw attention to the fact that when this bill becomes law it will be added to a total of 7 other separate pieces of primary legislation relating to the education system in Northern Ireland, namely:

• The Education and Libraries (NI) Order 1986
• The Education Reform (NI) Order 1989
• The Education and Libraries (NI) Order 1993
• The Education (NI) Order 1996
• The Education (NI) Order 1997
• The Further Education (NI) Order 1997
• The Education (NI) Order 1998

Many of these pieces of legislation incorporate amendments to earlier legislation, some of which have been subject to still further amendment. As a result, it has become increasingly difficult for governors, teachers, parents, administrators and members of the public to understand fully the legislative complexities underlying the statutory education system. In the interests of clarity there is an urgent need for the Northern Ireland Legislative Assembly to consolidate all current primary legislation affecting education, including the Education and Libraries Bill when it becomes law, into a single definitive piece of legislation.

The common funding scheme for grant-aided schools

The Board supports the principle underlying the proposed common funding scheme for grant-aided schools. However it would continue to emphasise the need to ensure that sufficient additional resources are made available to enable the Board to deliver to schools their full entitlement under the common formula without undermining the services to schools for which the Board will continue to have direct responsibility.

Section 1(4) requires the Department to consult boards before preparing a draft scheme, and Section 1(6) requires each Board to consult the Board of Governors of relevant schools about the draft scheme, and to inform the Department of the outcome of these consultations. There is however no explicit provision for Boards to express their own views on the draft scheme after it has been prepared, or to comment in the light of whatever responses they may receive from schools. It is imperative that the legislation provides for the views of Boards to be sought, and given due consideration, before the scheme is adopted and published. It is suggested therefore that the following additional sub-clause be inserted after Section 1(6):

'Each board may submit to the Department its views on the provisions of the draft scheme, and the Department shall give due consideration to those views before adopting and publishing the scheme.'

Section 2(10) states that the common funding scheme may provide for amounts determined by or in accordance with the common funding scheme to be allocated to relevant schools in addition to their budget share. The intention of this provision is not entirely clear, but the Board would emphasise that there will continue to be a need for earmarked sums to be distributed using mechanisms other than the LMS formula.

Resource allocation plans

Section 8 appears to formalise arrangements which have been in operation for a number of years.

Accounts of boards

Section 10 formalises the change from cash-based to accruals accounts operating under Departmental direction since 1999-2000.

Section 10(5) provides for the accounts and the report of the Comptroller and Auditor General thereon to be included in the Board's annual report that is to be laid before the Assembly under Section 36. On a practical level it has not been possible to include audited accounts in the annual report within the laid down timescales. With the agreement of the Northern Ireland Audit Office a 'statement of unaudited accounts' has been included in the annual report. Given past experience it may not be possible to include audited accounts in the annual report, and it may be appropriate to amend the legislation to allow for this possibility.

The duty of best value

Clause 11 places on the Board a statutory duty to make arrangements for continuous improvement in the way in which its functions are exercised, in accordance with best value principles. It is noted that the principles of best value have already been adopted by Boards on a voluntary basis, and an ongoing best value programme is already in place.

Welfare and protection of pupils

The Board welcomes the proposals aimed at strengthening the arrangements within schools to promote and safeguard the welfare of pupils.

Section 15(1) places a duty on Boards of Governors to safeguard and promote the welfare of pupils at all times when such pupils are on school premises or in the lawful control or charge of a member of staff. The inclusion of the phrase 'at all times' imposes an absolute duty of care which may be impossible to uphold. For example, the Board would cite the new and increasing phenomenon of 'cyber bullying', where pupils receive bullying or threatening text messages, and where the anonymity of the perpetrator can be protected. Short of banning the possession of mobile phones in school, it would be impossible to prevent this form of abuse 'at all times'. Schools should certainly be required to take all reasonable steps to prevent bullying behaviour by pupils, and to have effective procedures in place to deal with it when it occurs. However, it is not within the power of a Board of Governors to safeguard pupils from bullying in any absolute sense.

