Report on the Education Bill (volume 1)

TOGETHER WITH MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE AND 

WRITTEN SUBMISSIONS RELATING TO THE REPORT

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

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Membership and Powers

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

The Committee has power to:

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

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

The membership of the Committee is as follows:

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

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

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

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

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

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

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

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

Table of Contents

Volume 1

Executive Summary

Section 1 - Introduction

Section 2 - Consideration of the Bill

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

Appendix 1

Minutes of Proceedings

Volume 2

Appendix 2

Minutes of Evidence 179

Volume 3

Appendix 3

Written Submissions 759

Appendix 4

Other Correspondence and Written Evidence considered by the Committee 1019

Appendix 5

List of Witnesses 1361

Executive Summary

1. The overall purpose of the Education Bill is ‘to provide for the establishment and functions of the Education and Skills Authority; to make further provision about education, education services and youth services; and for connected purposes’. The Minister of Education stated that the Review of Public Administration in education and the two Bills – of which this is the first – ‘will bring about the most fundamental reform of our education system in over 30 years . . .’ The Minister emphasised that ‘it is not about tidying up administration, nor is it about cost cutting’ , but it focuses ‘on improving education’ through ‘new structures and new relationships’. The outline business case for the reforms stated ‘that by the third year, in the first phase of this reform, £20 million per year can be directed from bureaucracy to front line services’. Finally the Minister emphasised ‘the ESA will be founded on democratic accountability’, ‘a regional organisation, but with a strong local presence and a real focus on local delivery’, which ‘aims to maximise the autonomy of schools’.

2. The Committee for Education undertook substantial scrutiny of the 22 underlying Policy Papers on RPA in education, prior to the introduction of the Bill, via an extensive series of briefings by senior officials from the Department of Education including ESAIT, and heard the views and concerns of 16 key education stakeholders. Members raised various fundamental concerns with the Department at this stage, and the Minister in her statement prior to the Bill’s introduction set out a number of policy changes - for example, the first Bill will establish the ESA as the employer of all staff in grant aided schools and the second Bill would not reform and simplify the composition of Boards of Governors (thus preserving TRC’s right to nominate Governors for controlled schools). However, Members continued to have a number of serious concerns, which were reflected in the Bill’s Second Stage debate – notably concerns on ESA local services and clarity on ESA Local Committees; clarity on ESA single employer status and area-based planning arrangements; concerns on controlled schools sector representation and ownership bodies; and concerns regarding ESA £50 million set-up costs and delivery of projected £20 million savings in Year 3.

3. The Committee Stage scrutiny of this Bill commenced with the Committee writing to all key education stakeholders and placing notices in the local press, seeking structured, written submissions on the clauses and schedules of the Bill. In the period before receiving 33 submissions from stakeholders, the Committee heard 10 detailed briefings from Departmental officials on selected key themes of the Bill. Some of this confirmed and built on the Committee’s original concerns with the Bill and was key to the Committee’s decision to seek a substantial extension to the Committee Stage of the Bill – to 30 September 2009. At this time the Committee Chairperson emphasised the need for scrutiny preparatory work on the Second Education Bill and to examine the two Bills coherently and holistically. The Committee unfortunately did not receive a draft of the Second Education Bill until 30 September 2009, making it impossible for the Committee to examine the two Bills coherently and holistically.

4. The Committee took oral evidence from, and questioned some 15 key education stakeholders; and received detailed submissions and oral evidence replying to stakeholder issues and concerns from Departmental officials for each of these evidence sessions. Also, for each session, Departmental officials received written requests from the Committee for specific follow-up information. Unfortunately, there were frequent delays by the Department in providing the key information requested by the Committee from these sessions, which frustrated and slowed the Committee’s scrutiny of important issues with the Bill, resulting in the Committee’s letter to the Minister of 20 May 2009. However, the Committee continued its intensive scrutiny of the Bill and commenced its detailed clause-by-clause consideration of the Bill in late May and continued this throughout June, early July and September.

5. In agreeing to recommend a number of key amendments to the Bill to recommend to the Assembly, the Committee’s main theme centred on the need for clarity, certainty and confidence (with the ESA) in several areas of the Bill, where this was clearly lacking. The need for this, particularly clarity, was also evidenced by a significant number of key education stakeholders in the written submissions and oral evidence to the Committee. The Committee provided ample opportunity for the Department’s officials to respond to and explain the rationale for the way some clauses of the Bill and paragraphs of its schedules were drafted and the lack of clarity. However, the Committee concluded in its final decisions – by majority vote – on some of the key Clauses and Schedules of the Bill, that amendments are necessary to gain, in particular, clarity and certainty regarding major changes to the provisions and structures of education services. These are summarised below.

ESA Membership

6. The Committee scrutinised in some detail concerns raised by Members and representatives from some Education and Library Boards regarding the number of, and make-up of the ESA Membership as set out in Schedule 1 of the Bill. The Committee concluded and agreed that the Membership should be increased ‘not fewer than 15 or more than 20 other members’ plus a Chair, and in making appointments the Department should have an additional duty ‘so far as practicable secure’ that the Members, as the group, are ‘representative of the community in Northern Ireland’.

ESA Committees

7. Some Committee Members shared the concerns of key stakeholders (notably CCMS, E&LBs and NICCE) that clarity was needed in the role of Committees of the ESA, particularly the proposed 11 Local Committees. The Committee concluded it needed not only clarity, but certainty and confidence in the ESA as the ‘ESA must be a regional organisation, with a strong local presence and a real focus on local delivery’ (Minister of Education). The Committee agreed to insert enabling provision in Schedule 1 to provide for the Department to make regulations ‘which shall include those functions which may be exercised by each [ESA] Committee’. The Committee also agreed an amendment to make these regulations subject to draft affirmative resolution of the Assembly.

Schemes of Employment

8. One of the major changes from this Bill is that ESA will become the ‘single employing authority for all teachers and other persons’ on the staff of grant-aided schools. Strong objections were raised to this by NICCE, GBA, AQE and NIVGSBA and the Committee undertook extensive and detailed scrutiny on several issues in this area, particularly future relationships between the ESA and Boards of Governors – for example how the ethos of a school would be reflected in ESA Guidance, including Model Schemes of Employment. The Committee agreed ‘in principle’ that the Bill should include an enabling provision which would allow the Department to make regulations to clarify important aspects of employment relationships proposed in the Bill. The Committee eventually received and welcomed agreement from the Minister on this, and the Department brought forward a proposed amendment for such an enabling provision and provided a draft Regulation to the Committee. The Committee will scrutinise the draft Regulation after Committee Stage, but could not recommend to the Assembly the Minister’s proposed amendment. However, the Committee did agree to recommend to the Assembly that any regulations arising from such an amendment should be subject to draft affirmative resolution of the Assembly.

Schemes of Management

9. The Bill proposes that every grant-aided school have in place schemes of management which provide for the membership and procedures of Boards of Governors of the school and the management of the school. The ANIE&LBs had concerns about these schemes, but the strongest opposition came from the GBA. Following confirmation in mid-September 2009 that no guidance or model schemes of management have been issued by the Department to Boards of Governors, the Committee agreed that to gain clarity and certainty it would recommend to the Assembly an amendment to the Bill that ‘The Department shall by regulations make provision as to the form and content of schemes of management’ . The Committee also agreed that these regulations should be subject to draft affirmative control in the Assembly.

Modification of Employment Law

10. The Committee considered that there was a lack of clarity about whether the power under Clause 12 to make orders to modify employment law was subject to negative resolution or draft affirmative resolution control of the Assembly. The Committee, to gain absolute clarity and certainty on this important power, agreed to recommend to the Assembly an amendment to the effect that no order shall be made under Section 12(1) unless a draft of the order has been laid before, and approved by the Assembly.

General Duty of ESA and the Department.

11. The Committee raised concerns, some arising from points made by NIAMH, that general duties set out in the Bill for ESA and DE did not include duties to contribute towards/or promote (for DE) mental development of children and young persons. The Committee, having received advice that the word ‘mental’ was used in such a context in comparable legislation in Great Britain, agreed to recommend amendments to the Assembly to include such a general duty for ESA and DE in Clauses 2 and 23 respectively.

Controlled Schools Sector Issues.

12. One major issue raised by some Members and stakeholders on numerous occasions during scrutiny of this Bill, and prior to introduction of the Bill, was the issue of the extremely slow progress made in establishing the Controlled Schools Sectoral Support Body. Indeed the need for progress on this was recognised by the Committee as a whole. Some Members alleged that this meant that the controlled sector has not the same opportunity to influence the scrutiny of this Bill as the other sectors with dedicated sectoral bodies had enjoyed. The other big issue raised by some stakeholders and some Members of Committee was the need to progress the Department’s Review of Employment Opportunities for Teaching staff , and, in particular, the Fair Employment exemption for teacher recruitment. The Committee heard that this ‘Review has not yet commenced, due to limited resources and competing pressures’ (within the Department). Linked to this is the need for ESA to establish / review its policy on redeployment arrangements under ESA’s single employer status from 1 January 2010. The Committee agreed the following recommendation:

The Committee requests the Minister to take urgent action to address these issues and find the resources to make immediate progress to resolve them as soon as possible.

Proposed Amendments by the Minister of Education

13. Finally, the Minister brought forward 37 proposed amendments to the Committee in early September 2009. The Committee considered these in some detail with the Departments officials, and agreed to recommend to the Assembly many, but not all, of the Ministers proposals.

Section 1
Introduction

1. The Education Bill (NIA 3/08) (the Bill) was introduced to the Assembly on 25 November 2008 and referred to the Committee for Education for consideration in accordance with Standing Order 33(1) on completion of the Second Stage of the Bill on 8 December 2008. At introduction the Minister for Education (the Minister) made the following statement under Section 9 of the Northern Ireland Act 1998:

“In my view the Education Bill would be within the legislative competence of the Northern Ireland Assembly."

2. On 25 November 2008, just prior to the Bill’s introduction, the Minister made a Statement to the Assembly on the Review of Public Administration in education and the two Bills ‘which will bring about the most fundamental reform of our education system in over 30 years, culminating in the establishment of the Education and Skills Authority on 1 January 2010’. The full Statement, which can be accessed at www.deni.gov.uk/ministers_rpa_statement_251008_-_english-2.pdf, emphasizes that the RPA in education focuses ‘on improving education’ and ‘is not about tidying up administration, nor is it about cost cutting’. In outlining the strategic and economic challenges for education, the Minister concluded that ‘central to this is the raising of standards and tackling inequalities’.

3. The Education Bill (NIA 3/08), referred to as the First Education Bill, states its overall purpose as ‘A Bill to provide for the establishment and functions of the Education and Skills Authority; to make further provision about education, educational services and youth services; and for connected purposes’. The Bill’s Explanatory and Financial Memorandum, which can be accessed at http://archive.niassembly.gov.uk, sets out at paragraphs 7 to 13 the purpose of the Bill and a summary of its main provisions. The Department for Education prepared an Aide Memoir Summary of the Education Bill, which can be viewed at www.deni.gov.uk/summary of the Education Bill as introduced on 25 November 2008. The Bill itself can be viewed at archive.niassembly.gov.uk /legislation/primary/2008/nia308.htm.

Second Stage of the Education Bill

4. The Minister for Education’s opening statement to the Assembly, in moving the Second Stage of the Education Bill on 8 December 2008, again emphasized the urgent need for reform to tackle educational underachievement and inequality. The Minister highlighted two themes that are central to achieving education reform which run throughout the Bill: new structures and new relationships. Also highlighted was the business case for these reforms stating ‘that by the third year, in the first phase of this reform, £20 million per year can be redirected from bureaucracy to front line services’. The outline business case (OBC) for RPA in Education as an Executive Summary and full OBC can be accessed at www.esami.org.uk/docs/executive_summary-for_rpa_in_education.pdf and www.esami.org.uk/docs/esa_obc_final.report . The Minister pointed out ‘the ESA will be founded on democratic accountability’ ‘with the majority of its Members local councillors’. The Minister also highlighted ‘The ESA must be a regional organization, but with a strong local presence and a real focus on local delivery’. Local Managers ‘will be sensitive to and receive input from local Committees comprising, amongst others a number of elected representatives’. Finally the Minister emphasized ‘The Bill aims to maximize the autonomy of schools…’

5. The Chairperson of the Committee for Education at the Second Stage debate on the Education Bill highlighted that “Certain Members of the Committee, including me, have significant concerns about several aspects of…the First Education Bill". The Chairperson outlined key concerns, summarized as follows:

Whether the proposed ESA will actually deliver local services to schools, and the need for clarity on the make-up, role and powers of proposed local committees and how those related to local Managers of the ESA;

The need to examine the body that will represent the controlled schools sector;

On area-based planning, despite the proposed legislation, the Department cannot, or will not stop, individual school sector development proposals for many years, which are contrary to the principles of holistic area-based planning frameworks;

On the ESA as the single employing authority for teachers in grant-aided schools, the Governing Bodies Association (GBA) which represents 52 Voluntary Grammar Schools opposes the proposals and the issue must be addressed. The exemptions of teacher recruitment from Fair Employment legislation must also be addressed sooner rather than later;

The ownership of controlled schools needs to be scrutinized carefully and also the complex issues on the dispersal or disposal of schools, arrangements for the distribution and use of surplus funds and proceeds from the sale of assets; and

The £50 million allocated to setting up the ESA, the projected savings of £20 million in Year 3 and the roles and responsibilities of the second-tier directors proposed for ESA, all raise questions.

Pre-Introduction Committee Scrutiny

6. Prior to the introduction of the Bill, the Committee carried out considerable scrutiny of the Department’s underlying high level Policy Papers proposals for the implementation of the RPA in education and an April 2008 draft of the proposed First RPA Bill. Twenty-two Policy Papers in all can be viewed on the Department for Education website www.deni.gov.uk/index/8-adminof_education_pg/100-review -of-public-admin. Policy Papers 1-18 were issued to stakeholder organizations in November 2006, while consultations on the other remaining Policy Papers were carried out between December 2007 and June 2009. The Committee for Education scrutinized these Policy Papers and later the draft of the Bill via a series of briefings from Department for Education officials and follow-up question and answer sessions. In all, from September 2007 to November 2008, such scrutiny sessions took place at ten formal meetings of the Committee, while officials met with the Committee informally on a number of occasions. The Committee was also briefed by the Chief Executive (designate) of the ESA and members of the ESA Implementation Team (ESAIT) on a number of occasions on plans to establish the ESA. Finally during this pre-introduction period, the Committee heard from a number of key education organizations on their views, issues and concerns on the RPA in education – these included:

  • The Governing Bodies Association (GBA) (May 2008)
  • The Association of School and College Leaders (April 2008)
  • The Association of Education and Library Boards (February 2008)
  • The Voluntary and Statutory Youth Service (January 2008)
  • The Transfers Representatives’ Council (TRC) (December 2007)

and during June 2007 the following organisations outlined their key issues with regard to the RPA in education:

  • Irish National Teachers’ Organization (INTO)
  • National Association of School Masters Union of Woman Teachers (NASUWT)
  • Ulster Teachers Union (UTU)
  • Association of Teachers and Lecturers (NI) (ATL)
  • Governing Bodies Association (GBA)
  • Association of Quality Education (AQE)
  • Comhairle na Gaelscolaíochta (CnaG)
  • Northern Ireland Council of Integrated Education (NICIE)
  • Chief Executives of the Education and Library Boards
  • Council for Catholic Maintained Schools (CCMS)
  • Council for the Curriculum, Examinations and Assessment (CEA)

7. The Minister for Education made a statement to the Committee on the RPA in education and answered Members questions at its meeting of 25 May 2007.

8. The minutes of all these meetings of the Committee for Education can be viewed on the Committee’s website at archive.niassembly.gov.uk/services/committees/3/edu_home.htm.

9. The Committee raised various concerns with Departmental officials at its meetings in September 2007 and informal meetings in October 2007. Concerns were reiterated in the Committee’s letters to the Department in December 2007 and January 2008, with the Department responding to the Committee on 22 February 2008 and 29 April 2008. These responses reflected that an initial draft of the first Bill would be amended in advance of the formal legislative process to address some issues raised by the Committee and certain education stakeholders. The Minister for Education in her Statement to the Assembly on 25 November 2008 set out some changes, notably on:

  • The timetable for implementation in terms of the first and second Bills, commencement of the substantive provisions of the first Act on 1 January 2010 with the establishment of the ESA;
  • Local democratic accountability of the ESA with the majority of Members of the ESA being local councillors and local Committees of the ESA with a number of elected representatives;
  • The first Bill to establish the ESA as the employer for all staff in all grant aided schools; and
  • The second Bill will not include provisions to reform and simplify the composition of boards of governors’ of all grant-aided schools (to preserve the current right of TRC to nominate governors for controlled schools).

10. Members will note that despite these policy changes to the Bill, some Committee Members continued to have a number of concerns with the Bill, as reflected by the Committee Chairperson during the Second Stage debate on the Bill on 8 December 2008 (see paragraph 5 above).

Committee Stage Scrutiny of Education Bill

11. The Committee had before it the Education Bill (NIA 3/08) and the Explanatory and Financial Memorandum that accompanied the Bill.

12. During the period covered by this Committee Stage Report on the Bill, the Committee considered the Bill and related issues at 32 of its meetings. The relevant extracts from the Minutes of Proceedings for meetings, as appropriate, are included at Appendix 1.

13. On referral of the Bill to the Committee after Second Stage, the Committee wrote on 12 January 2009 (see Appendix 4) to key education stakeholders and inserted notices in the Belfast Telegraph, Irish News and News Letter seeking written evidence on the Bill by 20 February 2009.

14. A total of 33 organisations responded to the request for written evidence and copies of these submissions received by the Committee are included at Appendix 3.

Extension of the Committee Stage of the Bill

15. At its meeting of 21 January 2009, the Committee agreed a draft Motion to extend the Committee Stage of the Bill to 30 September 2009. In putting forward the draft Motion to the Committee, the Chairperson emphasized that he wanted to ensure the necessary scrutiny preparatory work on the provisions of the second Bill are not delayed and that the Committee examines the two Bills coherently and holistically. On 2 February 2009, the Assembly agreed to extend the Committee Stage of the Bill to 30 September 2009. The Hansard record of this is available at archive.niassembly.gov.uk/education/2007mandate/education_billmoe.htm .

Committee’s Approach to the Committee Stage Scrutiny of the Education Bill

16. As outlined in paragraphs 13 and 14 above, the Committee received a total of 33 responses from education stakeholders in response to its letter and public notice inviting written submissions to the Bill. Stakeholders were asked to structure written submissions to address specific Clauses of the Bill and its Schedules. Having allowed six weeks before the closing date of 20 February 2009 for written submissions, the Committee decided that Departmental officials should brief the Committee during this intervening period on a number of topics, including some of the main themes of the Bill. These included:

Taking forward the RPA in Education- Legislation Timetable (10 December 2008);

Regional and Sub Regional structure of ESA (14 January 2009);

Sectoral Representation organizations (21 January 2009);

ESA Single Employing Authority role- Employment Arrangements and Review of Employment Opportunities for Teaching Staff (21 January 2009);

Designing Modern Education Services – ESAIT Change Programme (28 January 2009);

RPA- Publicly Owned Schools – Ownership and Representation (4 February 2009);

Area- Based Planning – issues raised from draft RPA Policy Paper 22 (11 February 2009);

Education Bill and related primary and subordinate Legislation, including commencement arrangements (18 February 2009)

Education Bill: Provisions on Employment; Management and Board of Governors; and

Education Bill: Schedules and related Clauses (4 March 2009).

For all the above briefings, written submissions were provided by officials – these are all available at Appendix 3 and 4./p>

17. From 11 March 2009 to 13 May 2009, the Committee took oral evidence from selected stakeholders who had submitted written evidence. These included:

GBA and NI Voluntary Grammar Schools’ Bursars Association (NIVGSA) (11 March 2009);

NI Commission for Catholic Education (NICCE) and CCMS (18 March 2009);

UTU, INTO and NASUWT (25 March 2009);

Chief Executives of the E&LBs (1 April 2009);

TRC (22 April 2009);

GTC NI and NIPSA (29 April 2009);

NICIE and CnaG (6 May 2009); and

AQE and ANIE&LB (13 May 2009).

18. For each stakeholder oral evidence session, Departmental officials provided a specific written Departmental response, which they presented to Committee immediately after the stakeholder(s) evidence sessions. All stakeholder written submissions and Departmental responses to these submissions are available at Appendix 3. Both stakeholders and Departmental officials answered Members questions after their individual sessions. As reflected in the Minutes of Evidence of each of these meeting sessions (extracts reproduced at Appendix 2), Departmental officials were requested to provide specific follow-up information to the Committee.

19. At its meeting of 20 May 2009, the Committee undertook a stocktake of the progress of its scrutiny on the Bill and considered, in particular, a draft letter to the Minister for Education which addressed some of the Committee’s key concerns with the Bill and outstanding information requests. This letter, dated 20 May 2009, responded to the Department’s letter of 5 May 2009, which provided ‘worrying responses on two very central areas of concern to the Committee’ regarding the Bill and highlighted the continuing delay by the Department in providing key further information requested by the Committee (both letters are available in Appendix 4).

20. The Committee also received on 20 May 2009, a briefing from Departmental officials on the proposed Education Advisory Forum (EAF) which is one of the subjects of the Second Education Bill (available in Appendix 4). This briefing addressed Policy Paper 19 (EAF) and the associated equality and human rights screening document, which were out to consultation - closing 11 June 2009.

21. The Committee commenced its clause by clause consideration of the Bill on 27 May 2009 and this continued at all its meetings throughout June, early July and September 2009 – with the exception of 3 June 2009 when the Committee received a briefing from Departmental officials on Area-Based Planning Policy, including a paper on the approach that will be taken on this in the Second RPA Education Bill (again these papers are available in Appendix 4).

22. To assist the Committee with its scrutiny on the individual Clauses and Schedules of the Bill, the Committee received advice from the Assembly’s Examiner of Statutory Rules and advice on several subjects from the Assembly’s Legal Services. Assembly Research and Library Services provided the Committee with research papers on two specific areas. Also, to assist the Committee, its Secretariat prepared a spreadsheet of stakeholder written responses to the Bill, together with the specific Departmental response papers to individual stakeholder submissions, all set against the particular Clauses and Schedules of the Bill. During these clause-by-clause scrutiny sessions, the Committee requested Departmental officials to clarify any points Members had on individual Clauses and paragraphs of Schedules.

23. As with all Committee sessions on this Bill, a Hansard record was taken and the complete Minutes of Proceedings record is available in Appendix 1.

24. The Committee approved the Appendices to this Report on the Education Bill at its meeting on 16 September and additions thereto at its meetings on 23 and 30 September 2009.

Report on the Education Bill

25. At its meeting on 30 September 2009, the Committee agreed its Report on the Bill and agreed that it should be printed.

Section 2
Consideration of the Bill

The Education and Skills Authority (ESA)
(Clause 1)

26. Clause 1 creates the ESA and provides, by means of Schedule 1, detail on ESA Membership, Committees and operations.

27. Stakeholder submissions to the Committee were broadly supportive of the streamlining of the administration of education, with the exception of the bodies representing the voluntary grammar schools who believed that the autonomy of voluntary grammar schools was being diminished.

28. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 1 as drafted.

ESA Membership (Clause 1 and Schedule 1)

29. Schedule 1 sets the number of members of ESA at 7-11 plus a Chair and places a duty on the Department to secure, so far as practicable, that a majority be local councillors. This led to a variety of significant concerns (listed below) being raised by stakeholders and some Committee members, in particular item iv, raised by some Education & Library Boards:

(i) the loss of the experience of the members of the five Education and Library Boards, each of whom had 30+ members;

(ii) the concentration of power in a small number of members;

(iii) reconciling appointment on merit with securing cross-community confidence where a 7-11 membership might lead to one sector or community’s interests being unrepresented or underrepresented at ESA level;

(iv) whether 7-11 members would be sufficient in terms of expertise and members’ workload; and

(v) the need for a majority of members to be local councillors and whether councillors would be influenced by political rather than educational considerations in their role.

30. The Committee raised a number of these concerns by letter dated 6 March 2009 to the Department. The Department responded on 5 May stating:

‘All appointments to the new ESA Board will be made within the regulatory framework set out for all public appointment processes i.e. the Office for the Commissioner for Public Appointments (OCPA) Code of Practice. This process is intended to ensure a fair, open and transparent process that produces a quality outcome with the overriding principle of appointment on merit. It also takes account of the need to appoint boards which include a balance of skills and experience. This process will be fully applied to the eleven appointments to the ESA Board to ensure that the required breadth of knowledge and experience is obtained.

The appointment process includes a person specification, in line with OCPA guidelines, which will address the qualities, experience, background and competencies sought and which will also allow for equal opportunity and diversity. The specification which has been approved the OCPA Independent Assessor (whose role is to assist Ministers in the task of making effective public appointments that command public confidence), will be advertised in a spread of publications.’

31. The Committee raised a number of issues with the Minister, as set out in the table attached to the Committee’s letter of 20 May 2009. In relation to the number of ESA members, the Department’s initial response to the Committee had indicated that the Minister remained of the view that 7-11 was sufficient. However, in the Minister’s letter of 17 June 2009 (see Appendix 4), the Minister confirmed that she ‘wished to reflect further’ on the number of members. The Committee raised this issue with officials at its meeting on 9 September 2009 and was advised that the Minister was still reflecting on any alteration to 7-11. The Committee discussed various alternatives to the 7-11 and officials present agreed to convey the Committee’s consideration of this issue to the Minister. The Committee also raised with officials the Minister’s concern regarding the costs involved in increasing the number of ESA members and the rationale for setting remuneration at the £8,800 + travel and subsistence for five days per month, bearing in mind what the Committee regarded as a fairly onerous workload for the 7-11 members, given that the Minister envisages 11 Local Committees to be chaired by ESA Board Members in addition to at least four other ESA committees and meetings of the ESA itself to attend. Officials agreed to come back to the Committee regarding the chosen level of remuneration.

32. On 16 September 2009 the Minister wrote to the Committee indicating that she would:

‘.. propose to move a further amendment to paragraph 2(1) of Schedule 1, changing the membership range from 7-11, to 11-14 plus the Chairperson.

My intention is to use the full range, and appoint 14 members in addition to the Chair. I am mindful of the Committee’s concern about the potential workload for members. I will keep that matter under review and, if necessary, will use the power in paragraph 2(3) of Schedule 1 to increase the membership. I will continue to engage with the Committee after the establishment of ESA in regards this and other matters as ESA develops in the months and years ahead.’

33. The Committee considered the Minister’s response at its meeting on 16 September 2009. Some Members welcomed the increase in the number of ESA Members to 11-14 and the Minister’s commitment to appoint 14. Some Members still had concerns regarding whether 14 ESA Members was sufficient.

34. At its meeting on 23 September 2009 the Committee considered, and agreed to recommend to the Assembly, a proposed amendment in the following terms:

Schedule 1, paragraph 2, page 31, line 15,

leave out ‘7 or more than 11’ and insert ‘15 or more than 20’.

35. The Committee also considered, but decided not to recommend to the Assembly, a proposed amendment from a Member in the following terms:

Schedule 1, paragraph 2, page 31, line 19,

leave out ‘a majority’ and insert ‘one third’.

Representative of the Community

36. In relation to reconciling appointment on merit with securing cross-community confidence where a 7-11 membership might lead to one sector or community’s interests being unrepresented or underrepresented at ESA level, the Minister’s letter of 17 June stated:

‘Some members also suggested a fundamentally different approach to membership, based on a requirement for the membership to be broadly representative of the community. This would be similar to the requirements on the memberships of the Equality Commission and the Human Rights Commission.

I understand the thinking behind the suggestion, but I do not consider that this is the right approach for the ESA. A representative membership is appropriate for Commissions that are operationally independent of Ministers and the Assembly. However, the ESA will not be operationally independent. Its role will be to implement the policies of the Minister of the day and legislation as passed by the Assembly with scrutiny and oversight by the Education Committee and the Assembly generally. As such, the ESA – like similar authorities for libraries, health and housing - ought to have a membership that reflects its core role of managing and delivering services.

Members also asked for reassurance that the arrangements for appointing members would ensure a balanced membership in terms of political opinion, gender, geography etc. As I have indicated, the appointment arrangements will be based on the principles in the guidance produced by the Commissioner for Public Appointments, including the merit principle. I recognise that it will be important for the ESA membership to have the trust and confidence of education interests and the broader community. With this in mind, the appointment arrangements will reflect the need to ensure balance, insofar as this is compatible with the Commissioner’s Code of Practice and the merit principle. My officials will liaise closely with the Commissioner’s office to ensure that best practice is followed.’

37. The Committee, having had sight of the Office of the Commissioner’s of Public Appointment’s (OCPA) Code of Practice, some Committee Members remained concerned about this issue and asked the Department to provide the Committee with a paper on how the Secretary of State in making appointments to the Human Rights Commission and the Equality Commission for Northern Ireland achieved representative membership.

38. The Department indicated that the Committee would have to approach the Secretary of State to request the necessary information. Accordingly, the Committee wrote to the Secretary of State on 29 June stating:

‘… should be grateful if you could provide the Committee for Education with details of the arrangements by which the Secretary of State secures, ‘so far as practicable’, that such appointments produce a group of appointees which ‘are representative of the community in Northern Ireland’.

39. The Minister of State’s reply dated 27 July 2009 (see Appendix 4) to the Committee stated that all vacancies are filled through full and open competition and appointments made in accordance with OCPA’s code, but highlighted two practical ways in which the Secretary of State tries to fulfil the obligation. These are:

  • at advertising stage, it is drawn to the attention of as wide as possible a pool of potential applicants eg use of a wide range of papers and writing to leaders of main political parties; and
  • at the final selection stage, the Secretary of State can have regard to community background and other relevant information when making selections from ‘appointable candidates’ who have reached this stage in the competition entirely on merit.

40. The Committee further agreed to seek legal advice on whether there was any legal impediment to an amendment to the Bill which would require the Department to ‘so far as reasonably practicable secure …that the members [of ESA], as a group, are representative of the community in Northern Ireland’.

41. The advice to the Committee dealt with a number of issues and included:

  • that the proposed wording of the amendment was within the competence of the Assembly;
  • that the Department and Minister would already be subject to the equality duties in Section 75 of the Northern Ireland Act 1998 in appointing ESA members;
  • the effect of ‘so far as reasonably practicable’ will only produce a representative membership so far as that is feasible and that there may be circumstances where the representative nature of the body as a whole is less than 100%;
  • That the ‘representative’ requirement would be interpreted in the context of the education system in Northern Ireland and the role of the ESA. However, Committee could propose an amendment to the Bill to spell out which features of the community in Northern Ireland it would wish the ESA membership as a whole to be representative of, having regard to ESA’s role; and
  • The number of members and the need to observe the merit principle impose important practical constraints on the ability of the Department to achieve a representative body.

42. The Committee considered the Secretary of State’s response (see Appendix 4), the legal advice to the Committee and an Information Pack on the appointment of ESA Board Members (and associated public notice of 11 August) at its meeting on 9 September 2009. The Committee provided officials with a copy of the Minister of State’s letter and considered a draft Committee letter to the Minister of Education asking her to consider again an amendment to ensure, as far as practicable, that ESA members as a group were representative of the community in Northern Ireland and indicating that the Committee was considering an increase in ESA membership from the 7-11 in Schedule 1, paragraph 2(1)(b). In relation to the former, the Committee highlighted to the Minister that it could also propose an amendment to the Bill to spell out which features of the community of Northern Ireland that it would wish the ESA Membership to be representative of, having regard to ESA’s role. The Committee approved this draft letter as proposals which the Committee was asking the Minister urgently to consider, rather than expressing the endorsed position of the Committee. (See Committee letter of 9 September 2009 to the Minister in Appendix 4).

43. The Committee considered the Minister’s response of 16 September 2009 at its meeting on the same date. The Minister’s letter stated:

‘The Committee also suggested the possible inclusion of a duty to ensure that the membership is ‘representative’, to be accompanied by a definition of ‘representative’. I have emphasised my commitment to a diverse membership, drawn from the broad range of people who have an interest in education and the skills and competences to play a leading role. However, I am concerned that the possible amendment discussed by the Committee would shift the focus of the ESA membership onto sectoral advocacy, rather than the service delivery and support role that I envisage. Sectoral advocacy is important and will, of course, be a function of the various non-statutory representative groups.

You also provided officials with a copy of correspondence from Paul Goggins MP, setting out the approach to appointing the membership of the Equality Commission and the Human Rights Commission. I was interested to note that, notwithstanding the duties on representative membership that apply in respect of those organisations, the appointment process used is the same as that to be adopted for the ESA. Indeed, the existence of the duties does not appear to have materially affected the appointment process, which reflects the guidance of the Commissioner for Public Appointments.

In these circumstances, I am not convinced of the need for the possible amendment as discussed by the Committee for a further duty, and I am not minded to support it’.

44. Some Members indicated that they had concerns in relation to the need for ESA members as a group to be representative of the community in Northern Ireland.

45. In light of some Members concerns on this issue, and on the overall number of ESA Members, the Committee agreed that the Clerk would prepare drafts of the range of amendments to the Bill which had been canvassed during the Committee’s scrutiny of the Bill, so that the Committee could consider these for recommendation to the Assembly, if necessary, when it met on 23 September 2009.

46. At its meeting on 23 September 2009 the Committee considered a draft Committee amendment to paragraph 2 of Schedule 1 in the following terms:

Schedule 1, page 31, paragraph 2(2)(b), line 23, at end insert:

‘and:

(c) that the members, as a group, are representative of the community in Northern Ireland’.

47. A Member proposed that the word ‘proportionately’ be inserted in the proposed amendment before ‘representative’. The Committee also considered a draft Committee amendment to insert a new paragraph 23 at the end of Schedule 1, in the following terms:

Schedule 1, page 36, paragraph 22, at end insert:

“Representative of the community in Northern Ireland"

23.— (1) In this Schedule, and without prejudice to the generality of the words, a membership “representative of the community in Northern Ireland" shall in particular include–

(a) persons with experience of the controlled, maintained, grant-maintained integrated, Irish-medium and voluntary grammar school sectors; and,

(b) persons from the local government districts, where “local government district" has the same meaning as in the Local Government (Boundaries) Act (Northern Ireland) 2008.’

48. The Bill Clerk indicated that the insertion of ‘proportionately’ made it a completely different amendment to the draft amendment on which advice had already been obtained. Another Member indicated that the proposal to insert ‘proportionately’ should have been made earlier to enable the Committee to get advice on the implications of including it and also raised the issue of whether the effect of these two amendments would be that persons from the 26 counties or England and Wales would be excluded from membership of ESA and whether this was lawful in terms of equality law.

49. The Committee agreed to seek legal advice as to the legality of the Committee’s draft amendment and its legality with the insertion of the word ‘proportionately’. The Committee agreed that when advice was received, and if the Committee was satisfied as to the lawfulness of either amendment (possibly with some redrafting), then the Committee may, possibly subsequent to its Report, agree to table a Committee amendment along the lines set out above. In light of the proposed amendment, the Chair proposed, and the Committee agreed, that the Committee register that it is not content with the Schedule 1 paragraph 2(2) as drafted and seek legal advice with a view to tabling a Committee amendment, if legal advice indicated that an amendment of the type being considered was lawful and competent. On 30 September 2009, after considering the legal advice, the Committee agreed to recommend to the Assembly the Committee’s proposed amendment to Schedule 1, paragraph 2(2)(b) as set out below:

Schedule 1, page 31, paragraph 2, line 23, at end insert:

‘and:

(c) that the members, as a group, are representative of the community in Northern Ireland’.

Assembly Disqualification ( Schedule 1, Paragraph 19)

50. Paragraph 19 of Schedule 1 would add the ESA to the list of organisations whose members are disqualified for membership of the Northern Ireland Assembly. Departmental officials briefed the Committee on this issue at the Committee meeting on 4 March 2009, stating:

‘Schedule 1(19) deals with the Northern Ireland Assembly Disqualification Act 1975; its effect is that MLAs may not be members of the ESA. That stems from the need to avoid the potential for a conflict of interest, given that the organisation will be accountable to the Minister and to the Assembly.’

51. In response to questions from Committee Members, Departmental officials indicated that paragraph 19 was similar to provisions for many other public bodies. Some members saw merit in the Department’s reasoning on conflict of interest and accountability. Other Members noted that MLA’s were able to sit on Education and Library Boards. There was general consensus that the demands on MLA’s time would necessarily limit their ability to serve on such bodies, given the anticipated workload of ESA Board members and the potential need to increase the number of ESA members to cope with that workload. The Committee agreed to seek advice on whether there was any legal impediment to MLAs serving on the ESA Board. This advice broadly indicated that it was Paragraph 19 itself which would create an impediment.

52. The Committee considered the advice at its meeting on 26 June 2009 and there was broad acceptance of paragraph 19, subject to a Committee concern that members of the ESA, if they wished to stand for election as MLAs, should not have to resign as a member of the ESA until they were actually elected to the Assembly.

Controlled Sector – Representation and Ownership issues
(Schedule 1)

53. TRC’s written submission (see Appendix 3) on ESA membership highlighted the loss of TRC’s statutory right to nominate representatives on the Education and Library Boards (and formerly nominate to area management boards), a statutory right which reflected the historic transfer by the Church of Ireland, Methodist Church and Presbyterian Church of their schools to the Government. In responding to the TRC’s submission Departmental officials informed the Committee that no sector would have automatic representation rights on ESA, that under the new arrangements Boards of Governors of publicly owned schools would have a potentially greater management role (and TRC would retain its nomination rights to those Boards of Governors) and that to insert a nomination right would be outside the legislative competence of the Assembly.

54. Some Committee Members’ concerns in this area reflected their more widespread concern that the Controlled Sector and the community it served, largely the Protestant/Unionist community, was being disadvantaged by the arrangements envisaged in the Bill and the Second Education Bill.

55. Another key issue of concern to some Committee Members was the envisaged arrangements for Ownership of the Controlled Schools estate. As noted above, ownership of many Controlled Schools premises had been transferred by the Protestant Churches to the Northern Ireland Government, subject to a right of reversion to the Churches if the transferred premises ceased to be used for education. In return the TRC had been granted the right to nominate members of the Education and Library Boards. The Department envisages the transfer of these Controlled Schools premises to the ESA initially in the short term and thereafter, as soon as possible, to a new Statutory Ownership Body.

56. Some Committee Members were concerned that TRC’s nomination rights to the Education and Library Boards, if they could not be replicated for membership of the ESA, should be replicated for the Ownership Body. Alternatively, that the membership of the Ownership Body should reflect those served by the Controlled Schools, the vast majority of whom come from the Protestant/Unionist community - the vast majority of schools in other sectors being owned by trustees committed to the preservation of their sectoral ethos. Departmental officials informed the Committee that neither of these options were possible for the new Statutory Ownership Body as it was outside the Assembly’s legislative competence by virtue of Section 6 of the Northern Ireland Act 1998.

57. These issues were discussed by the Committee at its meeting on 25 February and on 6 March 2009 the Committee wrote to the Department seeking information on the legislative changes required to ensure that the Controlled Sector Ownership Body would be representative of the community served by the Controlled schools. The Department’s response in its letter of 5 May did not provide any information on the necessary legislative changes but simply restated officials’ oral evidence that:

‘A provision which would, in effect, discriminate in favour of one section of the community on the grounds of religious belief could not become law because it would be outside the competence of the Assembly, as defined by Section 6 of the Northern Ireland Act 1998.’

58. At its meeting on 1 April 2009 a Committee Member suggested to Departmental officials that one way of ensuring that TRC retained its nomination rights (and thus that the Controlled Schools Ownership Body reflected the community served by its schools) would be to retain the Education and Library Boards in a limited form solely for the purposes of owning the Controlled Schools estate, with the transfer of all other functions to ESA as provided for in the Bill. The Committee wrote to the Department on 10 April 2009 seeking more detailed comment on this suggestion. The Department’s response on 5 May stated:

‘…the Minister has been made aware of this suggestion, and has indicated that she is not minded to adopt it, as it would be at odds with a key objective of the RPA on the modernization and rationalization of educational administration’.

59. In light of the responses on Section 6 of the Northern Ireland Act and the retention of an element of the Education and Library Boards the Chairperson wrote to the Minister on 20 May 2009 (see Appendix 4) referring to the Committee’s discussion of the Department’s response, stating:

‘ The Committee discussed this at its meeting on 20 May and an important point here is that a mechanism needs to be found to ensure that the Controlled Sector Ownership Body is representative of the community served by the Controlled Sector. Officials raised on 1 April another option to address this by strengthening of statutory linkages between the Controlled Sector Ownership Body and the Sectoral Support Body.’

60. The Minister’s reply of 17 June 2009 (see Appendix 4) stated:

‘…whilst much is made of the issue of ownership, I do not believe that the ethos of controlled schools (or, indeed, any school) is derived from the ownership of the buildings. I have also made it clear that ownership will not convey any advantage or disadvantage to any school or sector in terms of the planning, governance, or funding of education.

That being the case, I believe that calls for a “representative" membership of the ownership body reflect a misunderstanding of the respective roles of the ownership and representative bodies. The ethos of the controlled sector will stem from the values and beliefs of the children, parents, staff and governors of individual schools, and from the representative body that will foster and develop an identity and ethos for the sector as a whole. Therefore, it is the representative body, rather than the ownership body, that requires a representative membership.

In relation to the options for membership of the ownership body, I understand the thinking behind the suggestion to retain Education and Library Boards, which is to allow for a role for the Transferors’ Representative Committee (TRC) in ownership arrangements. I value the contribution made by the TRC in many aspects of the controlled sector, and I would welcome their continued participation in the ESA, the ownership body, or the representative body, if appointed through merit-based arrangements.

However, I cannot agree to the retention of Education and Library Boards. This would undermine RPA policy, by partially retaining arrangements that are clearly no longer fit for purpose. It would be an expensive, complex, and unwieldy approach that could not be justified.

I have carefully considered the Committee’s views, and the responses to the recent public consultation on ownership and representation for controlled schools. A summary of the consultation responses, together with my Department’s views and the policy implications is attached at Annex B. The paper sets out my decisions on controlled schools ownership which are:

There should be a small, fit for purpose, statutory ownership body.

Its functions should be limited to acquiring, holding, and disposing of property as required by the sector, and subject to the approval of my Department.

The body should not have any other functions, such as nominating governors, encouraging boards of governors to take ownership of schools, developing ethos, area planning, or acting as the submitting authority for schemes of management or employment.

Membership of the body should reflect its role – with 4 to 6 members appointed on the basis of merit.

This reflects the concept of the body as a small organisation with a tightly defined remit of exercising stewardship of property. However, I recognise the importance of ensuring that the body is sensitive and responsive to the views of the sector that it will serve. Therefore, I propose to include in the second Education Bill, along with the proposals to establish the body, a clause placing a statutory duty on the ownership body, in exercising any of its functions, to consult the representative body, and take account of its views.’

61. The Committee discussed this issue again and the Minister’s response at its meeting on 26 June 2009 when it was informed by Departmental officials:

‘Now that the Minister has made clear her policy intentions, we are in a position to draw up the provisions on the establishment of the controlled schools ownership body and its membership. Those will be included in the second Bill. We hope to bring those proposals to the Committee before summer recess. I appreciate that that will not give you much time before summer recess to have an initial look at them, but we want to bring all, or at least as many as possible, of the provisions of the second Bill to you before you break up for the summer.’

62. The Committee did not receive sight of any provisions of the second Education Bill until its meeting on 30 September 2009.

63. In relation to the proposed statutory duty above ‘to consult…and take account of its views’ and indeed other similar statutory duties proposed in the Bill, the Committee received legal advice on the meaning and effect of various forms of words such as ‘take account of’ or be ‘ sensitive and responsive to’ or ‘have regard to’ or ‘have due regard to’ governing the extent to which a body exercising a power is required to consult with or consider the views of a third party.

64. The Committee was agreed that the Controlled Sector, having lacked a dedicated sectoral representational or advocacy body (such as CCMS, CnaG, NICIE) was in a much more difficult position in terms of achieving an effective sectoral voice for that sector in the immediate future. The importance of moving quickly to address this deficit was highlighted to Departmental officials at an early point in the Committee Stage of this Bill and on a number of occasions by some Committee Members. In her letter of 17 June 2009 the Minister stated:

‘I appreciate that members are keen to see progress made on the establishment of a controlled sector representative body. I am fully committed to ensuring that each sector has the capacity for an effective representation and advocacy role. I share members’ desire for faster progress within the controlled sector, but I trust that members will understand the challenge of developing such arrangements in a large, diverse sector, with no history of collective self-representation.’

65. Also at the Committee meeting on 26 June 2009, Departmental officials informed the Committee that the first meeting of the steering group for the Controlled Sector sectoral body was scheduled to take place on Friday 3 July 2009.

66. Several members expressed serious disappointment about the lack of progress in establishing a sectoral body for the Controlled Sector, one Member commenting:

“The point is that those other groups have been able to submit a business case, and they have also been able to formulate arguments in relation to where the Bill is going, and so on. Therefore, the controlled sector is at a distinct disadvantage."

67. In relation to the timing of the meeting another Member commented:

“Therefore, it will take place after the Committee’s final meeting before the summer recess. Those of us who have a particular interest in that sector know absolutely nothing about it and do not have a clue what is happening."

68. Another Member commented:

“Given that the first meeting of the group will be next Friday and people are going on holidays in July and August, I suspect that there will not be a huge amount of work done, or progress made, by 1 September 2009."

69. Departmental officials agreed, on 26 June 2009, to provide the Committee with details of who had been asked to attend the meeting.

70. In relation to the obstacle which Section 6 of the Northern Ireland Act presented to legislation, which would enable the Controlled Schools ownership body to be representative of the community served by Controlled Schools, one Member stated on 26 June 2009:

‘It is not good enough to cave in and sweep that issue aside at this stage. Rather than finding a way around the problem, the priority should be to fix that problem and get genuine equality across all sectors. …We have highlighted that as a core and crucial issue, but the Department runs around fixing this, that and the other for everyone else. The core issue for the controlled sector, which is one of a few train-wreck issues, is simply fobbed off. The Department is not giving us the same level of attention and concern as it is giving other sectors. The more I hear, the angrier I get. It is unfair to schools and children in the controlled sector.’

71. In response to some of the concerns expressed Departmental officials stated:

“We recognise the depth of concern around the position of the controlled sector. We also recognise the need to make progress on that, and I openly accept that we could and should be further along the line than we currently are. However, that is not the result of any particular political or policy decision, rather it is because the Department has struggled to find the resources to take forward all the matters that it needs to attend to as a consequence of the legislation."

72. At its meeting on 1 July 2009 Departmental officials informed the Committee that the first meeting of the Controlled Sector Steering Group had in fact taken place on Tuesday 30 June with “a good turnout of approximately 15" with a second meeting tentatively arranged for the third week in August. Officials confirmed that the Minister remained of the same view on the issues of ownership and representation for the Controlled Sector:

‘Many people disagree with the approach and are still concerned that the Catholic trustees will have an advantage because they are representatives of the sector and the legal owners of the schools. We do not agree with that, and we are seeking to persuade stakeholders that there is no advantage to the Catholic education sector that stems directly from ownership. As we have said to the Committee, ownership is not the prize; representation is the prize. No one will take part in the area-planning process because they own schools, but some sectoral organisations — including the controlled school body and the Catholic trustees — will have a place, as of right, in legislation, not because they own schools but because they are the body appointed to represent the interests of a particular sector and because they are the body that has been charged with fostering and developing the ethos of that sector. Therefore representation, not ownership, is the key to influence.’

73. No information on the Controlled Sector Support group’s meetings was received until 16 September 2009, when the Department provided the Committee with lists of those who had attended the first and second meetings of the group. The Committee discussed this issue again at its meeting on 16 September and some Members expressed serious concern that sufficient progress had not been made, on the proportion of representatives from controlled schools and the apparent lack of continuity between those attending the two meetings. Some Members expressed concern that the sectoral body would not be in a position to play its representative role envisaged for sectoral bodies for some time. Officials advised the Committee that the Department could facilitate but not direct, and the process could only move at the pace which the group wanted. Members noted that other sectoral bodies had submitted their business cases and one sectoral body had even advertised for the position of Chief Executive and officials informed the Committee that an appointment had been made. A Member noted that the Controlled Sectoral Body had not yet got to the point of formulating a business case. Officials informed the Committee that a third meeting of the group had now taken place, that a Chairperson had been agreed, and the group had now asked for assistance in preparing a business case and the Department was covering the cost of this. Officials agreed to provide the Committee with a list of those who had attended the third meeting of the group. This was provided on 18 September 2009 and considered by the Committee at its meeting on 23 September 2009 when officials confirmed that the group had appointed Mr Hugh McCarthy as its Chairperson and had adopted a committee structure. Officials informed the Committee that the date of the first meeting of the group and those invited to the first meeting had been the responsibility of the Department. Thereafter the choice of dates for meetings, and who was invited, was a matter for those who had attended the first meeting, on 30 June. Officials acknowledged that, in relation to the choice of 30 June for the first meeting of the group, the Department couldn’t have picked a worse date. The progress made in this area was raised again by the Chairperson on 23 September 2009 (see paragraph 148 below).

ESA Committees (Schedule 1, Paragraph 7)

74. A significant issue for stakeholders (notably CCMS, E&LBs and NICCE) and raised by a number of Committee Members was the need for clarity in the role of committees of the ESA, particularly ‘Local Committees’. Departmental officials relayed the Minister’s view that ‘ESA will be a single organisation, but with a strong local presence. Its Committees and local units will be an integral part of the organisation.’ In response to the Committee’s letter of 20 May 2009, the Minister provided in her letter of 17 June 2009 a more detailed account of the role of ESA Committees and, in particular, Local Committees.

75. The Committee noted that as drafted, paragraph 7 of Schedule 1, merely provide that ‘ESA may establish committees’. Some Committee Members were anxious to be assured that, in particular, Local Committees would exist and have a meaningful role and that the Assembly would, at the very least, have some say over the establishment of and any changes to ESA Committees. At its meeting of 26 June 2009, the Committee agreed ‘in principle’ that an enabling provision should be considered to allow for a regulation to establish ESA Committees, particularly Local Committees which would have a number of public representatives. The Committee also discussed whether or not such a regulation should be subject to affirmative Assembly control. The Minister’s view as set out in her letter of 17 June 2009, is that to specify Committee and local delivery structures in the Bill ‘would be inflexible and make it unnecessarily difficult for the ESA’s local structures to develop and evolve over time, and in response to local need.’ The 17 June letter provided a paper to illustrate the Department’s proposals on ESA Local Area Teams’ role, structure, composition and community input. This included a short section on the role of Committees and Local Committees, with one Local Committee for each one of the eleven new Local Council areas. The paper further specifies that:

‘….These Committees will ensure that the ESA has a strong interface with local communities and that the views of local representatives are communicated to inform decision-making at [ESA] Board level. They will comprise a number of elected representatives and members with local knowledge and expertise - a mixture of educationalists, business sector, community, parents and pupils - to ensure that the full range of views are taken on board. The configuration will be that each local team (other than the Belfast team) will be associated with two local committees.

These Committees will be formally part of ESA and will be chaired by a member of the ESA Board to ensure that views expressed can be fed through to the ESA Board. Where necessary, the Chair will be supported by the head of the Local Team.’

76. However, as reflected above, the Committee agreed ‘in principle’ at its meeting of 26 June 2009 that regulations would bring ‘clarity, certainty and confidence’ on a range of issues in the Bill as this is currently lacking. The Committee wrote to the Minister of Education on 29 June 2009 (see Appendix 4) to inform her of this and to highlight that one of the two areas identified by the Committee to make regulations was ESA Local Committees and this would entail amendments to the Bill to include an enabling provision under which the Department would be required to make a Regulation.

77. At its meeting of 1 July 2009 the Committee agreed to ask the Clerk of the Committee to draft an enabling provision to paragraph 7 of Schedule 1, to provide for regulations on the role and structure of local committees of the ESA. A draft was provided to the Committee for its 9 September 2009 meeting.