Section 16(1)(b) requires a Board of Governors to take account of guidance issued by the Department, the Board and where appropriate by CCMS. It is suggested that there should be a reference also to guidance issued by the four Area Child Protection Committees in accordance with the requirements of the Children (NI) Order 1995.

In Section 16(2) it is suggested that the term 'mental harm' should be amended to read 'psychological or emotional harm'. The sentence should also contain a reference to 'neglect', given the prevalence of this form of abuse. The sentence would thus read:

'In this section 'abuse' includes neglect, sexual abuse, and abuse causing physical, psychological or emotional harm to a child.'

Parental preferences for admission to nursery schools

Section 19 introduces a requirement for Boards to make arrangements for the processing of applications for admission to Nursery school, taking account of parental preferences. The Board welcomes this development, which should be a great improvement on existing practice. Section 19 however makes no provision for the arrangements made by Boards to be co-ordinated in any way, and there is an obvious need for consistency in terms of procedures and timetables across Board boundaries.

Removal of members of Boards of Governors

In Section 21(8) the 'relevant authority' which is to be given power to remove a member of a Board of Governors from office is defined as:

'a body by which, or person by whom, any member of the Board is appointed.'

In accordance with Article 9A (1) of the 1986 Order (as amended), all members of the Board of Governors of a controlled school are appointed by the Board which is responsible for the school's management, rather than by the persons, agencies or interests who nominate or choose the members for appointment. In view of this it does not seem feasible to provide under Section 21(9) for the term 'appoint' to include 'nominate and choose'.

It would be necessary to give most careful consideration to the advisability of assigning to parents or teachers the power to remove from office an elected member of a Board of Governors.

In the definition of 'relevant authority' the term 'Board of Governors' should be used in full, instead of the misleadingly abbreviated term 'Board'.

Appeals against Expulsion: tribunal procedures

Section 23 refers to Article 49(10) of the 1986 Order, without explaining that this refers to the amended version of that Article as contained in Article 39 of the 1993 Order. The potential confusion which this could cause is a useful illustration of the need for consolidation of all current education primary legislation.

Consultation of schools by sampling

Section 25 is to be welcomed as a positive contribution to reducing the bureaucratic burden on schools.

Principals on teaching appointments committees

This provision is to be welcomed, in view of the difficulties which can occasionally occur in identifying suitable Principals from Controlled schools under the Board's own management to serve on the teaching appointments committee.

i DfEE Circular 10/99, Social Inclusion: Pupil Support, para 4.30

ii Article 3(3) (c ) The Education (NI) Order 1998

iii Note: Section 15(2) of the Standards and Frameworks Act 1998 details procedural rules in relation to the provision of such notice

iv Note: In England, the Local Education Authority may exercise these powers either on their own, or in conjunction with the exercise of additional powers under either or both of sections 16 & 17 of the Standards and Frameworks Act 1998. Details of notice to be provided by the LEA prior to exercise of these additional powers is found at Section 15 (SFFA 1998).

v The regulations which would be of relevance to an appeal tribunal would include the following:

vi School Standards and Framework Act 1998(Amendment of Schedule 18)(England) Order 2001(S.I. 2001/2086).

vii Only pupils who have attained the age of 18 are afforded a right of appeal under exclusions procedures - Where a child under 18 years is expelled from school, it is the parents right to attend consultative meetings and appeal to the Expulsions Appeal Tribunal.

viii [1982] 4 EHRR 293

ix DfEE, PN 357/00; also 'Implications of the Human Rights Act (1998) for Schools', Gareth Parry & Angharad M. Parry, Education and the Law, Vol. 12, No.4, 2000, pg 282

x DfEE Circular 10/94

xi Truancy and School Exclusion, The Social Inclusion Unit, the Cabinet Office 1997, para. 5.9; See also Education: Law Policy and Practice in Northern Ireland, written by Laura Lundy, (SLS Publications), pg 220, para.7.49.