78. The Minister’s response of 5 August 2009 (again in Appendix 4) stated:

‘In my letter of 17 June, I spelt out the rationale for my decision not to specify the local delivery structure of the ESA on the face of the Bill. The same rationale would apply to the introduction of regulations in this area. The ESA’s local structures will develop and evolve over time and in response to need, and it would be difficult to accommodate this if the detailed structures were specified in legislation. My letter of 17 June included a paper illustrating DE’s proposals for local area teams and for local committees.

79. The Committee considered the subject of ESA Committees again at its meeting of 9 September 2009 and the draft wording for the amendment. The Committee also considered and approved draft wording on this issue for inclusion in the Committee’s letter to the Minister suggesting an enabling provision and emphasising that the Committee’s preference for reaching agreement with the Minister on this issue. (see Committee’s letter of 9 September 2009 to the Minister of Education in Appendix 4).

80. The Committee considered the Minister’s response on this issue at its meeting on 16 September 2009. The Minister’s letter, received that morning, stated:

‘The Committee has quite rightly emphasised the need for trust and confidence in the detailed arrangements for the ESA. I understand your desire for clarity and certainty on these matters, and I would like to accommodate the Committee’s wish to scrutinize and contribute to the ongoing development of the ESA. However, in considering how best to achieve this, I am not convinced that the suggested regulatory approach would be effective.

An initial committee structure for the ESA will, of course, be in place from the outset. However, the development of the organisation and the transformation of the services that it provides will involve a rolling programme of change that will take place over a number of years. Regulating the local structure of the organisation in the way suggested would require us to anticipate all of the changes that will take place over the next three to five years. I do not consider that this would be either practicable or desirable. The regulations, far from providing certainty and clarity, may merely impose a solution with no guarantee that it will be fit for purpose, or that it will meet evolving local need.

I believe that a much better alternative would be for the Committee, using its powers, to scrutinize, oversee and contribute to the development of the ESA, in conjunction with my Department. It would be both desirable and necessary to ensure that the Department and the ESA facilitate the Committee in such a role.’

81. As indicated above the Committee had agreed that the Clerk should prepare draft Committee amendments on a range of issues which had been canvassed during the Committee’s scrutiny of the Bill, so that the Committee could consider these for recommendation to the Assembly, if necessary, at its meeting on 23 September 2009.

82. At its meeting on 23 September 2009 the Committee considered and agreed proposed amendments to Schedule 1, paragraph 7 in the following terms:

Schedule 1, page 33, paragraph 7, line 7,

after ‘may’ insert:

‘to the extent that the Department may by regulations provide,’

Schedule 1, page 33, paragraph 7, line 8

insert new sub-clause (2) as set out below and re-number existing sub-clauses (2) and (3) accordingly:

‘(2) Regulations made under sub- paragraph (1) shall include those functions which may be exercised by each committee.’

83. The Committee agreed to recommend to the Assembly that the Schedule be amended as set out above.

Functions and General Duty of ESA (Clause 2)

84. Clause 2 describes the ‘Functions and general duty of ESA’ in replacing the Education and Library Boards, CCMS, CCEA, Youth Council for Northern Ireland and Staff Commission.

Nursery and Pre-School Provision (Clause 2)

85. Some Education and Library Boards highlighted (see Appendix 3) the lack of any reference to nursery and pre-school provision in Clause 2. Departmental officials advised the Committee that these came within the meaning of the deliberately broad term ‘educational services’, used in Clause 2 to describe the ESA’s duties.

Youth Services (Clause 2(2))

86. A number of stakeholder submissions highlighted the separation out of ‘youth services’ in Clause 2(2)(b) from ‘primary and secondary education and educational services’ in Clause 2(2)(a). Departmental officials explained that:

‘existing legal definitions set the age boundary for these services at 18 (19 in the case of secondary education). However, youth services are provided for people up to the age of 25. If the provisions were combined as suggested, it would be necessary to limit youth service provision to people not older than 18.’

87. Departmental officials agreed with stakeholder submissions that Clause 2(2)(b) should be amended to reflect the role of youth services in contributing to the development of young persons (social, moral etc) in terms similar to those used for primary and secondary education. The Department’s proposed ‘technical’ amendment received by the Committee on 4 September 2009 and considered by the Committee at its meeting on 16 September 2009. The amended Clause 2(2)(b) (with amendment in bold type) would read:

(2) It shall be the duty of ESA (so far as its powers extend)—

(a) to contribute towards the spiritual, moral, cultural, social, intellectual and physical development of children and young persons in Northern Ireland and thereby of the community at large by ensuring that efficient and effective primary and secondary education and educational services are available to meet the needs of such children and young persons;

(b) to ensure the provision of efficient and effective youth services that contribute towards the spiritual, moral, cultural, social, intellectual and physical development of those for whom those services are provided;

88. The Committee considered this proposed amendment at its meeting of 16 September 2009 and indicated that it was content with the Departmental amendment as far as it went. However, in this context a Member raised the issue of including in 2(2)(a) and 2(2)(b) a possible amendment which had also been proposed in relation to Clause 23. In relation to both 2(2)(a) and 2(2)(b) (assuming that 2(2)(b) is amended as the Department proposes), the suggested amendment was the insertion of the word ‘mental’ after the word ‘social’ . Officials reiterated the concerns which were expressed by the Department in its letter of 15 September 2009 which stated:

‘The Minister recognises that ESA clearly has an important role to play in the holistic development of children. However, the Minister is also of the view that the statutory duty for mental health must rest with DHSSPS which has responsibility for all health issues. It would not be appropriate to place overlapping duties on two Departments and the Minister does not intend to move the suggested amendment.’

89. However, the Committee remained broadly in favour of the insertion of the word ‘mental’ as indicated above and the Clerk was asked to prepare a draft Committee amendment for the Committee to consider at its meeting on 23 September 2009. Officials indicated that if the Committee recommended to the Assembly that such a duty were to be imposed on ESA in Clause 2, then it would be appropriate for Clause 23 (which substitutes a new Article 3 in the 1989 Order) to be amended to similar effect.

90. At its meeting on 23 September 2009, the Clerk informed the Committee that legal advice indicated that the word ‘mental’ was used in comparable legislation in Britain. The Committee noted the Minister’s letter of 22 September 2009 and that she was writing to the Minister for Health, Social Services and Public Safety (HSSPS) to seek his views regarding her proposal ‘to place a statutory duty on ESA to cooperate with the Regional Health and Social Services Board and Health and Social Services Trusts in promoting the mental health of children and young people.’ The Minister indicated that if this approach commanded support, then she would be prepared to table an amendment to that effect. Given the timing of the Minister’s proposal, and uncertainty as to the DHSSPS response, the Committee considered, and agreed to recommend to the Assembly proposed Committee amendments in the following terms:

Clause 2, page 1, paragraph (2)(b), line 15, at end insert

‘that contribute towards the spiritual, moral, cultural, social, mental, intellectual and physical development of those for whom those services are provided;’

Clause 2, page 1, paragraph (2)(a), line 10,

after ‘social’ insert ‘mental’.

ESA treatment of schools whose premises are vested in ESA (Clause 2(3))

91. The potential for conflict of interest arising out of the ownership of Controlled Sector schools by ESA was highlighted by the duty in Clause 2(3) to treat schools on the same basis regardless of whether their premises are vested in the ESA or not. This was raised as a concern in the submission from CCMS. The Department considered that this concern was adequately addressed by the explicit duty in Clause 2(3) and the decision to minimise the period of ESA ownership before vesting publicly owned schools in a separate body.

Duty to encourage and facilitate the development of Irish-medium and Integrated education (Clause 2)

92. CnaG sought an amendment to Clause 2 of the Bill to place a duty on ESA ‘to encourage and facilitate the development of Irish-medium education’, reflecting the duty under Article 89 of the Education (Northern Ireland) Order 1998. NICIE’s written submission noted that there was no mention in the Bill of the duty to encourage and facilitate integrated education as in Article 64 of the Education Reform (NI) Order 1989.

93. Departmental officials indicated to the Committee on 6 May 2009 that the Minister agreed with the CnaG proposal and was considering how this could be reflected in legislation; however, no wording was provided in the annex of proposed Departmental amendments to the Bill with the Minister’s letter of 17 June 2009 (see Appendix 4).

94. Bearing in mind the limitations on the Assembly’s legislative powers, the Committee asked Departmental officials whether the Assembly had powers to legislate to impose a duty on the ESA to encourage and facilitate Irish-medium education. Officials indicated they had no legal advice to the contrary.

95. In response to NICIE’s submission, the Department noted the views expressed and that the current duty to encourage and facilitate integrated education would continue to apply, but there was no suggestion that the Minister was considering how the existing statutory duty towards integrated education could be reflected in the Bill, which the Minister was considering in relation to Irish-medium education.

96. The Committee raised this issue at its meeting on 6 May 2009 with representatives of CnaG and NICIE and considered the rationale for the statutory duties and how this related, in terms of equality, to other sectors where no such duty existed. One Committee Member’s suggestion of a duty on ESA to encourage and facilitate the development of all sectors of education received a cautious welcome from CnaG representatives.

97. The Committee received the specific terms of the Department’s proposed wording for CnaG’s amendment on 4 September 2009 inserting a new Clause 2(4A) placing a duty on ESA to encourage and facilitate Irish Medium Education in the following terms:

‘(4A) ESA shall ensure that its functions relating to grant-aided schools are (so far as capable of being so exercised) exercised with a view to encouraging and facilitating the development of education provided in an Irish speaking school (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006).’

98. The Committee considered this proposed amendment at its meeting on 16 September 2009. Some Members expressed concerns that this amounted to favourable treatment and raised equality issues. Officials indicated that the purpose was to ensure that ESA had regard to an existing statutory duty on the Department and not to disadvantage any other sector. A Member in favour of the amendment indicated that it was not a question of the Irish-medium sector attempting to ‘lord it over’ other sectors. However, some Members indicated that they were not content with the Department’s proposed amendment to this Clause.

99. At the Committee’s meeting on 23 September 2009 the Committee decided not to recommend to the Assembly the proposed Departmental amendment which would have inserted new Clause (4A).

ESA – Promoting the achievement of high standards of educational attainment (Clause 2(4))

100. Clause 2(4) states:

‘ESA shall ensure that its function relating to grant-aided schools are (so far as they are capable of being so exercised) exercised with a view to promoting the achievement of high standards of educational attainment.’

101. The Committee raised with Departmental officials the rationale for the inclusion of the qualifying words in brackets, ‘(so far as they are capable of being so exercised)’, whether they were necessary and whether the inclusion of the words would allow the ESA to ‘opt out’ of its responsibility to promote the achievement of high educational standards. Officials informed the Committee that the words did not represent an ‘opt out’ and had been inserted by Legislative Counsel to achieve precision:

‘Counsel may argue that without those words the ESA would be under a duty to carry out grass-cutting in a manner that is calculated to raise standards of educational attainment, which, by definition, is a duty that it could not possibly meet.’

102. The Committee still had some concerns regarding the wording and agreed to ask Departmental officials to seek clarification from Legislative Counsel on the reasons and need for the qualifying words. Departmental officials informed the Committee at its meeting on 16 September, Legislative Counsel remained very firmly of the view that, ‘(so far as they are capable of being so exercised)’ should remain as its omission would impose an obligation on ESA that it could not fulfil.

103. The Committee on 23 September 2009 agreed to recommend to the Assembly that it was content with Clause 2 in its entirety as amended as proposed in the Committee’s amendments set out above.

ESA to be single employing authority for grant-aided schools (Clauses 3-12)

104. Clauses 3-12 of the Bill would bring into effect radical change to current employment arrangements within the education system. Staff employed in schools by CCMS, Education and Library Boards and the Boards of Governors of Voluntary Grammar, Irish Medium and Integrated schools would become employees of the ESA; as would many of the non-school based staff employed, for example, within the Education and Library Boards, CCEA, Staff Commission.

105. The Bill proposes a system of Schemes of Employment submitted to ESA for approval by the ‘submitting authority’ of each school. As set out in Clause 3(2)(a), the submitting authority is to be the trustees of the school in the case of a Catholic Maintained School and the Board of Governors in respect of all other schools. As detailed in the Department’s paper on ‘Employment Arrangements’ (see Appendix 3) discussed at 21 January 2009 Committee meeting, under the employment scheme the ESA would delegate to Boards of Governors day-to-day authority and responsibility for the appointment and management of staff. Subject to Boards of Governors exercising their delegated powers in accordance with the agreed scheme of employment, the ESA would be obliged to implement the decisions of Boards of Governors:

‘The ESA could not lawfully refuse to put into effect any proper decision of the board of governors.’

Submitting Authority (Clause 3(2))

106. CnaG sought an amendment to the Bill so that the owners or trustees of Irish Medium Schools would be the submitting authority, rather than the Board of Governors; essentially the same arrangement as proposed for Catholic Maintained Schools.

107. Annex C to the Minister’s letter of 17 June 2009 (see Appendix 4) stated that a Departmental amendment is proposed:

‘to redefine the submitting authority in all cases as the owners or trustees of schools, with an option to delegate the functions to boards of governors This reflects the views of a number of stakeholders, who suggested that school owners should be given the submitting authority role, so that they can ensure that the ethos of the school is reflected appropriately in the schemes of management and employment.’

108. However, at its meeting on 26 June 2009, the Committee pointed out to Departmental officials that the Minister’s letter of 17 June also stated, in relation to the Controlled Sector ownership body:

‘The body should not have any other functions, such as nominating governors, encouraging boards of governors to take ownership of schools, developing ethos, area planning, or acting as the submitting authority for schemes of management or employment.’

109. Departmental officials clarified that the latter stated the Department’s position incorrectly and, that the ownership body for controlled schools would not be a submitting authority and went on to explain what the Department had in mind:

‘The different route that we propose is that the submitting authority responsibility for controlled schools will lie with the boards of governors. We propose that boards of governors may choose to have the controlled school representative body act on their behalf and draw up the schemes of management and schemes of employment, but that, formally, the submitting authority will be the boards of governors.

Some might argue that that arrangement is different from the arrangements that will apply to other sectors. The arrangement is different in law, but it would get the controlled sector to the same initial policy objective by a different route. The group of people who are responsible for fostering and developing the ethos of the sector will draw up the employment arrangements that will operate in that sector.’

110. The Committee received the specific terms of the proposed amendment to Clause 3(2)(a) on 4 September 2009 in the following terms:

‘leave out sub-paragraphs (i) and (ii) and insert—

‘(i) in the case of a controlled school, the Board of Governors of the school;

(ii) in the case of a voluntary or grant-maintained integrated school, the trustees of the school or (if the trustees so determine) the Board of Governors of the school; and’

111. The Committee considered this proposed amendment at its meeting of 16 September 2009. Some Members indicated that they were not content with the proposed amendment.

112. At its meeting on 23 September 2009 the Committee agreed not to recommend to the Assembly that Clause 3(2)(a) be amended as proposed by the Department. The Committee also agreed that it was not content with Clause 3 as drafted.

Change in ‘employer status’ (Clause 3)

113. Strong objections were raised to the proposed change in employer status by NICCE on behalf of the Catholic Maintained sector and by GBA/AQE/NIVGSBA on behalf of the Voluntary Grammar Schools. While GBA’s concerns related to Boards of Governors’ historic independence and the underlying ‘voluntary principle’, both GBA and NICCE raised concerns with the Committee on 18 March 2009 (see Appendix 3) in oral evidence sessions that the loss of employer status in law would limit the ability of their respective sectors to maintain their schools’ distinct ethos and defining character.

114. Other stakeholders, in particular the trade unions, welcomed the concept of a single employing authority. INTO’s submission commented specifically on the issues of submitting authority and ethos:

‘INTO welcomes the establishment of a single employing authority for all teachers. This will bring teachers onto a par with teachers in Catholic Maintained Schools – with benefits in the employment, recruitment and redeployment of teachers and support staff. INTO urges the Education Committee to support the establishment of one single employing authority.

INTO has a concern about the new creation of a ‘submitting authority’ clause 5 (i) . There is a disparity between Controlled schools and Catholic grant aided schools. In schools other than Catholic, the submitting authority is the Board of Governors of the school – in catholic schools the submitting authority is the trustee governors only. INTO is of the view that all Boards of Governors –with no distinction for spurious ethos - should be ‘submitting authorities.’

115. In considering stakeholders’ concerns, the Committee was mindful of the Department’s briefing of 21 January 2009 which set out that the role of the Board of Governors was to inform ‘ESA, giving full details of procedures followed, and the reasons for the decision’. ESA’s role was to ‘ratify the procedures followed by the board of governors and the soundness of its decision’.

116. Both NICCE and GBA were very concerned that the ESA, as the employer in law would ultimately have the final say in relation to the terms of the scheme of employment, the decision to dismiss staff and in defending or settling any litigation arising out of issues relating to the ethos of the school. Their concerns arose because they believed there situations may well arise where ESA, perhaps on grounds of expense or because it is a secular public body, may not wish to defend litigation which a Board of Governors might reasonably regard as fundamentally challenging to the ethos and defining character of its schools.

117. The Committee considered this issue at length in discussion with NICCE, GBA and Departmental officials. One of the GBA’s witnesses, in his evidence to the Committee at its 11 March 2009 meeting, stated:

‘I have sat in tribunals at which the CCMS held a different view from the board of governors of a Catholic maintained school. Such tension is pretty

118. A senior Departmental official advised the Committee at its meeting on 21 January 2009 on an important aspect of their briefing paper:

‘The paper also attempts to anticipate some of the questions that Committee members may have. The first of those is that if the ESA is formally the employer in law, could it initiate action without waiting for a board of governors? The answer to that is yes, but only in very serious and extreme circumstances.’

119. CCMS expressed concern in its written submission “at the lack of clarity in the use of the terms ‘Employing Authority’ and ‘Employer". The Chief Executives of the E&LB’s at the Committee’s meeting on 1 April 2009 (see Appendix 2) commented on the lack of certainty as to the current employment relationship between staff in schools, Boards of Governors and the Education and Library Boards. The Chief Executive of BELB stated:

‘The Education Reform (Northern Ireland) Order 1989 created the concept of the employer and the employing authority; that has caused many problems in the system over the past 20 years, and we hoped that the Bill would clarify them. However, the Bill seems to perpetuate the confusion. The ESA is to be “the employing authority", but clause 3(1) implies employer status. The former perpetuates the current problems; the latter simplifies the situation and, in effect, makes boards of governors subcommittees of the ESA under its control. There needs to be clarity on this issue and on contracts of employment and the liability associated with them.’

120. The Department responded to CCMS and NICCE with its critique of their arguments (see Appendix 3). NICCE formally responded to this critique in the form of a letter to the Department in June 2009 and Reply, together with supporting documentation. (see Appendix 4). This provided a comprehensive analysis of the legal relationships setting out the limitations on the powers of Boards of Governors:

(i) Schemes of employment must be approved by the ESA and cannot come into force until they have been approved by the ESA;

(ii) In preparing an employment scheme, the submitting authority must take into account any guidance issued by the ESA;

(iii) The ESA has an absolute discretion as to what provision it includes in such guidance;

(iv) The ESA further has the power to make its own employment scheme for a school which has not submitted a scheme that accords with the guidance issued by the ESA; and

(v) Where the ESA is of the opinion that a decision of the board of governors which falls to be taken within an employment scheme was taken otherwise than in accordance with that scheme, the ESA may require the board of governors to reconsider the matter ad infinitum.’

121. The NICCE Reply also highlighted a board of governors’ rights and ESA’s rights in the event of litigation and the key difference between ESA and CCMS from the perspective of the Trustees of Catholic schools, namely that CCMS was a body committed to ensuring the ethos of Catholic schools and directly linked to the Trustees.

122. The section on the proposed employment arrangements in NICCE’s Reply to the Department concluded:

‘It is a matter of great concern to the Trustees that the Department has failed to recognize the impact of the proposed changes. In place of detailed legal analysis, the response of the Department offers blandishments and apparent reassurance, which does not withstand proper legal scrutiny.’

123. The Committee had already agreed at its meeting on 1 April 2009 to seek its own legal advice on the legal relationships which the Bill would create between staff, boards of governors and the ESA, having heard about the problems which the concepts of ‘employer’ and ‘employing authority’ had created for the Education and Library Boards and the concerns raised by NICCE and GBA.

124. This advice highlighted that Regulations had been made by the Department of Education in 1991 to give CCMS a statutory right to be added as a party to any litigation brought against a board of governors of a Catholic Maintained school, indicating that the employment relationships required some clarification in that situation. The Committee viewed this as significant because the arrangements proposed in the Bill were regularly cited by Departmental officials as having been modelled on CCMS, which is the employer in law of teachers in Catholic Maintained Schools, with authority delegated to boards of governors. Advice to the Committee also noted that while ESA and boards of governors might well both be sued or indeed made a party to proceedings, this was different from having an absolute legal right to defend such proceedings.

125. The Committee wrote to the Department seeking its comments on some issues arising from its advice. The Department’s response was considered, alongside other information received from the Department, by the Committee at its meeting of 16 September 2009 - see paragraph 106 onwards.

126. In the Department’s written response to the Education & Library Boards’ submissions on the Bill and at the Committee meeting of 1 April 2009, it stated that the Minister was considering the need for subordinate legislation to govern the content of the employment schemes, and continued:

‘The enabling provision in the Bill could state that regulations may, amongst other things:

  • specify matters that must be included in schemes of employment;
  • specify the form in which such schemes must be drawn up;
  • specify functions that must be carried out by boards of governor and functions that must be carried out by the ESA, and functions that may be carried out by one or the other (according to the schemes);

A further provision could be included, permitting a board of governors to make a complaint to the Department if it believed that the ESA had acted in breach of the scheme of employment ; and for the Department, if it were satisfied that a breach had occurred, to use its power of direction (article 101 of the Education and Libraries (Northern Ireland) Order 1986 to remedy the matter.’

127. It should also be noted that in the Department’s response to NICCE’s original submission to the Committee, it stated that the Department agreed that the schemes of employment should appropriately reflect the ethos and defining character of schools. However, when the Committee wrote to the Minister on 20 May 2009 it had not had sight of any guidance or model schemes of employment or any draft regulation which might have reassured stakeholders that the ethos of their schools would be adequately reflected in the model employment schemes.

128. In considering the issue of religious ethos in schools the Committee had the benefit of a research paper commissioned from Assembly Research and Library Services entitled: ‘Religious Ethos in Schools in Scotland, England and Wales and the Republic of Ireland’(Appendix 4).

129. The Committee noted the absence of any reference in the Minister’s letter of 17 June 2009 to subordinate legislation to clarify the employment relationships arising from the Bill. The Committee, at its meeting of 26 June 2009, agreed ‘in principle’ that the Bill should include an enabling provision which would allow the Department to make regulations to bring ‘clarity, certainty and confidence’ to the employment relationships to be created by the Bill. The Committee wrote to the Minister of Education on 29 June 2009 (see Appendix 4) highlighting the Committee’s position on this and other issues.

130. The Committee heard from Departmental officials at its meeting of 1 July 2009 that:

‘Having given further consideration to the Committee’s concerns about the need for regulations in that area, the Minister is persuaded by the argument that such enabling power and regulations would be a sound approach, and she will be proposing amendments to that effect. We will endeavour to let the Committee have a paper on the scope of the regulations in the next day or two and the wording of draft regulations as soon as we can after that. The paper will be detailed, and I hope that it will give members a clear picture of the content of the regulations and the amending clauses.’

131. The Minister wrote to the Committee Chairperson on 5 August 2009 (see Appendix 4) stating:

‘You will now be aware that I have agreed the Bill should include an enabling power (not a duty) for regulations to be made on model schemes of employment and guidance on employment schemes. As requested at the Committee’s meeting on 1 July 2009, a paper on the employment scheme regulations will be prepared for the Committee.’

132. The Committee considered the Minister’s letter at its meeting of 9 September 2009 and approved draft wording for inclusion in a letter to the Minister welcoming the Minister’s agreement on this enabling provision and asking the Minister to signal her intention on the timescale for this Regulation.

133. The Committee received the specific terms of the Department’s proposed amendment to Clause 4 on 4 September 2009 in the following terms:

‘at end insert —‘(4) The Department may by regulations make provision as to the form and content of employment schemes.’

134. The Department’s received the Department’s employment paper, with draft Regulations attached after its meeting had concluded on 10 September 2010 (see Appendix 4). The Committee considered this paper, the enabling provision to be inserted in Clause 4 and the draft Regulations in general terms at its meeting on 16 September 2009. The Committee noted that the draft Regulations are based very closely on the provisions of Schedule 2 to the Education (NI) Order 1998, which it is proposed will be repealed by Schedule 8 of the Bill. The Committee raised no issues in relation to Clause 4 as amended by the Department’s proposed amendment.

135. At its meeting on 23 September 2009 the Committee decided not to recommend to the Assembly that Clause 4 be amended as proposed by the Department. The Committee went on to agree that it was not content with the Clause 4 as drafted.

136. Following on from the insertion of the enabling provision for employment regulations the Department proposed to amend Clause 6 of the Bill to ‘ensure that submitting authorities should comply with these regulations on employment schemes’. The amended Clause 6(1)(c) would then read (new text in bold type):

Reserve power of ESA to make employment scheme

6.—(1) Where—

(a) the submitting authority …

(b) the submitting authority …, or

(c) it appears to ESA that a scheme submitted by the submitting authority of a school as required by subsection (1)(b) of section 5 does not accord with any guidance issued by ESA under section 5(1)(b) does not comply with regulations under section 4(4) or does not accord with any guidance issued by ESA under section 5(3) and cannot (in either case) be made to do so merely by modifying it,

ESA may make an employment scheme for the school …’

137. The Committee considered this amendment to Clause 6(1)(c) at its meeting on 16 September 2009 and raised no issues in relation to it. At its meeting on 23 September 2009 the Committee considered the Department’s proposed amendment to Clause 6 again. Having decided not to recommend the Department’s proposed amendment to Clause 4, the Committee decided not recommend the Department’s consequential proposal to amend Clause 6, set out above. The Committee went on to agree that it was not content with Clause 6 as drafted.

Development of Employment Schemes for Grant-aided Schools (Clause 4)

138. Clause 4(1) outlines the key provisions within employment schemes which would apply to every grant-aided school.

139. WELB’s submission expressed concern that the requirement to submit schemes of employment to the ESA would ‘place an additional burden on Boards of Governors, and create scope for confusion and inconsistency’.

140. NEELB’s submission noted:

‘There is an issue in relation to the availability of model schemes …The Board assumes that these schemes/guidance are presently under development.’

141. The Department’s responses stated:

‘The Department does not consider that the requirement to develop employment schemes will be unduly burdensome for submitting authorities, as model schemes will be made available for schools to adopt if they wish..

In relation to the potential for delay in approving schemes, the Department will consider the need for a transitional provision or amendment to apply model schemes to schools until the schools’ own schemes are approved.’

142. At the Committee meeting of 26 June 2009, the Chairperson suggested to Departmental officials that if the Department were to produce a ‘high delegation’ model scheme this would offer some reassurance to stakeholders such as NICCE and GBA. Officials responded:

‘We could do that. However, a better approach is the one that we are minded to follow, which is that the Department, or the ESA implementation team (ESAIT) on the Department’s behalf, could draw up the core of the scheme - the mechanistic procedural bits at the core of it — which would set down how a selection committee or appointment committee would be constituted and convened and the procedures that it would operate. However, we would then tell the voluntary grammar sector and the Catholic education sector to take that core of a scheme and turn it into something that would meet their needs and requirements. In particular, their main concern is that those employment arrangements would, somehow, be contrary to the ethos of their sector, so we would ask them to provide us with a draft model scheme that they feel contains sufficient safeguards to protect the ethos of their sector or education type.’

143. In response to a question from the Chairperson, Departmental officials indicated that a request on the basis of the approach outlined above had already been made to stakeholders.

144. At the Committee’s meeting of 1 July 2009, it was suggested that guidance and model schemes could be put in regulations. Departmental officials indicated that this was not the Minister’s intention. The Minister intended to ‘involve stakeholders in the development of guidance and model schemes, in order to provide the necessary clarity and certainty’.

ESA as single employer and redeployment of staff

145. In the Second Stage debate on the Bill on 8 December 2008, the Chairperson of the Committee noted:

‘The Education and Skills Authority’s single-employer status should facilitate wider redeployment of teachers than is the case at present. However, the exemption of teacher recruitment from fair employment legislation militates against that notion. The Committee has confirmed that the underlying policy on teachers’ exemption rests with the Department of Education. That issue must be addressed sooner rather than later’

146. At the Committee meeting on 21 January 2009, the Committee heard from Departmental officials regarding the Department’s Review of Employment Opportunities for Teaching Staff. Some Committee Members raised the issue of the fair employment exemption again with officials. Departmental officials reminded Members that ‘even if the exemption were removed…it is likely that the requirement to possess a certificate could continue to be lawfully applied in relation to some posts where it is a genuine occupational requirement of the post. Officials agreed to provide the Committee with a range of factual information which the Committee set out in its letter to the Department of 23 January 2009, including:

‘Forecasts of the number of teaching vacancies likely to arise over the next three years (analysed by school type and sector);

estimating the proportion of those vacancies for which a certificate in religious studies is likely to be an eligibility criterion; and

identify the routes by which teachers may obtain a certificate, either as part of their initial teacher education, or subsequently.’

147. The Department of Education in its letter of 5 May 2009 informed the Committee that:

‘It is not possible to give a timescale at present. The Review has not yet commenced, due to limited resources and competing pressures.’

148. At the Committee’s meeting on 23 September 2009, the Chairperson proposed that the Committee’s Report includes a recommendation to the Minister of Education on the need for urgent action to address a number of issues adversely affecting the controlled sector, which had been brought to the attention of the Committee during its scrutiny of this Bill, namely:

  • the extremely slow progress that has been made in establishing the Controlled Schools Sectoral Support Body. This lack of progress has meant that the Controlled Sector has not had the same opportunity to influence the scrutiny of this Education Bill as the other sectors had. This begs the question of what might have been achieved had there been an effective Controlled Sector Body/Group up and running 6- 8 months ago;
  • the need to progress the Department’s Review of Employment Opportunities for Teaching Staff, and, in particular, the Fair Employment exemption for teacher recruitment – as there may be a differential impact on employment opportunities for teachers working in different sectors arising from the current requirement to have a certificate in religious education for some teaching posts in some schools; and
  • the impact of the same requirement for a certificate in religious education on alternative employment opportunities that will be open to teachers at risk of redundancy, working in the different sectors, when all teachers are employed by a single employer, namely ESA, and new re-deployment arrangements will need to be put in place.

RECOMMENDATION

The Committee requests the Minister to take urgent action to address these issues and find the resources to make immediate progress to resolve them as soon as possible.

Salaries etc of staff (Clause 11)

149. The submission from WELB and GTCNI noted that Clause 11 would adversely affect arrangements for the common funding formula; GTCNI stated:

‘This article relates to the payment of salaries in grammar schools. Of concern to officers is the apparently clumsy drafting of paragraphs 5 and 6. Paragraph 5 appears to expressly prohibit the payment of salaries from the budget share of any grant aided school. Note the definition of “grant-aided" in the 1986 Education and Libraries Order (NI) is as follows:

“grant aided" when used in relation to a school, institution or establishment, means a school, institution or establishment, as the case may be, to or in respect of which grants are made under this Order, not being a college of education.’

It would seem therefore that the provision as para 5 of Article 11 effectively withdraws salaries from the LMS formula funding regime of any school which is surely not the intention.

Paragraph 6 then notes that “the common funding scheme may include provision" by way of maintenance grant under Article 61 (2) (b) of the 1998 Order. The use of the term “may" suggests that it is at the discretion of the Department of Education. All in all the drafting of these articles seems at best vague and at worst possibly contradictory.’

150. The Minister’s letter of 17 June 2009 addressed these concerns regarding Clause 11 in Annex C (see Appendix 4) and stated that a Departmental amendment is proposed, similar to the provisions in 11(5) and (6) to ensure that salaries monies could be included in the delegated budgets for controlled and maintained schools. The Committee considered this proposal at its meeting on 1 July 2009 and had no difficulty with the proposal as outlined. The Committee received the specific terms of the proposed Departmental amendment on 4 September 2009 and considered this at its meeting of 16 September 2009. The amendment proposed:

Clause 11, page 6, line 23, leave out subsection (5) and (6) and insert—

‘(5) Notwithstanding any of the previous provisions of this Act, the budget share of a grant-aided school shall include an amount in respect of—

(a) the salaries and allowances of the staff of the school; and

(b) the relevant contributions in respect of such staff.

(6) But—

(a) in the case of a voluntary grammar school, ESA may set-off against the maintenance grant payable under Article 61(2)(a) of the 1998 Order any payments made by ESA itself in respect of the matters mentioned in paragraphs (a) and (b) of subsection (1);

(b) in the case of a grant-maintained integrated school, ESA may set-off against the maintenance grant payable under Article 63(2)(a) of the 1998 Order any payments made by ESA itself in respect of the matters mentioned in paragraphs (a) and (b) of subsection (2).’

Clause 11, page 6, line 43, at end insert—

‘(c) “the appointed day" means the day appointed under section 54 for the coming into operation of section 3.’

151. The Committee considered this proposed Departmental amendment at its meeting on 16 September 2009. In response to a Members question as to whether the effect of the amendment would be to curtail the autonomy of schools, officials confirmed that the purpose of the amendment was to ensure that schools retained their autonomy in relation salaries and wages and that there was no adverse effect in terms of implications for school funding. The Committee raised no further issues in relation to Clause 11 or the proposed Departmental amendment to it. At its meeting on 23 September 2009 the Committee agreed to recommend to the Assembly that Clause 11 be amended as proposed by the Department above.

Modification of employment law (Clause 12)

152. At the Committee’s meeting on 18 February 2009, Departmental officials informed the Committee that the Department’s power to modify employment law under Clause 12 was subject to Assembly approval by way of a darft affirmative resolution. Officials commented:

‘Upon reading, those powers may appear draconian. I assure the Committee that they are not. They are there to be used if needed to facilitate the operation of the employment model that we have described to the Committee. In other words, they provide the power — if needed — to slightly change employment law in order to assign a particular responsibility to the ESA or to a board of governors.

The powers do not enable fundamental changes to be made to employment law. Therefore, we cannot change or dilute the responsibilities of the ESA as an employer; nor can we remove the fundamental rights of any member of staff under employment law. I assure the Committee that that is neither our intention nor is it within the scope of the provision.’

153. A Member raised his concern with officials:

‘That is a serious issue for many people. Mr Stewart has given the Committee assurances, but can anything be done to include those provisos in the legislation? People may consider such matters and surmise that the Department is assuming the power to do whatever it likes.’

154. Officials indicated that while the Bill itself could be amended, subject to legal advice, it may be preferable to provide more detail in the Explanatory and Financial Memorandum which would accompany the Bill. In response to the Member’s question officials clarified that the latter course would not be legally binding: the content of the explanatory and financial memorandum would be taken into account if there were a dispute and a court was required to make a ruling’. Departmental officials clarified that the Department had not sought the inclusion of Clause 12; it was rather the suggestion of Legislative Counsel.

155. The Committee sought advice from the Assembly’s Examiner of Statutory Rules in relation to the delegated powers in the Education Bill - including Clause 12 - and in particular the forms of Assembly control proposed. The advice suggested that the Committee may wish to seek clarification regarding the orders under Clause 12 (1) on modification of employment law - which seem to be subject to negative resolution - and whether or not these orders should be subject to draft affirmative procedure in line with orders under Clause 50 (1), given that both provisions allow for modification of statutory provisions. The Committee considered this advice at its meeting on 9 September 2009 and asked officials to consider this issue and, since orders made under Clause 12 would modify primary legislation, to consider an amendment to the Bill to make such orders subject to draft affirmative resolution. The Committee wrote to the Department in similar terms on 9 September 2009.

156. At its meeting on 16 September 2009, the Committee considered the Department’s response of 15 September 2009 which stated:

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

157. The Committee agreed to ask the Clerk to draft a possible Committee amendment to Clause 51 which would require that an order under Clause 12 would require to be ‘laid before, and approved by resolution of, the Assembly’.

158. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 12 as drafted. The Committee later agreed to recommend to the Assembly that Clause 51 be amended as follows:

Clause 51, page 29. line 17,

leave out ‘section 50(1)’ and insert ‘sections 50(1) or 12(1)’:

The effect of which is that no order shall be made under section 12(1) unless a draft of the order has been laid before, and approved by, the Assembly.

159. At the Committee’s meeting on 23 September 2009 the Committee agreed that it was content with Clauses 5, 7, 8, 9 and 10 as drafted.

Other functions of ESA

ESA to provide or secure provision of training and advisory support services for schools (Clause 13)

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

161. Among the issues raised in stakeholder submissions to the Committee was a suggestion by NAHT (on behalf of itself, INTO and UTU) that the budget for training be delegated to schools. They saw the provision of training and support services ‘free of charge’ by ESA as perpetuating current arrangements under which schools have no choice but to take whatever is on offer from CASS and RTU. They proposed that ESA should still provide training and support, but that the budget should be delegated to the schools so they are free to buy those services from ESA or elsewhere if they wish.

162. The Department considered that the obligation on ESA to ‘provide or secure’ the provision of these services would allow budgets to be delegated. At the Committee meeting on 1 July 2009, the Deputy Chairperson raised another issue with Departmental officials regarding the Department’s view that it would be a duplication to include in Clause 13 a reference to ESA seeking advice from the GTCNI in relation to securing training for teachers, as GTCNI had requested in its written submission. Officials indicated that any reference would be symbolic and the Minister did not consider the change necessary.

163. A Committee Member raised further concerns that the approach to training provision could be perceived as permitting ESA to insist on an ‘our way or no way’ approach to the procuring of training. Officials accepted:

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

164. FONT’s submission to the Committee had raised concerns on behalf of teachers and principals in nursery schools. FONT said that some Education and Library Boards had interpreted their duty in relation to training and advisory support as relating only to teachers who were teaching the statutory curriculum, thus not encompassing teachers in nursery schools.

165. The Department’s written response to FONT’s submission stated that ‘The duties in Clause 13 relate to all grant-aided schools, including nursery schools.’ The Committee raised and discussed this concern with Departmental officials at its meeting on 1 July 2009, when officials informed the Committee:

‘I understand that concern. I am not in a position to comment on the extent to which what they are saying is correct. However, if one assumes that it is correct, that stems from a deficiency in practice rather than a deficiency in legislation.’

166. Officials agreed to provide the Committee with a more detailed written explanation of the intentions of Clause 13 and consider whether the wording of the Clause could be amended to give clarity on some of the issues raised. The Department’s response of 15 September 2009 stated:

‘You asked for a written explanation of the intention of this Clause.

Under the terms of this clause the ESA will be required to provide, or to secure the provision of, a training and support service for the Boards of Governors and all staff of grant-aided schools. The intention is that a school, either individually or in concert with other schools, may request training and support services provided by the ESA or secured by the ESA on its/their behalf.

The Clause provides for the move away from the fixed provision currently determined by the Education and Library Boards. It also means that services will be commissioned from schools, so that they are responsive to need. Therefore there will be a mixed market of provision involving the ESA, other providers, and the schools themselves.’

167. The Committee considered the Department’s response at its meeting on 16 September 2009 and raised no other concerns in relation to Clause 13. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 13 as drafted.

ESA to provide library services (Clause 14)

168. This clause places a duty on ESA to provide library services in grant-aided schools and other educational establishments which are grant-aided by the Department or ESA

169. The Committee raised a number of issues with Departmental officials at the Committee meeting on 1 July 2009, including responsibility for the training and professional development of library staff and whether there would be an agreement with the much larger Libraries Authority Departmental officials indicated that such an agreement was envisaged which would address staff development and provide secondment opportunities between the two organisations. The Deputy Chairperson informed the Committee that the Chief Executive of the Libraries Authority had told the Committee for Culture Arts and Leisure that she believed there would be a service level agreement to provide professional back-up to school libraries.

170. At its meeting on 23 September 2009, the Committee agreed that it was content with Clause 14 as drafted.

ESA to secure provision of education and youth services and facilities (Clause 15)

171. At the Committee meeting on 1 July 2009, Departmental officials addressed the concern raised by the SEELB regarding the separation of ‘education services’ from ‘youth services’. Departmental officials pointed out that combining both in one provision raised the same difficulty as the Committee had considered in relation to Clause 2, namely that ‘youth services’ encompassed provision up to age 25, which was beyond the scope of ‘education services’.

172. The Examiner of Statutory Rules, in his advice to the Committee on the powers proposed with this Bill, commented on Clause 15 (5) which contains provisions allowing ESA to make byelaws. The Department’s written submission, presented to the Committee on 18 February 2008 (see Appendix 3), stated ‘The byelaw provisions in Clause 15 are the only provisions in the Bill that involve the creation of offences and penalties’. This raises the question should Clause 15(5) make express provision for the creation of offences and expressly set out the limits of penalties for offences? Section 7(2) of the Libraries Act (Northern Ireland) 2008 relates to similar provisions and section 7(3) to (8) contains various procedural provision in respect of making of byelaws by the Northern Ireland Library Authority. This raises the issue of including similar provisions in Clause 15, given that the byelaws are not subject to Assembly scrutiny procedures. The Committee considered this at its meeting of 9 September 2009 and agreed to write to the Department in relation to a possible amendment to the Bill to include provisions similar to those in the Libraries Act 2008. The Department responded on 15 September 2009 stating:

‘As it stands, Clause 15 would not authorise the creation of offences and the imposition of fines. Given the nature of the purposes for which bye-laws may be made, we have concluded that there is no need for such a provision in Clause 15.’

173. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 15 as drafted.

Payment of capital grants to schools (Clause 16)

174. Clause 16 provides that capital grants to these schools, which were formerly paid by the Department, will be paid by ESA and Clause 17 provides that superannuation benefits for teachers, which were formerly paid by the Department, will be paid by ESA. The Committee raised no issues in relation to Clauses 16 and 17.

175. On 4 September 2009 the Committee received notice of the specific terms of a Departmental amendment for the insertion of a new clause to follow Clause 16 beneath the heading ‘ESA to contract for certain capital works’ in order that ‘The ESA will be the contracting authority for major capital works in grant aided schools’. The proposed new Clause would read:

‘ESA to contract for certain capital works

(1) ESA may enter into contracts for, or in connection with, the provision or alteration of the premises of a grant-aided school.

(2) Those contracts may include contracts with the trustees or Board of Governors of a voluntary or grant-maintained integrated school requiring specified payments to be made to ESA by the trustees or Board of Governors at specified times.

(3) ESA may under the powers conferred by subsection (1) enter into a contract (“an approved contract") with another person (“the contractor")—

(a) under which the contractor undertakes at his own cost—

(i) to provide or alter any premises of a grant-aided school; and

(ii) to maintain, or provide other services in relation to, those premises over the term of the contract,

in consideration for the payment by ESA of sums of money in instalments over the term of the contract; and

(b) which has been approved by the Department for the purposes of this subsection.

(4) The inclusion in a contract of matters other than those mentioned in paragraph (a) of subsection (3) does not prevent the contract falling within that paragraph.

(5) In Article 2 of the 1986 Order for paragraphs (2G) and (2H) substitute—

“(2D) In the Education Orders references to—

(a) an approved contract,

(b) the contractor, in relation to an approved contract,

shall be construed in accordance with Section {j2597}(3) of the Education Act (Northern Ireland) 2009.

(2E) References in the Education Orders to the staff of or at a school or to persons employed at, in or about a school do not include references to persons employed by the contractor for the purposes of an approved contract." ’

176. The Committee considered this proposed amendment at its meeting on 16 September 2009 and raised no issues in relation to it. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 16 as drafted.

New Clauses after Clause 16

177. At its meeting on 23 September 2009 the Committee considered a new clause which the Department proposed be inserted after Clause 16 in the following terms:

ESA to contract for certain capital works [j2597]

(1) ESA may enter into contracts for, or in connection with, the provision or alteration of the premises of a grant-aided school.

(2) Those contracts may include contracts with the trustees or Board of Governors of a voluntary or grant-maintained integrated school requiring specified payments to be made to ESA by the trustees or Board of Governors at specified times.

(3) ESA may under the powers conferred by subsection (1) enter into a contract (“an approved contract") with another person (“the contractor")—

(a) under which the contractor undertakes at his own cost—

(i) to provide or alter any premises of a grant-aided school; and

(ii) to maintain, or provide other services in relation to, those premises over the term of the contract,

in consideration for the payment by ESA of sums of money in instalments over the term of the contract; and

(b) which has been approved by the Department for the purposes of this subsection.

(4) The inclusion in a contract of matters other than those mentioned in paragraph (a) of subsection (3) does not prevent the contract falling within that paragraph.

(5) In Article 2 of the 1986 Order for paragraphs (2G) and (2H) substitute—

“(2D) In the Education Orders references to—

(a) an approved contract,

(b) the contractor, in relation to an approved contract,

shall be construed in accordance with section {j2597}(3) of the Education Act (Northern Ireland) 2009.

(2E) References in the Education Orders to the staff of or at a school or to persons employed at, in or about a school do not include references to persons employed by the contractor for the purposes of an approved contract." ’

178. At its meeting on 23 September 2009, the Committee agreed to recommend to the Assembly that the new clause be inserted after Clause 16 as proposed by the Department.

ESA to pay superannuation benefits of teachers (Clause 17)

179. On 4 September 2009 the Committee received notice of a proposed Departmental amendment to Clause 17 to clarify a reference to the provision in the Superannuation Order 1972 which Clause 17 amends. The Department’s proposed amendment read:

Clause 17, page 9, line 16 after ‘Department)’ insert ‘for paragraph (1)’.

180. As amended Clause 17 would read (inserted text in bold):

ESA to pay superannuation benefits of teachers

17. In Article 11 of the Superannuation (Northern Ireland) Order 1972 (NI 10) (pensions, allowances, etc. of teachers to be paid by Department) for paragraph (1) substitute—

“(1) The Department of Education may, by regulations made with the consent of the Department of Finance and Personnel, make provision with respect to the pensions, allowances or gratuities which, subject to the fulfilment of such requirements and conditions as may be prescribed by the regulations are to be, or may be, paid by the Education and Skills Authority to or in respect of teachers".

181. The Committee considered this proposed amendment at its meeting on 16 September 2009 and raised no issues in relation to it. At its meeting on 23 September 2009, the Committee agreed to recommend to the Assembly that Clause 17, as amended as proposed by the Department as set out above.

Ancillary powers of ESA (Clause 18)

182. The Committee queried whether the powers being give to ESA:

to enter into agreements;
acquire or dispose of property
form bodies corporate;
carry out or commission research; and,
co-operate with or provide advice to other statutory bodies;

were similar to powers previously vested in the Education and Library Boards. Departmental officials confirmed that the Boards had similar powers and informed the Committee that a similar provision would be associated with any new public authority and referred to a similar clause in the Libraries Bill.

183. At the Committee’s meeting on 11 March 2009, a Member put to Departmental officials a concern raised by the NIVGSBA, namely regarding the apparently wide ranging power in Clause 18(1) which states ‘ ESA may do anything that appears to it to be conducive or incidental to the discharge of its functions.’

184. Departmental officials responded:

‘On first reading, clause 18 appears to offer a degree of latitude to the ESA that might give rise to concern; however, it does not. The qualification that something must be conducive or incidental to the discharge of the ESA’s functions is important. There has to be a direct link between what the ESA wants to do in the discharge of its statutory functions and the education legislation. Therefore, the clause does not allow the ESA to set up private companies that can do something that is not connected to education.

However, apart from that, it is a fairly standard provision that would routinely be inserted into legislation to establish any new non-departmental public body delivering a public service. ‘

185. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 18 as drafted.

Power of ESA to undertake commercial activities (Clause 19)

186. This clause allows ESA to charge other bodies or persons for goods or services provided by ESA subject to the Department’s approval.

187. The Committee noted the NEELB’s comment that:

‘The Board has had to forego many commercial opportunities in the past where it has been at the cutting edge of developments in relation to curriculum development and the use of technologies. It is important that the legislation facilitates rather than inhibits the marketing of the Northern Ireland educational service in these islands and further afield. There is much to disseminate in Northern Ireland in terms of ‘being leaders in the field’ and the economy should take every opportunity to generate income from such sources.’

188. At its meeting on 1 July 2009, the Committee asked Departmental officials whether the Education and Library Boards had enjoyed such a power and what sort of commercial activities the Department had in mind for ESA. Departmental officials confirmed that the power was not available to Boards in the same way and that the Department had no particular commercial activities in mind, but that officials would ask CCEA and other bodies for examples (including examples of what commercial activities bodies had had to forego) to assist the Committee.

189. In response to another Committee question officials clarified that receipts would be dealt with as instructed by the Department of Finance and Personnel and agreed to come back to the Committee in relation to the inclusion of an appropriation-in-aid clause, as appeared in Schedule 1, paragraph 15(3) of the Libraries Act (Northern Ireland) 2008. The Department responded on 15 September 2009, stating:

‘You asked whether an appropriation in aid provision is necessary, similar to that contained in the Libraries Act. It is not the Departments intention to include a similar provision in the Education Bill. All such issues will be dealt with by way of Financial Memorandum’.

190. The Committee noted the Department’s response to this point at its meeting on 16 September 2009. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 19 as drafted.

ESA and civil contingencies (Clause 20)

191. There were no concerns raised by stakeholders or Committee Members in relation to this enabling clause which allows the Department to confer powers or impose duties on ESA in relation to emergency preparedness and response. The Examiner of Statutory Rules, in his advice to the Committee on the powers proposed in this Bill, noted that Clause 20 was one of a number of clauses containing a power to make subordinate legislation. The Examiner concluded, ‘Generally, all that seems to be appropriate as far as the level of Assembly scrutiny is concerned.’ The Committee considered the Examiner’s advice at its meeting of 9 September 2009 and raised no issues in relation to this power. At its meeting on 23 September 2009 the Committee agreed that it was content with Clause 20 as drafted.

Dissolution of certain bodies and transfers (Clauses 21 and 22)

192. Clause 21 formally dissolves the Education and Library Boards, the Council for Catholic Maintained Schools, the Northern Ireland Council for the Curriculum, Examinations and Assessment, the Staff Commission for Education and Library Boards and the Youth Council for Northern Ireland.

193. Clause 22, and Schedules 3, 4 and 5, provide for the transfer of assets, liabilities and staff.

194. At its meeting on 1 July 2009, the Committee noted the Minister’s rejection of the idea of retaining a part of the Education and Library Boards in order to address what some Members had highlighted as potential ‘train wreck’ issue, namely a means for achieving equality as between the public ownership body for controlled schools and the sectoral ownership bodies for other sectors (see paragraphs 64 and 148 of this Report).

195. At its meeting on 23 September 2009 the Committee agreed that it was content with Clauses 21 and 22 as drafted.

General duty of Department and DEL (Clause 23)

196. Clause 23 places a new general duty on the Department and DEL regarding the education of children and young persons, together with the promotion of further and higher education.

197. The Committee raised stakeholder concerns with Departmental officials at its meeting on 1 July 2009 and reminded officials that, in response to WELB’s suggestion of a commitment to lifelong learning for people of all ages, the Department had indicated it would raise that issue with the Department for Employment and Learning. Officials said that they would check whether this had been done.

198. The Chairperson and Deputy Chairperson referred to comments from INTO and NASUWT

199. Two Committee Members raised the subject of a suggestion from the Northern Ireland Association for Mental Health (NIAMH) made at a recent Committee informal event that Clause 23(1)(b) should be amended to place a duty on the Department of Education to promote the ‘mental and physical development’ of children and young people and not just their ‘physical development’. Officials expressed reservations in light of the general duty on the Department of Health, Social Services and Public Safety on ‘health and well-being’:

‘If we are to have two Departments with a statutory duty that is focused on well-being, careful thought would need to be given to the boundaries or the relationship between those respective duties. The thing that we need to avoid in law is having two very similar duties, the extent of which is not clear. That could be a recipe for disagreement between Departments or service recipients as to who is responsible for what.’

‘The Department’s view is that the inclusion of any additional duty on mental health in the Department’s general duty would need to be carefully thought through in order to avoid overlap with the duties and functions of DHSSPS. If there are to be policy discussions about the role of education in mental health and wellbeing then legislation at this point would be premature.’

200. The Committee considered this issue again at its meeting on 16 September 2009 and agreed to consider an amendment which would insert ‘mental’ at paragraph 3(1)(b) of Clause 23 (see paragraphs 89-90 of this Report). At its meeting on 23 September 2009 the Committee agreed to recommend to the Assembly that Clause 23 be amended in the following terms:

Clause 23, page 12, line 8,

after ‘social’ insert ‘mental’.

201. The effect of the amendment being recommended to the Assembly would be to place an additional duty on the Department of Education under Article 3 of the 1989 Order, highlighted in bold below:

23. For Article 3 of the 1989 Order substitute—

“General duty of the Department and DEL

3.—(1) It shall be the duty of the Department—

(a) …

(b) to promote the spiritual, moral, cultural, social, mental intellectual and physical development of such children and young persons and thereby of the community at large;’

Examinations, Assessments, Qualifications, the Curriculum etc. (Clauses 24-28)

202. Clause 24 provides that ESA shall conduct relevant examinations and assessments; draw up rules and specifications and specimen papers; charge fees; moderate examinations; and award certificates to candidates.

203. The Committee considered written submissions from the ANIELB, BELB and SEELB on Clause 24. ANIELB stated:

‘The inclusion of CCEA and its role within ESA gives rise to possible concern around the integrity of statistics and standards. The Bill needs to clarify and separate these functions to give the public confidence around the independence and rigour of the examinations undertaken by students. [BELB Response to the Education Bill]’

204. Similarly SEELB’s submission pointed out that:

‘… new legislation offers an opportunity to address what is sometimes perceived as a “conflict of interest". This is the same body that is be responsible for setting the curriculum and assessing its delivery and yet simultaneously be responsible for raising educational achievement and assessing attainment of pupils.’

205. The Department’s written response to SEELB did not appear to recognise that there may be any potential conflict of interest, stating: ‘It is not clear why the Board has concerns about the integrity of statistics and standards.’

206. At the Committee’s meeting of 13 May 2009, the general issue of potential conflict within ESA of vetting examinations and improving standards was raised again with Departmental officials, together with the possibility of having two separate entities within ESA. Officials responded:

‘That potential conflict of interest is addressed by the fact that the role of accrediting qualifications rests with the Department, not with the ESA; the Department decides whether a qualification meets the required standard.’

‘In fact, the proposal in the original RPA consultation document was that there would be two bodies: one would be responsible for curriculum and examination matters and the other for the remainder of the functions. The view that the Minister of the day took, and which the current Minister shares, is that there would be no real benefit in such an arrangement and some additional cost, stemming from the fact that yet another public-sector body would be in existence.’

207. At its meeting of 10 September 2009, the Committee considered Clause 24 and was content with Clause 24 as it appears in the Bill. At its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clause 24 as drafted.

208. Clause 25 allows ESA to carry out other functions in relation to the curriculum, examination and assessments, for example, production of teaching materials, and the publication of guidance regarding the curriculum. ESA also may charge other examining bodies or authorities for carrying out functions on its behalf. SEELB raised a concern in relation to Clause 25(2) which required ESA to:

‘…produce, or secure or assist the production of, guidance and teaching materials for use (whether at a school or any other premises) in connection with the curriculum for children who have attained the age of 2 but have not attained the lower limit of compulsory school age.’

209. SEELB stated

‘The Board is concerned that by requiring ESA to produce materials for use in connection with the Curriculum for 2 year olds , there is a danger that this might formalize their learning experiences. The benefits of formalizing the curriculum for children of such a young age are questionable and come at a time when many other countries are introducing children to formal education at a much later age.’

210. The Committee considered this issue at its meeting on 10 September 2009 and indicated that it was content with Clause 25 as it appears in the Bill. At its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clause 25 as drafted.

211. Clause 26 provides that in carrying out its functions in relation to the curriculum, examinations and assessments, ESA is placed under a duty to have regard to the requirements of industry, commerce and the professions as regards education, and also the requirements of people with special educational needs and learning difficulties.

212. CnaG in its written submission on the Bill (see Appendix 3), proposed an amendment to Clause 26 to place an additional obligation relating to Irish-medium education on ESA so that in the discharge of its functions under Clauses 24 and 25, ESA would be required to have regard not simply to the requirements of industry, commerce and the professions regarding education but also as follows:

‘It is a legitimate expectation of the education system and of the role of ESA in it to expect it to have regard to the requirements of Irish language employers and of those charged with the provision of services in the Irish language.’

213. CnaG gave oral evidence to the Committee on 6 May 2009 and Departmental Officials responding stated:

‘The suggestion was made that clause 26(2) should include a reference to the needs of persons being educated in the Irish language. The Minister agrees that there is a need for such a change, but she will wish to consider further how it might best be reflected in legislation. The Department understood CnaG’s suggested amendment to clause 26(2) to refer specifically to curriculum and examination functions. However, the description that Seán and his colleagues gave this morning was somewhat broader, and therefore clause 26(2) might not be the appropriate home for such a provision. That is something that the Department will need to consider further.’

214. Annex C to the Minister’s letter of 17 June 2009 indicated that the Department was ‘considering making an amendment to [Clause 26] to ensure that curriculum support and similar services are sensitive to the needs of Irish-medium education’.

215. The Committee received the specific wording of the proposed Departmental amendment on 4 September 2009 which read:

Clause 26, page 14, line 12, at end insert—

‘(iii) the requirements of those attending Irish speaking schools (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006) who are taught in Irish; and’

216. The Committee considered this amendment at its meetings on 10 and 16 September 2009. Some Members expressed concern regarding this amendment on grounds of equality as it places a specific duty on ESA to have regard to the requirements of those attending schools in one particular sector and not all sectors. Other Members said that this specific duty was needed because in the past it had been difficult to get the specific needs of Irish-medium addressed. However, there was no agreement on the proposed Departmental amendment. At its final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee did not agree to recommend to the Assembly that Clause 26 be amended as proposed by the Department above.

217. The Committee received the specific wording for another suggested Departmental amendment to Clause 26 from the Department on 4 September 2009 in the following terms:

‘Clause 26, page 14, line 19, leave out from ‘and’ to end of line 21’.

218. This amendment was proposed on foot of a request from DEL to remove sub-clause 26(2)(b) which DEL advised was no longer required. The Committee considered this amendment at its meeting on 16 September 2009 and raised no issues in relation to it. At its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed to recommend to the Assembly that Clause 26 be amended as proposed above.

219. GTCNI’s submission proposed that in discharging its functions in relation to curriculum, examinations and assessments, ESA should have a specific duty to have regard to ‘civic and social well being’ in addition to ‘the requirements of industry, commerce and the professions regarding education.’

220. The Department’s written response and in oral evidence to the Committee on 29 April 2009 stated that Clauses 2 and 23 were more appropriate places to have such references and that those clauses already included such references.

221. Clause 27 requires the Department to develop and publish accreditation criteria for external qualifications, and accredit those qualifications where they meet those criteria. The Department may obtain advice from ESA or any UK body exercising accreditation functions and shall seek to ensure that standards of qualifications accredited by it are recognized as equivalent to standards of qualifications accredited by other UK bodies.

222. The Minister’s letter of 17 June 2009 proposed an amendment to this Clause in Annex C, stating:

‘The Council for the Curriculum, Examinations and Assessment (CCEA) currently works jointly with the regulators in England and Wales on a number of regulatory issues. Qualifications that are submitted for accreditation are scrutinised by a Committee comprising representatives from the three regulators. The Department for Children, Schools and Families in England has informed us that it intends to include provision in the Apprenticeships, Skills Children and Learning Bill to allow Ofqual to work jointly with the qualifications regulators in Wales and here. Upon the dissolution of the CCEA, this role will be carried out by the Department, clause 27(4), as it is currently drafted, empowers the Department to “ obtain advice" but solicitors advise that this is not strong enough to accommodate the joint working arrangements which are envisaged, and that now would be an opportune time to amend clause 27 to provide for a “ joint working" power.’

223. The Committee received the specific terms of the proposed amendment from the Department on 4 September 2009:

‘Clause 27, page 14, line 42, at end insert—

‘(5A) The Department may—

(a) co-operate or work jointly with another body exercising functions in relation to the accreditation of qualifications (whether in the United Kingdom or elsewhere);

(b) provide information relating to the accreditation of qualifications to such a body.

(5B) Nothing in subsection (5A)—

(a) affects any power that exists apart from that subsection; or

(b) authorises the disclosure of information in contravention of any provision made by or under any statutory provision which prevents disclosure of the information.’’

224. The Committee considered this at its meeting on 10 September 2009. Some members asked whether the proposed amendment was a prelude to a change of policy in terms of working with accrediting bodies in other jurisdictions. Officials indicated that the proposed amendment had arisen from legal advice to the Department. Officials agreed that they would make enquiries regarding any intention to review policy in this area and come back to the Committee.

225. The Department responded in its letter of 15 September 2009 in the following terms:

‘The objective of the amendment is to allow the Department (as the regulator for general qualifications here post-RPA) to:

(i) work jointly with other Qualifications’ Regulators to fulfill its duties and functions in relation to accrediting certain external qualifications; and

(ii) share information with other Qualifications’ Regulators to allow them to fulfill their duties.

Currently, the Council for the Curriculum, Examinations and Assessment (CCEA) is responsible for the accreditation of all qualifications in Northern Ireland, with the exception of National Vocational Qualifications (NVQs) which are regulated by the Qualifications and Curriculum Authority (QCA). CCEA works closely with the qualifications regulators in England and Wales in performing its regulatory function as the three countries share a common qualifications system and qualifications framework known as the National Qualifications Framework (NQF).

Clause 27 of The Education Bill covers the regulatory arrangements that will apply here post-RPA in relation to qualifications designated by the Department (namely GCSEs, GCE A levels and Essential Skills).

The Department for Children Schools and Families in England is in the process of legislating to establish a new qualifications regulator – The Office of Qualifications and Examinations Regulation (Ofqual). Their lawyers have raised concerns that the joint working arrangements currently undertaken by the Qualifications’ Regulators in England, Wales and Northern Ireland are not covered in legislation. They have indicated that their new legislation will contain adequate powers to enable Ofqual to work jointly with the Qualifications’ Regulators in Wales and Northern Ireland and other bodies and to share information associated with the regulatory function.

Departmental Solicitor’s Office has advised that DE needs to take similar powers to enable it to work jointly with other Qualifications’ Regulators and to share relevant information with them.

Scotland and the south of Ireland operate different public examinations systems and, while there is co-operation and sharing of best practice with these regions, there is not the direct comparability that exists within the three-country framework. The Qualifications Regulators from the five countries meet on annual basis to consider issues around the currency and portability of qualifications across and beyond these islands. In addition, CCEA has been involved in a small pilot exercise in the south which was set up to establish a system that will mean that any NQF qualifications offered there are properly quality assured.’

226. The Committee considered the Department’s response at its meeting on 16 September 2009 and raised no further concerns regarding Clause 27. At its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed to recommend to the Assembly that Clause 27 be amended as proposed by the Department and set out above.

227. Clause 28 deals with the approval of courses leading to external qualifications. The Minister’s letter of 17 June 2009 (at Annex C) informed the Committee of a request from the Department of Employment and Learning that these provisions are amended to extend ESA’s role to cover a range of non-regulatory functions that relate to Vocational Qualifications, including advising DEL and supporting organisations involved in developing Vocational Qualifications.

228. The Committee noted stakeholder comments and the Department’s response at its meeting on 10 September 2009 and indicated it was content with Clause 28 as it appears in the Bill.

229. The Committee received the specific terms of proposed DEL amendments from the Department of Education on 10 September 2009 following the Committee meeting on 10 September 2009. (see Appendix 4) The proposed amendments were as set out below:

Clause 28, page 15, line 13, leave out subsection (2)

Clause 28, page 15, line 23, leave out subsection (5).

230. The Committee considered these proposed Departmental amendments in its final clause by clause consideration of the Bill at its meeting on 23 September 2009 and agreed to recommend to the Assembly that Clause 28 be amended as proposed by the Department and set out above.

New Clauses (after Clause 28)

231. The Departmental amendments requested by DEL also comprised two substantial new clauses to be inserted after Clause 28 in the following terms:

After clause 28 insert—

‘Power of ESA to conduct examinations specified by DEL [j7498]

(1) ESA may, subject to the following provisions of this section, conduct any examinations specified by DEL (“the specified examinations").

(2) For the purposes of this section the power of ESA to conduct the specified examinations includes power—

(a) to enter into arrangements for the conduct by any other person or body of all or any part of any such examinations on such terms and conditions (including conditions as to payment) as ESA may determine;

(b) to draw up and publish—

(i) rules and specifications;

(ii) specimen papers; and

(iii) such other material as it considers desirable, in connection with such examinations;

(c) to moderate, or arrange for the moderation of, such examinations;

(d) to award appropriate certificates in respect of such examinations.

(3) ESA may charge such fees in connection with the specified examinations as may be approved by DEL.

(4) ESA shall make arrangements for the consideration by ESA of appeals against any decision or complaints against any action—

(a) taken by ESA under this section; or

(b) taken in accordance with arrangements entered into by ESA under subsection (2)(a).

(5) In carrying out its functions under this section ESA shall, so far as relevant, have regard to—

(a) the requirements of industry, commerce and the professions regarding the specified examinations; and

(b) the requirements of persons with special learning needs (as defined in section 26(2)).’

After clause 28 insert—

‘Functions of ESA in relation to qualifications designated by DEL

.—(1) ESA shall keep under review all aspects of designated qualifications.

(2) ESA—

(a) may advise DEL on matters concerning designated qualifications;

(b) shall advise DEL on any such matters which are referred to ESA by DEL.

(3) ESA may and, if requested to do so by DEL, shall carry out programmes of research and development for purposes connected to designated qualifications.

(4) ESA may provide advice and assistance to persons or bodies providing courses leading to designated qualifications.

(5) ESA may publish and disseminate information relating to designated qualifications.

(6) In carrying out its functions under this section ESA shall, so far as relevant, have regard to—

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

(b) the requirements of persons with special learning needs (as defined in section 26(2).

(7) In this section “designated qualifications" means qualifications designated by DEL.’

232. These proposed amendments also comprised amendments to Clause 28 and Schedule 7:

Clause 28, page 15, line 13, leave out subsection (2)

Clause 28, page 15, line 23, leave out subsection (5).

Schedule 7, page 54, line 28, omit ‘and’

Schedule 7, page 54, line 29, at end insert ‘and

(d) the Education (Northern Ireland) Act 2009.’

233. On 16 September 2010 the Committee received written confirmation from the Committee for Employment and Learning that it had considered all the amendments which DEL was proposing in relation to the Bill and was satisfied with them.

234. The Committee asked DE officials to comment on the DEL amendments at the Committee’s meeting on 16 September 2009. The Committee raised no issue in relation to these new clauses and the amendments to Clause 28 and Schedule 7, except in relation to the similarity and possible need for consistency between the duties imposed on ESA by Clause 26 and the duties imposed in the proposed new clauses, namely:

In carrying out its functions under this section ESA shall, so far as relevant, have regard to—

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

(b) the requirements of persons with special learning needs (as defined in section 26(2).

235. The Committee noted that the Department proposed to add a third leg to the ESA’s duty under Clause 26, namely:

‘(iii) the requirements of those attending Irish speaking schools (within the meaning of Article 3(2) of the Education (Northern Ireland) Order 2006) who are taught in Irish; and’

236. The Committee queried whether there should be a similar duty upon ESA inserted in the proposed new clauses which DEL have requested be inserted after Clause 28.

237. The Committee considered these proposed Departmental amendments at paragraphs 231 and 232 above in its final clause by clause consideration of the Bill at its meeting on 23 September 2009, and agreed to recommend to the Assembly that the new clauses be inserted and that Clause 28 and Schedule 7 be amended as proposed by the Department and set out above.

Powers of General Teaching Council (Clause 29 and Schedule 6)

238. Clause 29 amends Article 36 of the Education (Northern Ireland) Order 1998 and inserts in it a new Article 36A and Schedule 1 A) for disciplinary procedures in respect of teachers by the General Teaching Council (GTC) in cases of unacceptable professional conduct or the conviction of registered teachers. The new Schedule 1A outlines the particular disciplinary powers of the GTC and the procedures that must be followed in carrying out a disciplinary case. Clause 29 also inserts a new Article 36B in the 1998 Order that provides for regulations to be made which would allow the GTC to issue and revise a code which lays down standards of professional conduct and practice which is expected of registered teachers.

239. GTCNI’s written submission stated: ‘The officers of GTCNI welcome the greater specificity and are content that the new provisions are sufficiently robust to allow the council to fulfil its regulatory function.’

240. The Committee noted the comments of UTU and WELB regarding the relationship between GTC’s disciplinary role and that of Boards of Governors. The Committee at its meeting of 29 April 2009, raised with GTCNI representatives the need for clear guidance on how GTC disciplinary powers are to be coordinated with those of ESA and individual boards of governors.

241. A GTCNI representative clarified the position as follows:

‘A professional body would operate in that sphere by providing wider scrutiny of professional activity by the profession itself; that is the heart of self-regulation. Determinations would be made by the employers, because that would be directly relevant, and we would look at the implication of the conduct or the incompetence on the wider profession and the professional issues that may arise. Our processes will sit above and outside employer processes, but employer processes are important sources of evidence for the GTC in making determinations. We make determinations in cases of unacceptable professional conduct or serious professional incompetence. The benchmark or hurdle that we envisage in the regulation is that we would consider only those matters regarding the dismissal of a teacher by an employer for one of those reasons.’

242. The Committee also noted the comment of SEELB in its written submission to the Committee on the effect of disciplinary orders in other jurisdictions.

‘When a disciplinary order is made the Board is of the view that such a decision should have force across other jurisdictions, especially G.B. and R.o.I.’

243. The Department’s response to SEELB stated:

‘Effect of General Teaching Council disciplinary orders in other jurisdictions (Schedule 6)- The Council’s disciplinary functions ‘Regulations’ will be made to follow the passage of the Education Bill. The draft Regulation 26 states:

“A disciplinary order made by another General Teaching Council or a Committee of those Councils in the United Kingdom shall apply in relation to Northern Ireland as it applies in relation to those countries"’

Therefore it is intended that disciplinary orders made by the Teaching Councils in England, Scotland and Wales will apply in Northern Ireland. There have been no discussions as yet concerning the mutual recognition/application of disciplinary orders made by GTCNI and those made by the Teaching Council in the Republic. However, there is no reason ‘in principle’ why orders should not be recognised North and South.’

244. The Committee considered Clause 29 again at its meeting on 10 September 2009 and indicated it was content with Clause 29 as it appears in the Bill. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clause 29 as drafted.

245. SCHEMES OF MANAGEMENT FOR GRANT-AIDED SCHOOLS

(Clause 30 -33)

246. Clause 30 requires every grant-aided school to have in place a scheme of management, which provides for the membership and procedures of the Board of Governors of that school and the management of the school. It is the duty of the Board of Governors to give effect to the scheme of management.

247. The arrangements in Clause 31 mirror those for employment schemes (set out in Clauses 4 to 9) with the ‘submitting authority’ to prepare a draft scheme, taking into account the ESA’s guidance (including model schemes) for submission to the ESA for approval. Also Clause 32 reserves to ESA a power to make a management for a school in the absence of agreement with the submitting authority.

248. The Committee noted the comments in ANIELB’s written submission that the existing schemes of management are no longer fit for purpose:

‘The comments relating to the Schemes of Management are similar to the comments made in relation to Employment Schemes (Clause 4 to 9). The Association supports the development of these schemes and recognises these are pivotal documents which provide the framework within which Boards of Governors will discharge their duties. These schemes take on added significance when it is widely acknowledged that the responsibilities of Boards of Governors from 1 January 2010 will change fundamentally, yet it is the understanding of the ANIELB that Boards of Governors will be encouraged to operate under existing schemes of management which in the view of the Association are ‘no longer fit for purpose.’ In the view of the Association it is essential that model schemes are available to all schools with effect from the introduction of ESA. This is imperative when considering the centrality of Schemes of Management to a number of key processes and responsibilities carried out by Boards of Governors including the appointment of staff which will require to be harmonised across the range of school sectors coming together under ESA.

249. The strongest opposition to the proposals for schemes of management came in the submission from the GBA, on behalf of Voluntary Grammar Schools.

‘Clause 31(1) imposes an obligation on Boards of Governors/Trustees (“the submitting authority") to prepare a scheme of management for the approval of ESA. Clause 31(5) provides that a scheme of management “shall not come into force until it has been approved by ESA". This is a striking transfer of power. A school simply cannot, under these provisions, function administratively without the approval of ESA. Boards of Governors are required by this proposed statute to submit a proposal for their future powers which must be ratified by ESA before their governance activities can be discharged. Failure to submit a management scheme will not avail a school who objects to this course because ESA retain a power subject to Clause 32(2) to make such a management scheme as ESA considers “appropriate."’

GBA consider that this is an oppressive and overly bureaucratic model of schools governance. The objectives outlined in the Minister’s letter of 13th January 2009 are unrealizable within this statutory framework. On the proposed model all governance arrangements will require the approval of ESA. Failure to achieve approval, or refusal to engage in the process, will result in the imposition of a scheme of management.’

‘GBA suggest that Clause 30(1) should be remodeled to reflect the approach adopted in section 14 and 15 of the School Standards and Framework Act 1998 with these provisions being triggered by DE rather than ESA. The ETI remains under DE control. GBA believes that such grave decisions should only be considered after considerable scrutiny from ETI and other educational professionals rather than a bureaucratic organization such as ESA. LEAs in GB have their own inspectorate. ESA should have no such powers. These provisions were designed to establish a trigger mechanism for intervention which was proportionate and tailored to meet particular identified needs. A similar “trigger" clause of the imposition of “scheme of management" could be readily grafted on to the proposed Education Bill. GBA set out the provisions of section 14 and 15 below to assist the Committee in determining how a proportionate model of light touch governance regulation can be introduced in a legislative scheme.’

‘GBA submit that the need for centralised intervention in school governance must be predicated upon an objectively verifiable and continuing need. Moreover, the imposition of a scheme of management should only take place once a school has been given an “unless" warning to enable them to take remedial steps to the satisfaction of the DE. GBA have seen no compelling argument which outlines why the governance oversight arrangements which apply in England and Wales are not appropriate for Northern Ireland. GBA invites the Committee to reflect on the comparative bureaucratic and resource costs involved in the GB scheme as opposed to those arising from the Northern Ireland Education Bill. It is submitted that the proposals outlined in the Education Bill involve an entirely disproportionate interference with governance arrangements which have never, as yet, been empirically shown to be anything less than fit for purpose.’

‘Furthermore, the approach to schools governance which the Minister appears to be advocating in her correspondence with the GBA fits with the model which appears in the 1998 Act. There is virtually no scope for arms-length oversight and autonomous schools governance within the present provisions in Clauses 30-33 of the Education Bill.’

250. The Department’s written response to GBA’s submission stated:

‘The GBA objects to the proposals on school governance in clauses 30 to 33 of the Education Bill. These clauses require each school to draw up a scheme of management, taking account of guidance produced by the ESA. The schemes must be submitted to the ESA for approval, and the ESA may modify the schemes, or impose a scheme if a school is unable or unwilling to draw one up.

It is difficult to understand the GBA’s objection to these arrangements, which it describes as a ‘striking transfer of power’. Grant-aided schools are publicly funded institutions delivering a key public service. The Department contends that it is both reasonable and necessary to require each school to have clear governance arrangements in place, and to abide by those arrangements. Equally, it is entirely reasonable for the Education and Skills Authority to have a role in approving such arrangements, and in ensuring that they are in place. This is the effect of clauses 30 to 33.

The GBA’s objection appears misguided, given that legislative requirements on governance arrangements such as these are not new, but have been in statute since 1989. Articles 9A to 9D of the Education and Libraries (Northern Ireland) Order 1986 require schemes of management to be prepared and submitted to the Department for approval, and contain powers for the Department to modify the schemes and impose schemes in default.’

251. In relation to the proposed amendment to reflect the provisions in the 1998 Act applicable in England, the Department commented:

‘The key difference between the Act and the Education Bill is that schools here will have more flexibility in shaping their schemes. The ESA will produce guidance, which schools must take into account, but with no requirement for strict adherence. By contrast, instruments of government are subject to regulations (for which compliance is obligatory) rather than guidance, and schools in England and Wales are legally required to draw up instruments of government in prescribed form, with no scope for variation.’

252. In contrasting the powers of a Local Education Authority in England with those which the ESA will enjoy, the Department’s submission stated:

‘ [The ESA] cannot direct schools in relation to raising standards; cannot withhold grant; cannot interfere in the school’s staff complement or appointment of staff; and cannot direct the dismissal of staff. The strongest powers in legislation here (appointment and removal of governors, directing schools, closing schools) are less extensive than those in England and Wales, and are reserved to the Department.’

253. The Committee considered these issues at its meeting on 11 March 2009 with representatives of the GBA and NIVGSBA and also with Departmental officials. (See Appendix 3).

254. The Committee considered Clauses 30-33 again at its meeting on 10 September 2009, including the Department’s proposed amendment to Clause 31 in the following terms:

Clause 31, page 17, line 32, leave out paragraphs (a) and (b) and insert—

‘(a) in the case of a controlled school, the Board of Governors of the school;

(b) in the case of a voluntary or grant-maintained integrated school, the trustees of the school or (if the trustees so determine) the Board of Governors of the school.’

255. Some Members expressed concern that these clauses were perceived by some Boards of Governors as diminishing their independence where they had governed their affairs for hundreds of years.

256. Some Members echoed stakeholder concerns that the requirement to submit schemes of management for approval would prove a burden on Boards of Governors, unpaid volunteers who are already devoting a significant amount of time to their role and could deter Governors from continuing in post.

257. Departmental officials sought to reassure the Committee that the Bill was sufficiently flexible to address these very different concerns. The Department would be happy to consider a model scheme submitted by a particular sector; for example a ‘minimalist’ model scheme which, for example, voluntary grammar schools would regard as sufficient to enable them to conduct their affairs in an orderly manner. Officials informed the Committee that the provision of guidance and model schemes would provide a relatively straightforward route for Boards of Governors to comply with the duty to submit a scheme of management.

258. Members were agreed that where significant public money was involved it was appropriate to have proper schemes of management in place.

259. Some Members expressed serious concerns that the creation of ESA was scheduled for 1 January 2010 and there was no guidance and no model schemes available for the Committee or Boards of Governors to consider. Officials informed the Committee that there were already standard schemes of management in use within the maintained and controlled sectors.

260. Some Members expressed a wish that the content of the schemes of management (or the principles that would inform the guidance and model schemes) should appear on the face of the Bill or in Regulations, as the Minister had agreed to in relation to schemes of employment. Officials advised the Committee that schemes of employment would deal with the relationship between ESA and Boards of Governors and were an appropriate subject for regulations, whereas schemes of management dealt with the schools internal governance arrangements, not its relationship with ESA.

261. Some Members expressed a concern that Governors were apprehensive about all the changes and the Department needed to do more to inform and reassure them in relation to their role and responsibilities. Officials agreed that they would relay Members concerns to the relevant colleagues in the Department.

262. In light of some Members’ concerns regarding Clauses 30-33, the Committee agreed that it would consider these clauses again.

263. At its meeting on 16 September 2009 the Committee agreed to ask the Clerk to prepare draft amendments on a range of issues which had been canvassed in the course of the Committee’s scrutiny of the Bill so that these would be available for consideration by the Committee at its meeting on 23 September 2009 if required.

264. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee agreed to recommend to the Assembly that Clause 30 be amended in the following terms:

Clause 30, page 17, line 4, at end insert-

‘(6) The Department shall by regulations make provision as to the form and content of schemes of management.’

265. On 30 September 2009 the Committee received notice of two proposed amendments from the Department in the following terms:

Schedule 1, page 31, line 15,

leave out ‘7 or more than 11’ and insert ‘11 or more than 14’.

The Committee had already agreed to recommend its own amendment in relation to the number of ESA Members, which the first of the amendments above relates to (see paragraph 34 above).

Clause 30, page 17, line 3 at end insert—

‘( ) The scheme of management for an Irish speaking school shall require the Board of Governors to use its best endeavours to ensure that the management, control and ethos of the school are such as are likely to ensure the continuing viability of the school as an Irish speaking school.

( ) The scheme of management for a grant-aided school of which a part is Irish speaking shall require the Board of Governors to use its best endeavours to ensure that the management, control and ethos of the school are such as are likely to ensure the continuing viability of the Irish speaking part of the school.’

A Member proposed that the Committee simply note the terms of second proposed Departmental amendment above as he would have required more time to consider it before deciding whether to recommend it or not. The Committee agreed to note the second of the proposed Departmental amendments. The Committee also agreed to seek legal advice on the nature of the obligation inherent in the words ‘best endeavours’ in the second of the amendments above.

266. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee did not agree to recommend to the Assembly that Clause 31 be amended as proposed by the Department, as set out at paragraph 254 above.

267. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee agreed to recommend to the Assembly that Clause 32 should be amended consequent to the proposed Committee amendment to Clause 30 above, in order to give the ESA a power to make a scheme of management where a scheme submitted does not comply with the regulations to be made under the proposed Clause 30(6). The terms of the amendment were to be prepared by the Clerk for the Committee’s consideration and approval. The Committee considered the following proposed amendment to Clause 32 at its meeting of 30 September 2009:

Clause 32, page 17, line 42,

leave out from ‘subsection’ to ‘cannot’ in line 2 on page 18

and insert

‘section 31(1)(b) does not comply with regulations under section 30(6) or does not accord with any guidance issued by ESA under section 31(3) and cannot (in either case)’.

268. The Committee agreed to recommend to the Assembly that, consequent to the proposed amendment to Clause 30 referred to in paragraph 264 above, Clause 32 be amended as set out above. The Committee agreed it was content with Clause 32 as amended.

269. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee agreed that it was content with Clause 33 as drafted.

270. BOARDS OF GOVERNORS (CLAUSES 34-36)

Duties of Boards of Governors in Relation to Achievement of High Standards of Educational Attainment (Clause 34)

271. This clause places a duty on the Board of Governors of a grant-aided school to promote high standards of educational attainment by pupils of the school. It is also the duty of the Board of Governors to co-operate with ESA regarding actions that ESA has undertaken to promote the achievement of high standards of educational achievement.

272. CCMS and ASPECT welcomed the focus on the ‘achievement of high standards’, while UTU and INTO had concerns on the new duty on Boards of Governors under 34(2). TRC commented’:

‘it is of concern to transferors that a challenge role may be difficult for many governors to undertake. Lay governors challenging professional teachers in their work could lead to a breakdown of trust, the work of the Board of Governors destabilised and the customary trust and courtesies undermined. Governors will require exceptional professional support at these moments of challenge. It is unclear whether this support will be available from the ESA or delivered through the relevant support body.

… transferors have a concern that increasing the burden of responsibility for school improvement may appear off-putting and prove detrimental to the recruitment of skilled and well motivated governors.’

273. The NICCE written submission (see Appendix 3), in welcoming Sectoral Support Bodies, raised a number of points regarding the Support Bodies, including the need for a clause in the Bill on these Bodies.

‘In particular we ask that a clause be included on the duty of Boards of Governors and senior Management of schools to co-operate with the relevant sectoral support body. We note that Clause 34(2) of the draft Bill states that:

“it is the duty of the Board of Governors to co-operate with the ESA in relation to actions undertaken by the ESA with a view to promoting the achievement of high standards of educational attainment by those pupils." DE recognises the role which the sectoral support bodies will have in promoting effectiveness and raising standards in schools in their sector. Including a clause on the duty of schools to co-operate with the relevant sectoral support body as well as with the ESA would reinforce the importance of raising standards in all schools".

‘The Education (NI) Order 1998 Section 11(3) (b) currently requires consultation with the Trustees where the Department of Education is providing regulations on school performance targets. Recognising the role of sectoral support bodies in raising standards NICCE therefore asks that the Education Bill confirm a duty on ESA to consult with and have due regard for the advice of each sectoral support body in respect of school performance targets. A similar duty to consult with and have due regard for advice of the sectoral support body would be appropriate in respect of the direction given to schools in respect of class limits, regulations on the provision of information to schools and other such issues. NICCE further holds that the Education Bill should provide legislation which creates a duty on the sectoral support bodies to consult regularly with one another on matters of common interest, including the duty on schools to promote good relationships, reconciliation and peace’.

274. The Department’s written response (see Appendix 3) to NICCE stated that the ‘policy approach’ set out in Policy Paper 21 is that ‘sectoral organisations will be non-statutory bodies and, will not have any statutory functions’ and went on to detail reasons on this basis why the NICCE specific suggestions for legislative references ‘would be problematic’. The DE response concluded that ‘the Minister considers that any formal duties to consult should refer to Boards of Governors and/or the owners or trustees of schools, rather than to sectoral bodies’, and highlighted ‘The Education Advisory Forum will provide a formal mechanism for the involvement of sectoral bodies and other stakeholders in policy formation.’

275. The CnaG submission sought an amendment that it would be a duty of Boards of Governors of Irish-Medium schools or IM units to be ‘committed to the maintenance of the IM provision in the school’ mirroring a similar legislative requirement for Controlled Integrated schools. CnaG pointed out the description of a ‘unit’ is not in legislation. The Department’s response in highlighting existing legislation provision for governors of integrated schools, stated ‘The Minister agrees there is a strong case for similar provisions in relation to Irish-Medium education and wishes to consider how best to take this forward.’.

276. Dominic Bradley, MLA wrote to the Department regarding the duties of governors and proposed an amendment to Clause 34 by the addition of a new 34(3)

“ it is the duty of the Board of governors of a grant-aided school to exercise its functions with a view to promoting and preserving the sectoral ethos of the school"

277. The Department’s response regarding the description of a unit in legislation was that:

‘The ethos of a school or sector is not something that can be precisely defined, nor can it be easily measured. In these circumstances, whilst CnaG’s objective is understandable, we do not think that the proposed duty would be practicable.’

278. The Committee raised the subject of the proposed Departmental amendment with officials at its meeting of 10 September 2009. Officials indicated that the Minister was still considering this amendment. On 22 September 2009 the Minister wrote to the Committee confirming that she was minded to bring forward a further amendment to the Bill to address this issue, the precise wording of which would depend on the advice of Legislative Counsel, and stating that she would endeavour to let the Committee have the wording before the end of Committee stage if possible.

279. The Committee considered the Minister’s letter at its meeting on 23 September and agreed that it was content with Clause 34 as drafted.

Community Governors for Controlled, Maintained, Grant-Maintained Integrated and Certain Voluntary Grammar Schools (Clause 35)

280. This clause provides that Boards of Governors shall contain community governors by means of amendments to the 1986 Order and the 1989 Order. Community governors are defined as persons living or working in the local community.

281. AQE’s written submission on the Bill expressed concern regarding the concept and role of community governors:

‘Significant changes are planned for the appointment of Governors; in addition there are strong powers given to the ESA to remove or restrain a Board, which appears to be ignoring advice. The ESA will have the power to appoint governors as considered necessary, including Community Governors (persons living or working in the local community). These governors may not be approved by individual Boards and may be able to outvote Foundation Governors. Schools need to have the power to draw governors from a wide area, ones who will have the skills relevant for their needs.

In our view the legislation as currently drafted should be amended to ensure that Foundation Governors have the right to challenge or veto any arrangements proposed by the ESA. The schools which AQE represents, have for years been “melting-pots", attracting pupils from wide areas, often across frontiers of division. Governors drawn from a local community will provide too parochial and narrow a view. A breadth of division is required in the appointment of school governors.’

282. The Department responded in writing:

‘1. The concerns expressed by the Association on this matter may be resolved by an explanation of the relevant provisions of the Bill, which need to be read in conjunction with Schedules 4 to 7 to the Education and Libraries (NI) Order 1986 (the 2006 Order), and article 23 of the Education and Libraries (NI) Order 2003 (the 2003 Order).

2. There are no powers in the Education Bill for the ESA to ‘remove or restrain’ a Board of Governors.

3. The power to remove all of the members of a board of governors is contained in article 23 of the 2003 Order, and is reserved for the Department, not the ESA. The article permits the Department to make regulations for the ESA to remove individual governors from a board, but this is limited to those governors appointed by the ESA. It does not include the principal, staff governors, parent governors or ‘foundation’ governors i.e. those appointed by the school itself according to the arrangements in its scheme of management.

4. No such regulations have been made to date, and the Department has no plans to do so.

5. The Association also expressed a concern that governors appointed by the ESA could outvote foundation governors. This concern is unfounded, and perhaps reflects a misunderstanding of the effect of the provisions.

6. The Education Bill makes relatively minor changes to the governance of schools. In relation to the appointment of governors, the key change is that appointments that are currently made by Education and Library Boards or the Department will, in future, be made by the ESA.

7. The composition of boards of governors will not change, and the proportion of appointments made by the ESA will be the same as the proportion currently made by the Department and Education and Library Boards. With the exception of controlled grammar schools, ESA appointed governors will be in a minority[1]. Therefore, the prospect of foundation governors being outvoted by community governors is unlikely, as is the case at present.

8. The Association expressed concern about the definition of ‘community governor’ as someone living or working in the local community, which it feels may be overly restrictive. In applying the provisions the Department will require the ESA to be sensitive to the needs of the school, and would regard a reasonable definition of ‘local community’ as being the community served by or potentially served by a school. Given the broad catchment areas served by post-primary schools, the Department does not view the definition as being restrictive.

[1] Schedules 4, 6 and 7 to the 1986 Order refer. The proportion of community governors will be either 0, two tenths, two ninths, or 1 third. For controlled grammar schools, the proportion is five eighths, other than controlled integrated grammar schools, for which it is three sevenths.’

283. NICCE’s written submission sought amendment to Schedule 5 or 6 of Education and Libraries (NI) Order 1986 which currently requires consultation with Trustees in relation to the appointment of governors by E&LBs and the Department of Education. NICCE sought an amendment which would require ESA to appoint community governors ‘in consultation with’ Trustees or Boards of Governors to ensure that community governors understood the ethos and defining character of the school. The Department considered that this would be ‘too imprecise for use in legislation’ and ‘risk confusing respective roles of ESA in making appointments and trustees as consultees on such appointments’.

284. The Committee discussed this with officials at its meeting on 25 March 2009 who responded:

“The commission said to the Department and stated in its evidence to the Committee last week that the current arrangements are working very satisfactorily from its point of view. Those current arrangements are clear. We know exactly — in legal terms — what “consult" and “appoint" mean. The difficulty is that the Legislative Counsel states that he does not know what “in consultation" might mean. It sounded to him, as it did to me, like joint appointment. The difficulty with joint appointment arises when the two participants fail to agree."

285. CCMS commented on the definition of community:

“Community" is defined, as in previous legislation, as persons living or working in the local community. Council believes it may be worth questioning if this is still a realistic understanding, although this may depend on the definition of ‘local’.

286. The Department responded that it was satisfied that the definition was sufficiently flexible to ensure a broad spread of candidates for appointment.

287. Dominic Bradley MLA raised an issue of concern to CnaG in relation to community governors in IM schools or units, namely:

‘Where an IM unit is established in a school the Board of Governors shall be reconstituted to reflect the change in character of the school. 2 ninths shall be nominated by the trustees body of the IM schools or 2 ninths of community governors will be nominated by ESA. Where two or more schools are grouped under one Board of Governors, the principal of a school shall not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating exclusively to one or more of the other schools is being discussed.

Provision needs to be made here for governors on the BoG of schools with IM units to allow community governors to be included as a right on the BoG of schools with units.

288. The Department’s response stated:

‘The Minister agrees that, where possible, the composition of a board of governors should change to take account of significant changes to the character of the school. We consider that the best way to achieve this would be through the normal scheduled reconstitution of the board or governors, or as vacancies arise. We understand the desire of CnaG for an earlier change, but view the approach suggested as potentially problematic. It is difficult to see a sound basis for selecting and removing two existing governors that would not be open to challenge.

CnaG has also suggested that some governors ought to be chosen by the ‘trustees body’ (presumably a reference to CnaG). The sectoral support policy envisages all sectoral organisations having a role in nominating potential community governors, for appointment by the ESA. However, the policy makes it clear that this would not be a statutory role.

CnaG has also suggested that, where two or more schools are grouped under one Board of Governors, the principal of a school shall not be entitled to attend or take part in any meeting of the Board of Governors whenever a matter relating exclusively to one or more of the other schools is being discussed. This is, in fact, already provided for in paragraphs 2(3) and 3(4) of Schedule 5 to the Education and Libraries (NI) Order 1986.’

289. The Committee considered Clause 35 again at its meeting of 10 September 2009. In light of some Members concerns that the definition of community governors might limit schools whose pupils come from a very wide area, the Committee agreed to consider this issue again.

290. In its final clause by clause scrutiny of the Bill at its meeting on 23 September, the Committee agreed that it was not content with Clause 35 as drafted.

Part-time teachers to be eligible for election as governors (Clause 36)

291. This clause allows part-time assistant teachers to be eligible for election to a Board of Governors. INTO and a number of the E&LB’s welcomed the inclusion of part-time teachers for election as governors. However, the E&LB’s highlighted potential difficulties such as part-time teachers teaching in a number of schools in a local area who ‘could have divided loyalties’ and/or have ‘limited understanding of management issues in a school’. The Department’s response stated that such ‘potential difficulties …can be resolved through good governance practice’.

292. The Committee considered Clause 36 again at its meeting on 10 September 2009 and indicated that it was content with the Clause as it appeared in the Bill. In its final clause by clause scrutiny of the Bill at its meeting on 23 September, the Committee agreed that it was content with Clause 36 as drafted.

Inspections (Clauses 37-42)

293. These clauses specify the general conduct of inspections on behalf of the Department, powers of inspectors, their reports and action plans, inspections of library premises, inspection on behalf of DEL and the use of assessors and laypersons.

Inspections on behalf of the Department (Clause 37)

294. Some E&LBs and Teachers’ Unions, and the ANIEB, TRC and Youthnet made some brief comments on these clauses in their written submissions. These included need for clarity on ‘open at all reasonable times to inspection’ (Clause 37(1)) and the ‘wide ranging powers regarding access to information’. The Department response included the concept of a requirement for premises to be ‘open at reasonable times’ is well established in law and provisions on powers of inspectors included in the Bill are similar to those in other jurisdiction such as inspectors do not have a right of access to data prohibited by statute (eg Data Protection Act). TRC raised specific concerns regarding the frequency of inspection of religious education and sought clarity on Clause 42(3) regarding appropriate experience and skills of assessors and laypersons. The Department’s response noted the former and on the latter clarified that it is for the professional members of the teams to provide required skills and experience rather than lay members, whose role is to complement the professional skills of inspectors from a lay perspective.

295. The Committee noted the Department’s comment that the provisions in these clauses ‘merely bring the powers in line with best practice in other jurisdictions’.

296. The Department proposed an amendment to Clause 37 as set out in the Minister’s letter of 17 June 2009 at Annex C:

‘Clause 37 (5) places a duty on inspectors to monitor, inspect and report on the nature, scope and effect of advisory and support services provided or secured by ESA under Clause 13 of the Bill. An amendment is proposed to include references to Clauses 24 (examinations and assessments), 25 (other functions of ESA in relation to the curriculum, examinations and assessments), and Clause 13 (advisory and support services) in order to bring these functions within the inspection regime.’

297. The Committee received the specific terms of the wording of a proposed amendment to Clause 37(5) from the Department on 4 September 2009 as follows:

Clause 37, page 20, line 29, at end add ‘and on the discharge by ESA of its functions under sections 24 and 25 (except section 25(1)(b)).’.

298. The Committee considered this proposed amendment at its meeting on 10 September 2009. The Committee indicated that it was content with the amendment and, on that basis, with Clauses 37-41. In its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it would recommend to the Assembly that Clause 37 be amended as proposed by the Department and set out above. The Committee went on to agree that it was content with Clauses 38, 39, 40 and 41 as drafted.

Assessors and lay persons (Clause 42)

299. DEL has requested an amendment to require DE to consult with DEL before appointing assessors and lay persons. The Department has agreed to propose an amendment to Clause 42 and the Committee received the specific wording of the proposed amendment on 4 September 2009, namely:

Clause 42, page 24, line 4, at end insert—

‘(6A) Before —

(a) appointing an assessor under subsection (1) for the purposes of the inspection of an establishment under section 41; or

(b) assigning a member of the panel under subsection (5) to be a lay person for the purposes of such an inspection,

the Department shall consult DEL.

(6B) Before —

(a) appointing an assessor under subsection (1) for the purposes of the inspection of an establishment by virtue of paragraph 14 of Schedule 1 to the Libraries Act (Northern Ireland) 2008; or

(b) assigning a member of the panel under subsection (5) to be a lay person for the purposes of such an inspection,

the Department shall consult the Department of Culture, Arts and Leisure.’

300. The Committee considered this amendment at its meeting on 10 September 2009 and indicated that it was content with the proposed amendment and, on that basis, with Clause 42.

301. Officials noted the error in the Explanatory and Financial Memorandum dealing with Clause 42, commented on by SELB. The Committee raised this with officials at the Committee meeting on 10 September 2009 and officials confirmed that the Explanatory and Financial Memorandum would be corrected when this was reprinted so that it was consistent with Clause 42.

302. In its final clause by clause consideration of the Bill at its meeting on 23 September 2009 the Committee agreed that it would recommend to the Assembly that Clause 42 be amended as proposed by the Department and set out above.

Grants for educational and youth services (Clause 43)

303. This clause allows the Department, DEL and DCAL, in accordance with regulations, to pay grants to persons for various services and research connected to education. These grants shall not be paid to ESA, the trustees or managers of a voluntary or grant-maintained integrated school, or the governing body of an institution of further education.

304. Youthnet sought a preferred amendment to clause 43(1)(a) (specifying the purposes for which grants may be paid) which would refer to ‘educational services’ and ‘youth services’ in the same clause, in the following terms:

“…for the purpose of, or in connection with, the provision (or proposed provision) of youth services and educational services and activities carried out in connection with such activities

43.(1)(b)

If Clause 43. (1) (a) is amended as above then Clause 43.(1)(b) would then be removed."

305. The Committee considered Clause 43 at its meeting of 10 September and indicated that it was content with the Clause as it appears in the Bill. In its final clause by clause scrutiny of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clause 43 as drafted.

Protection of Children and Young Persons (Clauses 44-48)

306. These clauses provide an important ‘duty of ESA to ensure that its functions are exercised with a view to safeguarding and promoting the welfare of children and young persons’; specify a duty on providers of funded pre-school education and a duty of providers of education and youth services to safeguard and promote welfare of children; set out ‘Direction as to the exercise of child protection duties by Boards of Governors’; and the ‘Duty of co-operation concerning welfare and protection of children and young persons’.

307. A number of E&LBs raised a few specific comments/suggestions on the important clauses – ‘the valuing and protection of children and young people’. There was support for the clauses and endorsement of the proposals to undertake periodic reviews of how the Boards of Governors discharge their duties in respect of this matter. Following a suggestion that the Bill should make reference to the requirement for governors to attend training and child protection, the Department responded that it would be better addressed through schools’ Schemes of Management. A point was raised about the need for clarification in relation to partnership arrangements and overall responsibility given that ESA will be joined with the Department. The Department noted the suggestion. On a further point raised regarding Clause 45(4) and the definition of ‘abuse’ – the Department clarified that the duty includes ‘neglect’ and ‘emotional abuse’ and that there would be merit in ensuring that any guidance issued to Boards of Governors explains the scope of the duty.

308. The NSPCC Northern Ireland suggested specific amendments to Clause 47 – set out in a memo and paper of 30 June 2009 included in Appendix 3. The amendments ‘would facilitate ESA to issue directions to either the Boards of Governors and/or the Principal dependent on the situation or non-compliance with departmental guidance’. The memo and paper was copied to the Department of Education for comment on 15 July 2009. The Committee raised this with officials at its meeting on 10 September 2009. Officials indicated that the Minister was still considering NSPCC’s proposed amendment. Officials indicated that it was the role of the Board of Governors to direct the Principal and there is an issue about whether it is appropriate for the Department to intervene in that relationship. The Minister’s written response to NSPCC’s proposed amendment was received by the Committee on 22 September 2009 and considered at the Committee meeting on 23 September 2009. The Minister’s letter stated of NSPCC’s proposal:

‘While this is well-intentioned, the proposed amendment, if included, would break the line of accountability within schools. It is not appropriate for ESA to issue a direction to a Principal and, in effect, “by-pass" the Board of Governors. Boards of Governors are accountable for the actions of school-based staff, and it is for the Boards to issue instructions to those staff. Issuing directions to the Boards of Governors, albeit on foot of a failure by the Principal, will ensure that the they are kept informed of the position and have the opportunity to consider the issue and wider safeguarding practice within the school.’

309. In its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clauses, 44, 45, 46, 47 and Clause 48 as drafted.

Catholic Maintained Schools (Clause 49)

310. This clause defines a Catholic maintained school as a maintained school which is designated as such in a scheme made by the Department and after consultation with relevant church authorities.

311. The Department’s response to NICCE, CCMS, CnaG, BELB and UTU comments, including designating all Catholic schools as ‘Catholic grant-Aided Schools’ in the final Bill and whether an Irish-Medium school should have a legal designation to underpin the ethos of IM education, stated:

‘…that the inclusion of a definition of Catholic Maintained schools in the Bill is a temporary measure and the Minister intends to remove this from legislation, either in the First or Second Bill, as part of the simplification of school types and administrative arrangements…’.

312. In Annex C to the Minister’s letter of 17 June 2009, entitled ‘Proposed Departmental Amendments to the Education Bill’, the Department indicated that it was going to remove the definition from the First Bill:

The definition of Catholic maintained school has been carried forward in the current Education Bill, as currently drafted. A Catholic maintained school is defined as a maintained school listed in a scheme of Catholic maintained schools. The main purpose of the definition was the delineation of the group of schools for which the Council for Catholic Maintained Schools (CCMS) was responsible. With the demise of CCMS, the provision will no longer be required for that purpose, and there is no other policy reason for retaining the separation between these schools and other voluntary schools.

Therefore, it is proposed that the definition of Catholic maintained school is removed, and the amendment or repeal of the various references to the definition in the Education Orders.

313. On 4 September 2009 the Committee received the Department’s list of consolidated amendments which confirmed that the Minister would oppose the motion that Clause 49 stand part of the Bill. The Committee considered Clause 49 and its removal from the Bill at its meeting on 16 September 2009 and discussed with officials the rationale for its removal. In this context a Member raised CnaG’s request for a definition of Irish-medium schools as Clause 49 would have provided for Catholic Maintained Schools. The Committee considered this suggestion and the Minister’s position that the existing definition of Irish-medium schools was sufficient but there was no consensus regarding insertion of a definition of Irish-medium school. There was no objection to the Minister’s proposal to oppose the motion that Clause 49 stand part of the Bill.

314. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it would recommend to the Assembly that Clause 49 be removed as proposed by the Department.

Status of Departmental Proposed Amendments

315. At its meeting on 16 September 2009 the Committee sought clarification from officials as to the status of all the Departmental amendments received by the Committee to date in terms of Executive approval of the amendments. Officials advised the Committee that the Minister would be seeking Executive approval for the amendments but that she had been advised that the normal procedure was to obtain the view of the Committee prior to seeking Executive approval.

Supplementary (Clauses 50-55)

Supplementary, Incidental, Consequential, Transitional Provisions, etc. (Clause 50)

316. This clause allows the Department to make such supplementary, incidental, consequential, transitional or saving provisions by order as it considers appropriate to give full effect to the legislation.

317. The SEELB raised a point on Clause 50(2) that:

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

318. The Department’s written response to this was ‘The Minister would welcome the views of the Committee on the suggested duty to consult’. At the Committee’s meeting of 18 February 2009, a senior Departmental official said of this clause:

‘It is included so as to provide grace, in case we discover that we got something wrong in the drafting of the Bill. It allows us to put it right quickly’.

319. The Committee at its meeting of 9 September 2009, when considering this clause also noted that under Clause 51(3) (‘Regulations and orders’) that:

‘(3) No order shall be made under section 50(1) unless the draft of the order has been laid before, and approved by resolution of the Assembly’. [ie draft affirmative action]

320. The Assembly’s Examiner of Statutory rules in advice to the Committee on the delegated powers in the Education Bill and the forms of the Assembly control proposed, highlighted that both Clause 12(1) and Clause 50(1) allow for modification of statutory provisions, and both should be subject to the same procedure, that is, the draft affirmative procedure.

321. The Committee noted that Clause 12(2) of the Bill specifies:

‘(2) Before making any order under this section the Department shall consult—

(a) ESA; and

(b) such organisations representing—

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

(vii) staff in such schools,

as appear to the Department to be appropriate.’

322. The Committee discussed whether a similar type duty to consult should apply to Clause 50 and asked Departmental officials to consider this and to consider an amendment to the Bill to address this issue.

323. On 9 September 2009 the Committee wrote to the Department on this issue. The Department’s response was received on 15 September 2009 and considered at the Committee’s meeting 16 September 2009. The Department stated:

‘The Minister does not believe there is a need to insert a consultation requirement in clause 50. Clause 51(3) requires a draft of the Order under clause 50(1) to be laid and approved by resolution of the Assembly. This is in our opinion a higher standard to meet than a consultation requirement. It is also worth noting that the provisions are well precedented, unobjectionable and useful in practice.’

324. The Committee discussed this response at its meeting on 16 September and there was a broad acceptance of the Minister’s reasoning. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee agreed that it was content with Clause 50 as drafted.

Regulations and orders (Clause 51)

325. In considering subordinate legislation (as well as other issues such as dispute resolution, representational roles and powers of new RPA bodies) the Committee had the benefit of an Assembly Research and Library Services briefing paper entitled ‘Comparable issues from Library, Health and Education Bills’. (Appendix 4)

326. The Committee considered whether Clause 51 should be amended so that an order under Clause 12 would require to be laid before and approved by the Assembly in the same way as an order under Clause 50(1). The Committee had raised this issue with the Department in its letter of 9 September 2009 and at its meeting on 16 September 2009 considered the Department’s response of 15 September which stated:

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

327. The Committee discussed this issue with officials and agreed to request that the Clerk prepare a draft amendment for the Committee to consider at its meeting on 23 September 2009, which would require an order under Clause 12 to be laid before and approved by resolution of the Assembly in the same way as an order under Clause 50(1).

328. In the Committee’s final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee considered a draft Committee amendment in the terms set out below and agreed that it would recommend to the Assembly that Clause 51 be amended in those terms, namely:

Clause 51, page 29. line 17,

leave out ‘section 50(1)’ and insert ‘sections 50(1) or 12(1)’:

329. In its final clause by clause consideration of the Bill at its meeting on 23 September 2009, the Committee also considered a number of draft Committee amendments to require that no regulations be made under certain clauses of the Bill before a draft of the regulations has been laid before, and approved by resolution of the Assembly. Accordingly the Committee agreed to recommend to the Assembly that Clause 51 be amended in the terms set out below:

Regulations for governing ESA Committees

Clause 51, page 29. line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29. line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under Schedule 1, paragraph 7 unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

Regulations for schemes of management

Clause 51, page 29. line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29. line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under section 30(6) unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

330. The Committee also considered a draft amendment to Clause 51 relating to the Department’s proposed amendment to Clause 4, an amendment inserting an enabling provision for regulations as to the form and content of employment schemes. As stated above, the Committee had agreed not to recommend to the Assembly the Department’s proposed amendment. However, the Committee agreed on 23 September 2009 that should the Department’s proposed amendment be laid, the Committee would recommend to the Assembly that if regulations are to be made under Section 4(4) that Clause 51 be amended in the following terms:

Clause 51, page 29. line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29. line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under section 4(4) unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

Interpretation (Clause 52)

331. This clause contains definitions of terms used in the Bill. In its written submission the Western Education and Library Board commented:

‘Clause 52 states that “This Act shall be construed as one with the 1986 Order". By dealing with this new legislation in this way, a rare opportunity has been lost to simplify the whole legislative basis for education in Northern Ireland. It is very unfortunate that the Department has not taken this opportunity to introduce a new consolidated Education Bill embracing all of the legislation which has been introduced since 1986 in a systematic format.’

332. The Department’s written response stated:

‘Consolidation of existing legislation The Department shares the Board’s desire for consolidation of primary education legislation. However, consolidation exercises are major undertakings, and are normally carried out after, rather than during, major legislative reform.’

333. A Member of the Committee had previously raised the same issue of consolidation with Departmental officials at the Committee meeting on 18 February 2009 when the Committee was considering the statutory framework within which the Bill would operate. Departmental officials responded:

‘… This Bill will remove one of the Orders and will remove significant chunks from the Education and Libraries (Northern Ireland) Order 1986 and the Education Reform (Northern Ireland) Order 1989. I expect the second Bill to shear more off the 1986 Order to the point that very little of that legislation will remain. At that point, we might ask legislative counsel whether we can insert the remaining bits into different legislation in order to remove one Order entirely. …

… Consolidation is a technical process that happens after legislation is reformed. Counsel cannot consolidate at the moment because it would be forced to hit a moving target, because the Department is still changing the legislation. When the two Bills on RPA are finalised — and, perhaps, one Bill to reform the legislation generally — we might be able ask counsel to create one consolidated piece of legislation. That is a mammoth and extremely technical task.’

334. The Committee considered this issue again at its meeting on 16 September 2009 and discussed the difficulties with officials. Officials were also asked if the Department had a ‘track-changes’ version of the Bill showing the Department’s proposed amendments which would have assisted the Committee in its scrutiny. Officials told the Committee that the Department did not have such a version of the Bill readily available.

335. Members raised no objection to Clause 52 as it appeared in the Bill and in its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Clause 52 as drafted.

Minor and Consequential Amendments and Repeals and Revocations (Clause 53)

336. This clause applies Schedules 7 and 8 which contain minor and consequential amendments and repeals respectively.

337. The Committee considered this clause at its meeting of 16 September 2009. There were no educational stakeholder comments on this clause and comments on Schedules 7 and 8 are dealt with below. The Committee indicated that at this stage it was content with Clause 53 as it appeared in the Bill. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Clause 53 as drafted.

Commencement (Clause 54)

338. This clause contains provision for the commencement of the legislation. Departmental officials briefed the Committee on the commencement provisions at the Committee meeting on 18 February 2009 describing:

‘…the two ways in which primary legislation can be brought into operation: automatically on the date of Royal Assent, or at a later date by means of commencement Orders. The commencement arrangements for the Education Bill are set out in clause 54. As with most Bills, they include both mechanisms, so there is nothing unusual about that.

However, the proportion of the provisions that are covered by each mechanism is unusual. In this case, all the substantive provisions — including those to establish and assign functions to the education and skills authority (ESA), and to dissolve the existing organisations — will be initiated by means of commencement Orders. As Members will recall, that is to reflect the decision of the Minister and the Executive that the review of public administration (RPA) should be regarded as a single legislative programme and that the two required Bills must remain synchronised. Therefore, the commencement arrangements are designed to ensure that the timing of the implementation of the first Act can be adjusted, if necessary, to maintain that synchronisation.

The very few provisions that will commence on Royal Assent are set out in table 1 of annexe A to the paper. Those particular provisions will be commenced in that way either for technical reasons or because they provide for actions that the Department will have to take in advance of the implementation date of 1 January 2010.

The technical issues are self-explanatory: both the clause giving the short title of the Bill and the clause that allows for the making of the commencement Orders must commence on Royal Assent.

The remaining provisions, significantly those that deal with staff transfer, relate to what the Department must do in advance of implementation. Although staff transfer will not take place until 1 January 2010, when the new organisation comes into operation, it will be affected by means of a series of transfer schemes that the Department hopes to prepare well in advance of that date.

Therefore, we need an early commencement of the provisions that allows us to draw up the transfer schemes. I assure the Committee once again that there is no suggestion that transfer will take place prior to 1 January 2010.’

339. The Committee considered the commencement provisions again at its meeting on 16 September 2009 including the specific wording of a proposed Departmental amendment received on 4 September 2009, to insert at the end of the Clause:

‘(cc) section 29 and Schedule 6;’

The Department states that this

‘Allows the commencement of the clause on Disciplinary Powers of the General Teaching Council to be commenced upon Royal Assent as these clauses are urgently required in order to comply with other jurisdictions’.

340. Some Members noted that the commencement orders were not subject to any form of Assembly control. Officials advised the Committee that where the Assembly passes legislation then the Department regards this as requiring the legislation to be commenced as soon as possible and that there was case-law which supported this view.

341. On 16 September the Committee indicated that it was content with Clause 54 subject to it being amended as the Minister proposed, and in its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it would recommend to the Assembly that Clause 54 be amended as proposed by the Department and set out above.

Short Title (Clause 55)

342. This clause contains the short title of the legislation. The Committee indicated that it was content with Clause 55 as it appears in the Bill at its meeting on 16 September 2009. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Clause 55 as drafted.

Schedules

The Education and Skills Authority (Schedule 1)

343. This Schedule contains provisions in relation to the status, membership, tenure of office of members, remuneration of allowances of members and employees and proceedings of ESA. The Schedule also makes provision in relation to finance, accounts and reporting and returns.

344. The Committee considered Schedule 1 alongside Clause 1 (see paragraphs 29 to 83) which address some specific paragraphs of Schedule 1.

Transfer to ESA of staff employed by Boards of Governors (Schedule 2)

345. This Schedule makes provision for the transfer to ESA of staff employed by Boards of Governors. Staff will be afforded protection of their terms and conditions of employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

346. In its written submission SEELB sought clarification ‘why there should be more than one scheme as all staff are employed by the one body, namely the Board of Governors.’ The same concern is raised in respect of Schedule 3, Clause3(2) and Schedule 5 Clause2(3) In response the Department stated:

‘Transfer schemes (Schedules 2 to 5) The provisions enable but do not require more than one scheme. This is a standard provision and simply provides the flexibility to deal with these transfers in whatever way the Department wishes to. The Department’s intention is to have a single scheme.’

347. The Committee considered Schedule 2 at its meetings on 4 March and 16 September 2009 and in its consideration of Clauses 3-12 above. The Committee raised no issues in relation to Schedule 2 as it appears in the Bill. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Schedule 2 as drafted.

Transfer of assets, liabilities and staff of dissolved bodies (Schedule 3)

348. This Schedule makes provision for the transfer of assets, liabilities and staff of education and library boards; the Council for Catholic Maintained Schools; Northern Ireland Council for the Curriculum, Examinations and Assessment; the Staff Commission for Education and Library Boards; and the Youth Council for Northern Ireland. Staff will be afforded protection of their terms and conditions of employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

349. WELB’s written submission expressed concern that the transfer of property ‘could involve a major conveyancing exercise which will be extremely complex and time-consuming’. The Committee noted that Departmental Policy Paper 20 stated that ‘land transfers due to major government re-organisations are exempt from Stamp Duty’ and informed the Committee that the Department was seeking a VAT exemption for the ESA. Policy Paper 20 also stated that the Department was seeking a VAT exemption for the ESA. Officials briefing to the Committee on 4 February stated: ‘I assure the Committee that we are talking to our colleagues in the Department of Finance and Personnel and the Treasury to minimise the potential effect of the transfer of assets on the Department’s budget and on the public purse.’

350. SEELB, in its written submission referred to:

‘Schedule3 clause 5 which deals with “Accounts and Reports: Transitional Arrangements", the Board seeks clarification if there will be a need for one or two sets of account, ie. one for nine and a second for twelve months.’

351. The Department’s responded:

‘… The Department is considering an amendment to this provision. Advice received from DFP suggests that the requirement to produce audited accounts for the nine month period for laying before the Assembly is over and above what they would expect to happen. Although legacy organisations will be required to produce accounts in a form specified by the Department, it is not necessarily desirable that they should be audited and laid before the Assembly. An amendment to the legislation can be made to allow for this exception, provided we receive written agreement from DFP and the Accounting Officer that they are content with the suggested change.’

352. The Committee received the specific terms of two proposed amendments to Schedule 3 from the Department on 4 September 2009 and considered these at its meeting on 16 September 2009.

353. The Department’s first amendment proposes that paragraph 2(3)(b) be omitted as this DCAL amendment ‘…is no longer required as these assets and/or liabilities have already transferred to the new Libraries Authority’.

354. In relation to its second proposed amendment the Department stated that new paragraph 5 ‘Makes an amendment to the arrangements for the ESA’s procedure with regard to reporting on their first set of accounts following advice from DFP’. The proposed amendment replaced the existing paragraph 5 of Schedule 3 with the following new text:

‘5. — (1) ESA shall make arrangements for a statement of accounts to be prepared in relation to each dissolved body for the relevant period.

(2) Each statement of accounts shall—

(a) be in such form, and

(b) contain such information,

as the Department may direct.

(3) ESA shall, within such time after the end of the relevant period as the Department may direct send a copy of each statement of accounts to the Department.

(4) In this paragraph “the relevant period" means the period—

(a) beginning on such day as the Department may direct; and

(b) ending immediately before the appointed day.’

355. The Committee asked officials to comment on these proposed amendments at its meeting on 16 September 2009. The Committee also asked officials for an update on the tax implications of any kind involved in the transfer of assets, noting that officials had assured the Committee on 4 February 2009 that they were talking to their colleagues in the Department of Finance and Personnel and the Treasury. Officials informed the Committee that there would be no tax liability arising from the transfers and no implications for the Education budget. The only point on which written confirmation had yet to be received was in relation to corporation tax, where an oral assurance had been received from HMRC. Officials agreed to provide the Committee with written confirmation that there would be no tax liability arising from the transfer of assets under Schedule 3. The Committee indicated that it was content with Schedule 3 as it appeared in the Bill, subject to the Department’s amendments.

356. On 22 September 2009 the Department wrote to the Committee in relation to tax liability and the Committee considered this correspondence at its meeting on 23 September 2009 when it was discussed with officials. In its final clause by clause consideration of the Bill on 23 September 2009 the Committee agreed that it would recommend to the Assembly that Schedule 3 be amended as proposed by the Department, as set out above.

Transfer of certain assets and liabilities of CCMS before appointed day (Schedule 4)

357. This Schedule makes provision for the transfer of any assets or liabilities from CCMS, before the commencement of the body of the legislation. Departmental officials briefed the Committee on 4 March 2009 about the reasons for the different commencement arrangements for Clause 22 and Schedules 3-5:

‘We intend that the provisions will commence on Royal Assent so that the Department can draw up the necessary transfer schemes before the appointed day. However, with the exception of schedule 4, the schemes will not come into operation and the transfers will not take place until the appointed day. The slightly different approach in schedule 4 stems from the fact that some CCMS assets ought to be transferred to the Church rather than to the ESA, because they were funded by the Church in the past.

The schedule would allow for those assets, and any associated liabilities, to be identified and transferred to the Church before the appointed day. Thereafter, all other assets and liabilities of the CCMS would transfer to the ESA on the appointed day by means of a scheme under schedule 3 rather than schedule 4.’

358. On 4 September 2009 the Committee received the specific wording of a proposed amendment to Schedule 4 (2) (3) (b) from the Department. The Department indicated that the amendment was required ‘… as Clause 49 of the Bill (definition of Catholic Maintained Schools) is no longer required so a definition of relevant church authorities is included’. The proposed new wording would leave out Schedule 4 (2) (3) (b) and insert the following:

‘(b) the Roman Catholic Archbishop of Armagh and the Roman Catholic Bishops of Clogher, Derry, Down and Connor, Dromore and Kilmore; and’

359. The Committee considered this proposed amendment at its meeting on 16 September 2009. Officials informed the Committee that an audit of CCMS property was ongoing to compile a schedule of the property (for example, offices) which would be returned to the ownership of the Catholic Church. Officials agreed to provide the Committee with the schedule.

360. The Committee indicated that it was content with Schedule 4 subject to the Department’s proposed amendment. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed to recommend to the Assembly that Schedule 4 be amended as proposed by the Department, as set out above.

Transfer of certain staff of the Department (Schedule 5)

361. This Schedule makes provision for the transfer of staff from the Department to ESA. Staff will be afforded protection of their terms and conditions of employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006. CnaG’s written submission to the Committee stated in the context of Schedule 5:

‘There is currently no arrangement in place to secure the effective transfer to ESA of Comhairle na Gaelscolaíochta staff involved at present in the provision of direct services to schools. Once ESA is established it is intended that the responsibility for direct services currently delivered by Comhairle na Gaelscolaíochta and NICIE will pass to ESA, It has also been agreed with DE that Comhairle na Gaelscolaíochta and NICIE employees responsible for the delivery of those services will transfer to ESA.

The Bill only provides for the transfer of CCMS staff and certain staff of the Department of Education to ESA.

Comhairle na Gaelscolaíochta believes that the Bill should also contain provision to include other bodies that have been designated as affected bodies for the purposes of the RPA, of which certain staff will transfer to ESA; namely Comhairle na Gaelscolaíochta and NICIE. A transfer schedule will allow for the transfer of staff to ESA from these affected organisations. Otherwise, staff in Comhairle na Gaelscolaíochta engaged in the delivery of direct services to schools will be required to transfer to ESA without the cover of legislation in relation to pensions and other rights.’

362. The Department’s written response to CnaG’s concern stated:

‘1. It is important to emphasise that the Department is fully committed to taking forward the RPA on the basis of equality. With that in mind, the Minister emphasises that any staff who transfer from CnaG to the ESA will have their terms and conditions of service and pension entitlement protected, on the same basis as staff who transfer from statutory organisations.

2. The Department understands why CnaG has asked for these commitments to be included in the Education Bill, and we have carefully considered the scope for doing so. However, a difficulty stems from the fact that CnaG is a private, non-statutory organisation. The inclusion of the suggested provisions in the Education Bill could render the Bill ‘hybrid’, that is, a Bill covering both public and private law matters. The Assembly has not yet developed a separate procedure for private and hybrid Bills and there is, therefore, a high risk that the changes sought by CnaG would result in the Bill being significantly delayed. This in turn would risk jeopardising the implementation timetable for the RPA.

3. In these circumstances, the Minister has concluded that the change should not be made, as this would involve considerable risk of delay, whilst offering no real benefit to CnaG staff.’

363. The Committee considered Schedule 5 at its meeting on 16 September 2009 when officials confirmed that CnaG staff transferring to ESA would enjoy full protection in relation to their terms and conditions, but that due to the difficulty of dealing with a ‘hybrid’ Bill, this could not be dealt with on the face of the Bill. The Committee indicated that it was content with Schedule 5 as it appears in the Bill. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Schedule 5 as drafted.

Schedule 1 A to the Education (Northern Ireland) Order 1998, as inserted (Schedule 6)

364. This Schedule makes provision in relation to the investigation, hearing and determination of disciplinary cases by the General Teaching Council which the Committee considered along with Clause 29 above. (See paragraph 238 onwards) The Committee considered Schedule 6 at its meeting on 16 September 2009 and indicated that it was content with the Schedule as it appeared in the Bill. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it was content with Schedule 6 as drafted.

Minor and consequential amendments (Schedule 7)

365. Schedule 7 makes provision for minor and consequential amendments. On 4 September 2009 the Department provided the Committee with its proposed amendments to Schedule 7 in the following terms:

Schedule 7, page 48, line 25, leave out from ‘for’ to end of line 27 and insert ‘for the words from “has the meaning" to the end substitute “means a maintained school whose trustees are appointed by, or on behalf of, the Roman Catholic Church;" ’

Schedule 7, page 50, line 5, leave out paragraph (6)

Schedule 7, page 51, line 16, leave out paragraph (15)

Schedule 7, page 55, line 31, leave out from ‘and’ to end of line 33 and insert—

‘(aa) in paragraph 1(2) for sub-paragraphs (a) and (b) substitute “the trustees and Board of Governors of the school;" ’

Schedule 7, page 61, line 5, leave out paragraph 18 and insert—

‘18.—(1) In Article 10(3)(aa) and (4)(aa) for “the body constituted by" substitute “a tribunal constituted in accordance with".

(2) In Article 16(2) for sub-paragraphs (a) and (b) substitute “the Board of Governors of a grant-aided school shall consider any representations made to it by ESA".

(3) In Article 16A(1) for the words from the beginning to “direction" substitute “ESA shall make arrangements for enabling the parent of a child of compulsory school age to apply to a tribunal constituted in accordance with regulations under paragraph (6) for a direction".

(4) In Article 16A(2)(a) and (b) for “body" wherever occurring", substitute “tribunal".

(5) In Article 16A(5)(a) for “pupil" substitute “child".

(6) In Article 16A(6)—

(a) for “a body" substitute “tribunals";

(b) in sub-paragraphs (a), (b) and (c) for “the body" substitute “a tribunal";

(c) after sub-paragraph (c) insert—

“(cc) may provide for two or more tribunals to sit at the same time;";

(d) in sub-paragraph (d) for “the Department" substitute “ESA".

(7) In Article 16A after paragraph (6) substitute—

“(6A) A tribunal is not to be regarded as a committee of ESA."

(8) In Article 16A for paragraph (7) insert —

“(7) ESA may make payments to members of a tribunal —

(a) for or in relation to their service a members; and

(b) by way of travelling and subsistence allowance.".

(9) In Article 16B(1)(d), for “the body established" substitute “a tribunal constituted".’

Schedule 7, page 62, line 13, leave out sub-paragraph (7) and insert —

‘(7) In Article 32(2) for sub-paragraphs (a) and (b) substitute “the Board of Governors of a controlled or maintained school shall consider any representations made to it by ESA." ’

Schedule 7, page 62, line 21, leave out sub-paragraphs (13) to (17) and insert —

‘(13) In Article 55(3) and (6) for sub-paragraph (c) substitute —

“(c) where the school is a maintained school, the trustees of the school,".’

(14) In Article 56(1) —

(a) for “the board concerned" substitute “ESA";

(b) for sub-paragraph (b)(iii) substitute —

“(iii) where the school is a maintained school, the trustees of the school,"

(c) in sub-paragraph (b) for “that Council" substitute “those trustees".

(15) In Article 56(2) for sub-paragraph (d) substitute—

“(d) where the school is a maintained school, the trustees of the school,".

(16) In Article 60(5) for “all the boards, the Council for Catholic Maintained Schools" substitute “ESA".

(17) In Article 60(8) and (11) for sub-paragraph (c) substitute—

“(c) where the school is a maintained school, the trustees of the school,".’

366. The Department also proposed additional amendments to Schedule 7 which had been requested by DEL in the following terms:

‘Schedule 7, page 54, line 28, omit ‘and’

Schedule 7, page 54, line 29, at end insert ‘and

(d) the Education (Northern Ireland) Act 2009.’

367. Annex C to the Minister’s letter of 17 June 2009 proposed an amendment to Article 29(6) of the Education (Northern Ireland) Order 2006:

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

368. The Committee noted the Department’s explanatory comment on the amendments to Schedule 7:

‘The most significant amendments relate to an amendment to the Education Order 1997 to place a duty on the ESA to appoint Exceptional Circumstances Tribunals to consider appeals from parents regarding admission to secondary school for their children.’

369. The Committee considered these proposed amendments at its meeting on 16 September 2009, when officials were asked to confirm how the Department could launch a consultation document (which the Committee had just received a copy of) on Regulations to be made under a power in the Bill, when the Bill had still to pass the Assembly. Officials explained that the Regulations would not come into operation until after the Bill becomes an Act. Officials indicated that they would provide the Committee with a paper on how the new arrangements for ‘Exceptional Circumstances’ differ from the existing arrangements.

370. In the context of Schedule 7 CnaG sought:

‘To secure the maintenance and protection of the IM ethos in IM schools and units, Comhairle na Gaelscolaíochta is seeking to have the role and authority of trustees of IM provision recognised and strengthened in legislation. We also seek to have the status of an IM school recognised and strengthened in legislation.

The Comhairle na Gaelscolaíochta proposal in respect of Trustees is based on that currently in place for the Catholic Maintained sector. The Comhairle na Gaelscolaíochta proposal in respect of recognition of the status of an IM school as such, is in line with that in place for all other types of school (Controlled, Controlled Integrated, Catholic Maintained and Voluntary).

Comhairle na Gaelscolaíochta is seeking that a proposal to establish an IM school or unit is identified as such, and that this is provided for in legislation. In this context, Comhairle na Gaelscolaíochta is seeking to ensure that trustees and those charged with supporting the development of future IM provision have a role in the decision-making processes and consultation relating to when and where new IM provision is established. This will ensure that a strategic approach to the development of new IM provision is maintained, and will minimise the potential for parent groups to establish new provision without reference to the impact of the proposed new provision on existing schools.

The proposed amendments will place IM schools on a par with Catholic Maintained schools, and schools in other sectors, and ensure that those charged with the strategic development of the IM sector are consulted in relation to development proposals.

Comhairle na Gaelscolaíochta is proposing that official legislative recognition is given to the status of an IM school and unit, that trustees of IM schools are afforded the same roles as the Catholic Trustees, that those acting on behalf of IM trustees are consulted in relation to changes to existing IM provision and in relation to the establishment of new provision.’

371. The Department in its response to CnaG submission stated:

‘1. CnaG has suggested the need for a provision giving the trustees of Irish-medium schools a statutory right to be consulted about development proposals in relation to Irish-medium education, on a similar basis to Catholic trustees.

2. The Department understands the wish of the Irish-medium trustees to be able to act collectively to guide the development of Irish-medium education. However, the Education Bill does not, in fact, give such a collective role to Catholic Trustees [1], nor to any other sector.

3. Paragraph 9(4) of Schedule 7 to the Bill will insert a new article (14) into the 1986 Order, dealing with development proposals. Under that article, the trustees of any school must be consulted about a development proposal that would affect the school. This includes proposals relating directly to an existing school, or proposals for a new school that would affect existing schools (new clause 14 (8). In these circumstances the Department is satisfied that the Bill contains equitable provisions that ensure that trustees of schools in all sectors will be consulted about development proposals that would affect their schools.

4. The Department also suggests that the ‘collective’ role for all education sectoral interests would be more appropriately exercised in the area planning process. Proposals for the second RPA Education Bill will include provisions for sectoral interests (and other interests such as pupils, parents, staff and governors) to input to the area planning process.’

372. The Committee noted the concern raised by NEELB in its written submission regarding an amendment to the Education and Libraries (Northern Ireland) Order 1996 by paragraph 9 of Schedule 7 which substitutes a new Article 14 in the 1986 Order beneath the heading ‘Proposals as to primary and secondary education’. The new Article 14(7) specifies those whom the ESA must consult before submitting to the Department a development proposal regarding an existing school:

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

373. The Department’s written response indicated that the Minister saw value in the suggestion regarding consultation of non-teaching staff and pupils and sought the Committee’s view on this suggestion. The Committee considered this suggestion at its meeting on 16 September 2009.

374. The Committee noted its concerns regarding the Exceptional Circumstances Regulations. The Committee raised no other issues in relation to Schedule 7 or the Department’s proposed amendments to Schedule 7.

375. The Minister’s letter of 22 September 2009 informed the Committee that she had agreed to additional amendments to the Education and Libraries (NI) Order 2003 that had been requested by the Minister for Employment and Learning. The amendments would enable the DEL Careers Service to access relevant information on pupils and support the provision of effective careers guidance in school as well as allowing DEL to identify young people who are no longer in education, employment or training with a view to re-engagement. The Committee agreed that it was content with the proposed amendment which was in the following terms:

Schedule 7, page 64, line 4, at end insert –

‘(4) In Article 37(8) after sub-paragraph (c) insert –

“(ca) the Board of Governors of a grant-aided school; and

(cb) the proprietor of an independent school.".’

376. In its final clause by clause consideration of the Bill on 23 September 2009 the Committee agreed that it would recommend to the Assembly that Schedule 7 be amended as proposed by the Department, as set out above.

Repeals (Schedule 8)

377. This Schedule makes provision for various repeals of existing legislation.

378. On 4 September 2009 the Committee received the Department’s list of consolidated amendments in relation to Schedule 8 which stated:

‘Schedule 8, page 72, leave out lines 13 and 14

Schedule 8, page 72, leave out lines 20 to 24 and insert—

‘Article 25’

Schedule 8, page 73, leave out lines 12 and 13

Schedule 8, page 73, leave out lines 35 and 36 and insert—

‘In Article 61(1) the words “situated in its area".

Article 61(3).’

Schedule 8, page 73, leave out lines 39 and 40 and insert—

‘In Article 63(1) the words “situated in its area".

Article 63(3).’

Schedule 8, page 73, line 47, leave out from beginning to end of line 3 on page 74 and insert ‘Article 70(3) to (7), (9) and (10).’

Schedule 8, page 74, line 41, at end insert—‘Article 28.’

379. The Committee noted the comments and concerns of CCMS and NICCE in relation to the repeal of Schedule II of the 1998 Order which covered the role of Boards of Governors in relation to discipline and grievances, their right to suspend staff and provisions dealing with dismissal and the need for clarification on where these powers now lay. The Department’s response to CCMS stated:

‘Schedule 2 to the Education (Northern Ireland) Order 1998, which contains provisions on the role of boards of governors in employment matters is to be repealed. Instead, the respective roles of boards of governors and the ESA will be set out in schemes of employment’

380. The Committee considered this issue at its meeting on 16 September and noted that the ‘provisions on the role of boards of governors in employment matters’ are to be included in the draft Regulations being proposed by the Minister. (See paragraphs 128-134 above and Appendix 4). Some Members expressed concern regarding the lack of consultation with at least one of the main school sector stakeholders in relation to the draft Employment Regulations.

381. The Committee considered Schedules 8, and noted the Department’s proposed amendments to the Schedule, at its meeting of 16 September 2009. Subject to the concern noted above, the Committee raised no other issues in relation to Schedule 8. In its final clause by clause consideration of the Bill on 23 September 2009, the Committee agreed that it would recommend to the Assembly that Schedule 8 be amended as proposed by the Department, as set out above.

Long Title

382. At its meeting on 30 September 2009 the Committee agreed that it was content with the Long Title of the Bill as drafted.

Agreement that Report be printed

383. At its meeting on 30 September 2009 the Committee agreed that this Report be the First Report of the Committee for Education for 2009-2010 to the Assembly and the Committee ordered the Report to be printed on 30 September 2009.

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

The Education and Skills Authority

Introduction

Section 2 of this report contains the details of the Committee’s ‘Consideration of the Bill’, either by individual Clause or by groups of Clauses and specific paragraphs of the Schedules of the Bill, where concerns and issues arose.

What follows are the final decisions on the Committee’s scrutiny of the Clauses and Schedules of the Bill. Members and other readers of this Report may wish to refer back to the relevant paragraphs in Section 2 of the Report to gain a full understanding of the Committee’s consideration and deliberations on the individual Clauses and Schedules, alongside the final decisions set out below.

The Education and Skills Authority

Clause 1. The Education and Skills Authority

384. The Committee agreed that it was content with Clause 1 as drafted.

Clause 2. Functions and general duty of ESA

385. The Committee agreed that it would recommend to the Assembly that Clause 2 be amended as follows:

Proposed amendment, Clause 2, page 1, paragraph (2)(b) line 15, at end insert:

‘that contribute towards the spiritual, moral, cultural, social, mental, intellectual and physical development of those for whom those services are provided;’

Proposed amendment, Clause 2, page 1, paragraph (2)(a), line 10, after ‘social’ insert ‘mental’.

The Committee did not agreed a proposed Departmental amendment (set out in paragraph 97) to Clause 2. The Committee agreed Clause 2 as amended by the proposals of the Committee (see paragraph 90).

ESA to be single employing authority for grant-aided schools

Clause 3. ESA to employ all staff of grant-aided schools

386. The Committee did not agree to recommend the proposed Departmental amendment to Clause 3 (set out in paragraph 110). The Committee agreed that it was not content with Clause 3 as drafted.

Clause 4. Employment schemes for grant-aided schools

387. The Committee did not agree to recommend the proposed Departmental amendment to Clause 4 (set out in paragraph 133). The Committee agreed that it was not content with Clause 4 as drafted.

Clause 5. Preparation and approval of employment schemes

388. The Committee agreed that it was content with Clause 5 as drafted.

Clause 6. Reserve power of ESA to make employment scheme

389. The Committee did not agree to recommend the proposed Departmental amendment to Clause 6 (set out in paragraph 136). The Committee agreed that it was not content with Clause 6 as drafted.

Clause 7. Revision of employment schemes

390. The Committee agreed that it was content with Clause 7 as drafted.

Clause 8. Effect of employment scheme

391. The Committee agreed that it was content with Clause 8 as drafted.

Clause 9. Transfer to ESA of staff employed by Boards of Governors

392. The Committee agreed that it was content with Clause 9 as drafted.

Clause 10. ESA to employ peripatetic teachers

393. The Committee agreed that it was content with Clause 10 as drafted.

Clause 11. Salaries, etc. of staff: administrative and financial arrangements

394. The Committee agreed to recommend to the Assembly that Clause 11 be amended as proposed by the Department as set out in paragraph 150 of this Report. The Committee agreed it was content with Clause 11 as amended.

Clause 12. Modification of employment law

395. The Committee agreed that it was content with Clause 12 as drafted.

Other functions of ESA

Clause 13. ESA to provide or secure provision of training and advisory and support services for schools

396. The Committee agreed that it was content with Clause 13 as drafted.

Clause 14. ESA to provide library services to grant-aided schools and other educational establishments

397. The Committee agreed that it was content with Clause 14 as drafted.

Clause 15. ESA to secure provision of educational and youth services and facilities

398. The Committee agreed that it was content with Clause 15 as drafted.

Clause 16. ESA to pay capital grants to voluntary and grant-maintained integrated schools

399. The Committee agreed that it was content with Clause 16 as drafted.

New Clause after Clause 16 – ESA to contract for certain capital works

The Committee agreed to recommend to the Assembly that the new Clause (as set out in paragraph 177) be inserted after Clause 16 as proposed by the Department.

Clause 17. ESA to pay superannuation benefits of teachers

400. The Committee agreed to recommend to the Assembly that Clause 17 be amended as proposed by the Department as set out in paragraphs 179-180.

Clause 18. Ancillary powers of ESA

401. The Committee agreed that it was content with Clause 18 as drafted.

Clause 19. Power of ESA to undertake commercial activities

402. The Committee agreed that it was content with Clause 19 as drafted.

Clause 20. Power to confer functions on ESA in relation to civil contingencies

403. The Committee agreed that it was content with Clause 20 as drafted.

Dissolution of certain bodies and transfers

Clause 21. Dissolution of certain statutory bodies

404. The Committee agreed that it was content with Clause 21 as drafted.

Clause 22. Transfer of assets, liabilities and staff

405. The Committee agreed that it was content with Clause 22 as drafted.

General duty of Department and DEL

Clause 23. General duty of the Department and DEL

406. The Committee agreed to recommend to the Assembly that Clause 23 be amended in the following terms:

Clause 23, page 12, line 8,

after ‘social’ insert ‘mental’.

The Committee agreed that it was content with Clause 23 as amended.

Examinations, assessments, qualifications, the curriculum, etc.

Clause 24. Duty of ESA to conduct examinations and assessments

407. The Committee agreed that it was content with Clause 24 as drafted.

Clause 25. Other functions of ESA in relation to the curriculum, examinations and Assessments

408. The Committee agreed that it was content with Clause 25 as drafted.

Clause 26. Discharge by ESA of its functions under sections 24 and 25

409. The Committee agreed to recommend to the Assembly that Clause 26 be amended as proposed by the Department as set out in paragraphs 217-218. The Committee did not agree to recommend a proposed Departmental amendment as set out in paragraphs 215-216.

The Committee agreed that it was content with Clause 26, as amended by the Department’s amendment agreed by the Committee.

Clause 27. Functions of the Department in relation to accreditation of certain external qualifications

410. The Committee agreed to recommend to the Assembly Clause 27 be amended as proposed by the Department as set out in paragraphs 223 and 226.

Clause 28. Approval of courses leading to external qualifications
Education

411. The Committee agreed to recommend to the Assembly Clause 28 be amended as proposed by the Department as set out in paragraph 229.

New Clause - Power of ESA to conduct examinations specified by DEL

New Clause - Functions of ESA in relation to qualifications designated by DEL

The Committee agreed to recommend to the Assembly that the new clauses as set out in paragraph 231 be inserted after Clause 38 as proposed by the Department.

Powers of General Teaching Council

Clause 29. Disciplinary powers of General Teaching Council

412. The Committee agreed that it was content with Clause 29 as drafted.

Schemes of management for grant-aided schools

Clause 30. Schemes of management

413. The Committee agreed to recommend to the Assembly that Clause 30 be amended in the terms set out below:

Clause 30, page 17, line 4, at end insert-

‘(6) The Department shall by regulations make provision as to the form and content of schemes of management.’

The Committee agreed to Clause 30 as amended.

A proposed Departmental amendment to Clause 30 was received by the Committee on 30 September 2009 in relation to a proposed duty on the Boards of Governors of Irish speaking schools (see paragraph 265 above). The Committee agreed to simply note this amendment.

Clause 31. Preparation and approval of schemes of management

414. The Committee did not agree to recommend a proposed Departmental amendment as set out in paragraph 254. The Committee agreed that it was not content with Clause 31 as drafted.

Clause 32. Reserve power of ESA to make scheme of management

415. The Committee agreed to recommend to the Assembly that, consequent to the proposed amendment to Clause 30 referred to above, Clause 32 be amended in the terms set out below:

Clause 32, page 17, line 42, leave out from ‘subsection’ to ‘cannot’ in line 2 on page 18 and insert ‘section 31(1)(b) does not comply with regulations under section 30(6) or does not accord with any guidance issued by ESA under section 31(3) and cannot (in either case)’.

The Committee agreed that it was content with Clause 32, as amended.

Clause 33. Revision of schemes of management

416. The Committee agreed that it was content with Clause 33 as drafted.

Boards of Governors

Clause 34. Duties of Board of Governors in relation to achievement of high standards of educational attainment

417. The Committee agreed that it was content with Clause 34 as drafted.

Clause 35. Community governors for controlled, maintained, grant-maintained integrated and certain voluntary grammar schools

418. The Committee agreed that it was content with Clause 35 as drafted.

Clause 36. Part-time teachers to be eligible for election as governors

419. The Committee agreed that it was content with Clause 36 as drafted.

Inspections

Clause 37. Inspections on behalf of the Department

420. The Committee agreed to recommend to the Assembly Clause 37 be amended as proposed by the Department in paragraph 296.

Clause 38. Powers of inspectors

421. The Committee agreed that it was content with Clause 38 as drafted.

Clause 39. Reports and action plans

422. The Committee agreed that it was content with Clause 39 as drafted.

Clause 40. Inspections of library premises

423. The Committee agreed that it was content with Clause 40 as drafted.

Clause 41. Inspections on behalf of DEL

424. The Committee agreed that it was content with Clause 41 as drafted.

Clause 42. Assessors and lay persons

425. The Committee agreed to recommend to the Assembly Clause 42 be amended as proposed by the Department as set out in paragraph 299.

Grants for educational and youth services

Clause 43. Grants for educational and youth services, etc.

426. The Committee agreed that it was content with Clause 43 as drafted.

Protection of children and young persons

Clause 44. Safeguarding and promoting welfare of children and young persons

427. The Committee agreed that it was content with Clause 44 as drafted.

Clause 45. Duty on providers of funded pre-school education to safeguard and promote welfare of children

428. The Committee agreed that it was content with Clause 45 as drafted.

Clause 46. Duty of providers of educational and youth services to safeguard and promote welfare of children

429. The Committee agreed that it was content with Clause 46 as drafted.

Clause 47. Directions as to exercise of child protection duties by Board of Governors

430. The Committee agreed that it was content with Clause 47 as drafted.

Clause 48. Duty of co-operation concerning welfare and protection of children and young persons

431. The Committee agreed that it was content with Clause 48 as drafted.

Catholic maintained schools

Clause 49. Catholic maintained schools

432. The Committee agreed to recommend to the Assembly that Clause 49 be removed as proposed by the Department.

Supplementary

Clause 50. Supplementary, incidental, consequential, transitional provision etc.

433. The Committee agreed that it was content with Clause 50 as drafted.

Clause 51. Regulations and orders

434. The Committee considered proposed Committee amendments to Clause 51 to make important regulations and orders under this Bill subject to draft affirmative resolution by the Assembly, as opposed to negative procedure as set out below:

Clause 51, page 29, line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29, line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under Schedule 1, paragraph 7 unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

The Committee agreed the proposed Committee amendment as set out above.

Clause 51, page 29, line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29, line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under section 30(6) unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

The Committee agreed the proposed Committee amendment as set out above.

Clause 51, page 29, line 16, paragraph (1), at start insert:

‘Except as provided by subsection (6),’

Clause 51, page 29, line 24, paragraph 5, at end insert:

‘(6) No regulations shall be made under section 4(4) unless a draft of those regulations has been laid before, and approved by resolution of, the Assembly.’

The Committee agreed that should the proposed Departmental amendment to Clause 4(4) be tabled as an amendment, the Committee recommends its amendment as set out above to Clause 51.

Clause 51, page 29. line 17,

leave out ‘section 50(1)’ and insert ‘sections 50(1) or 12(1)’:

The Committee agreed the proposed Committee amendment as set out above.

The Committee agreed Clause 51 as amended by the Committee.

Clause 52. Interpretation

435. The Committee agreed that it was content with Clause 52 as drafted.

Clause 53. Minor and consequential amendments and repeals and revocations

436. The Committee agreed that it was content with Clause 53 as drafted.

Clause 54. Commencement

437. The Committee agreed to recommend to the Assembly that Clause 54 be amended as proposed by the Department as set out in paragraph 338.

Clause 55. Short title

438. The Committee agreed that it was content with Clause 55 as drafted.

Schedules:

Schedule 1 The Education and Skills Authority

439. The Committee agreed to recommend to the Assembly that Schedule 1 be amended as set out below:

Schedule 1, paragraph 2(1)(b), page 31, line 15,

leave out ‘7 or more than 11’ and insert ‘15 or more than 20’

Schedule 1, page 31, paragraph 2(2)(b), line 23, at end insert:

‘and:

(c) that the members, as a group, are representative of the community in Northern Ireland’

Schedule 1, page 33, paragraph 7, line 7,
after ‘may’ insert:

‘to the extent that the Department may by regulations provide,’

Schedule 1, page 33, paragraph 7, line 8

insert new sub-clause (2) as set out below and re-number existing sub-clauses (2) and (3) accordingly:

‘(2) Regulations made under sub- paragraph (1) shall include those functions which may be exercised by each committee.’

The Committee agreed that it was content with Schedule 1 as amended.

Schedule 2 Transfer to ESA of staff employed by Boards of Governors

440. The Committee agreed that it was content with Schedule 2 as drafted.

Schedule 3 Transfer of assets, liabilities and staff of dissolved bodies

441. The Committee agreed to recommend to the Assembly that Schedule 3 be amended as proposed by the Department in paragraphs 353 and 354.

The Committee agreed that it was content with Schedule 3 as amended.

Schedule 4 Transfer of certain assets and liabilities of CCMS before appointed day

442. The Committee agreed to recommend to the Assembly that Schedule 4 be amended as proposed by the Department as set out in paragraph 358.

Schedule 5 Transfer of certain staff of the Department

443. The Committee agreed that it was content with Schedule 5 as drafted.

Schedule 6 Schedule 1A to the Education (Northern Ireland) Order 1998, as inserted

444. The Committee agreed that it was content with Schedule 6 as drafted.

Schedule 7 Minor and consequential amendments

445. The Committee agreed to recommend to the Assembly that Schedule 7 be amended as proposed by the Department as set out in paragraphs 365-376.

Schedule 8 Repeals

446. The Committee agreed to recommend to the Assembly that Schedule 8 be amended as proposed by the Department as set out in paragraph 377.

Long Title

447. At its meeting on 30 September 2009 the Committee agreed that it was content with the Long Title of the Bill as drafted.

Agreement that Report be printed

448. At its meeting on 30 September 2009 the Committee agreed that this Report be the First Report of the Committee for Education for 2009-2010 to the Assembly and the Committee ordered the Report to be printed on 30 September 2009.

Appendix 1

Minutes of Proceedings
Relating to the Report

Wednesday, 10 December 2008
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mrs M Bradley
M T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr K Robinson

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)
Ms P Casey (Bill Office Clerk)

Apologies: Ms M O’Neill
Mr E Poots
Mr Dominic Bradley

The Chairperson opened the meeting at 10.05am in public session.

6. Departmental Briefing on Education Bill

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration and Jeff Brown, Review of Public Administration Legislation Team, joined the meeting at 12.11pm.

The officials gave a brief presentation on the Education Bill, the two Bill approach, the timetable for passage of the Bills and the need for clarity in acknowledging the Committee’s significant concerns, and answered questions on a number of issues including: the further information required by the Committee, on areas such as sub-regional structures and sectoral bodies (for example the controlled sector body), to enable the Committee to properly scrutinise the Bill; concerns on local accountability of the ESA and the reality of the powers and responsibility to be devolved by ESA to schools; the willingness of the Minister of Education to meet with the Committee; the effect of uncertainty around RPA on the school system; the savings to be achieved through job reductions, rationalisation and centralisation of back-office functions, and the risk of expertise being lost; the need to have the Bill on the statute book by summer 2009 as opposed to the end of 2009.

Mr Robinson rejoined the meeting at 12.16pm.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.41pm.

The Committee noted the draft Public Notice, draft Letter to Stakeholders and draft list of stakeholders to be consulted.

Agreed: the Committee agreed the text of the draft Public Notice and Letter to Stakeholders. The Committee agreed some additions to the list of stakeholders and that the consultation period would run for a six week period from 12 January to 20 February 2009.

[EXTRACT]

Wednesday, 14 January 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
M T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr K Robinson

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

The Chairperson opened the meeting at 10.07am in public session.

6. Departmental Briefing on Education Bill

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration and Joe Reynolds, Review of Public Administration Team, joined the meeting at 10.25am.

Mr Robinson joined the meeting at 10.33am.

Mr McCrea joined the meeting at 10.37am.

The officials gave a presentation on the proposed structure of the Education & Skills Authority (ESA) at regional and local levels. They answered questions on a number of issues, including: what references there are in the Bill to the structure and sub-regional structure for the ESA; what staffing structure is envisaged below the senior official level for each of the six local teams; the change of emphasis in the rationale for the ESA from making savings to raising standards; whether there was any empirical evidence to suggest that the development of a single education authority would improve standards; what incentives, in terms of rewards, there would be for high achieving schools; the change management process generally, the timing of recruitment and appointment of senior staff to the ESA and whether this would result in “asset stripping" of the Education and Library Boards before the ESA was in place; the powers and composition of Local Committees and the appointment mechanisms for Local Committee members; the timing of the appointment of the ESA Chairperson designate and his or her role in other appointments.

Mrs Bradley left the meeting at 11.54am.

The Chairperson thanked the witnesses for an informative briefing and the witnesses left the meeting at 12.19pm.

Agreed: the Committee would write to the Department to confirm agreement that officials would provide the Committee with a paper to include a worked up example of what the envisaged change in structure and approximate staffing levels would look like, from the current structure to an ESA Regional and Sub Regional structure, and bring this back to Committee; and a further paper on the proposed powers, responsibilities and make up of a Local Committee, including how members of a Local Committee would be appointed.

7. Education Bill - Extension of Committee Stage

The Chairperson reminded Members, and in particular Party Education Spokespersons, to consider the date to which the Committee will wish the Committee Stage of the Education Bill to be extended, in order to complete the Committee Stage scrutiny of the Bill and report to the Assembly. The Clerk reminded Members of the timescales set out in his briefing note to the Committee of 5 December 2008 and that a decision on the date would have to be taken at the Committee’s next meeting.

Agreed: the Committee would consider this matter at its meeting on 21 January.

[EXTRACT]

Wednesday, 21 January 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
M T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apolgies: Mr Ken Robinson

The Deputy Chairperson opened the meeting at 10.04am in public session.

6. Departmental Briefing on Education Bill

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration and Joe Reynolds, Review of Public Administration Team, joined the meeting at 10.27am.

The officials gave a presentation on the proposed roles and responsibilities of Sectoral Organisations and answered questions on a number of issues, including: papers provided by ESAIT to stakeholders; the role of Sectoral Organisations in the area-based planning process for schools; the lack of any existing body representing schools in the controlled sector and the necessity of providing support for developing such a representative body; the role of TRC, and other churches in the controlled sector body; the Department’s efforts to encourage the formation of such a body; the protection for the Catholic ethos of schools and the respective roles of Trustees and boards of governors in relation to ethos and as the “submitting authority" of Employment and Management schemes; evolution of the sectoral bodies and potential school movement between sectors; the inability of integrated schools to change status, equality issues between sectors and progress on the EQIA; the ethos of different controlled schools including the rights of individual children and the community served by the school; the ability of schools, such as controlled grammars, to opt for greater autonomy; the challenge role for sectoral bodies to ESA; the danger of sectoral bodies ‘withering on the vine’ and an alternative structure based on criteria such as ‘inner-city schools’, cutting across existing sectoral boundaries; the importance of Ministerial and Executive decisions on certain policies including area planning in determining the outcomes of the system being put in place by the Bill.

Mr Lunn left the meeting at 11.21am

Mr Lunn rejoined the meeting at 11.28am

Mr Bradley left the meeting at 11.29am

Mr Bradley rejoined the meeting at 11.40am

The officials gave a presentation on the ESA as the Single Employing Authority and a Review of Employment Opportunities for Teaching Staff and answered questions on a number of issues, including: the ‘voluntary principle’ enunciated by the GBA and the efforts by the Department to address the concerns of the GBA; the level of autonomy of schools in the appointment and dismissal of staff and the nature of the ESA ratification of schools’ decisions; the control that the ESA may exercise through approval of mandatory Schemes of Employment and the right to require a Board of Governors to reconsider a decision; the level and range of support services which will be available from ESA, including procurement expertise; the freedom for schools to group together to provide or purchase services such as those currently provided by CASS; the tension between the degree of accountability and control appropriate to a publicly funded school and the ‘voluntary principle’; the nature of any evidence of inconsistency in the voluntary grammar sector; the legal liability of individual members of boards of governors; the effect of the exclusion of teacher recruitment from the Fair Employment and Treatment (NI) Order 1998 (“FETO") and the likelihood of positions coming within the ’essential nature of the job’ FETO exception if the FETO exclusion were removed; how the teaching certificate in religious education requirement may be used, the accessibility and nature of courses leading to the certificate and whether these contributed to ‘structural inequality/barriers’.

Mr McCausland left the meeting at 11.59am

Mr McCausland rejoined the meeting at 12.02pm

Mr Poots exits the meeting at 12.25pm

Mr Poots rejoined the meeting at 12.28pm

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.32pm.

Agreed: the Committee agreed that it would write to the Department requesting an update on the EQIA/screening currently nearing completion and factual information on the use of teaching certificates.

7. Education Bill - Extension of Committee Stage

Members considered the Committee’s draft motion to extend the Committee Stage of the Education Bill. This included the length of time needed for the Committee Stage in light of the first and second Education Bills being one legislative programme, that the second bill would not be available for some time, the need for the Committee to have confidence in the entirety of the legislative programme and the Department’s target date of 1 January 2010 for the Bill to come into effect.

The Chairperson proposed an extension date of 30 September 2009. Mr O’Dowd proposed an alternative extension date of 1 June 2009.

Question put: That the draft motion ‘Extension of Committee Stage: Education Bill (NIA Bill 3/08)’ be amended to read “That, in accordance with Standing Order 33(4), the period referred to in Standing Order 33(2) be extended to 1 June 2009 in relation to the Committee Stage of the Education Bill (NIA Bill 3/08)"

The Committee divided, Ayes 2; Noes 7.

AYES

Mr O’Dowd, Ms O’Neill

NOES

Mr Bradley, Mr Lunn, Mr McCausland, Mr McCrea, Miss McIlveen

Mr Poots, Mr Storey

The proposal accordingly fell.

Question put: That the draft motion ‘Extension of Committee Stage: Education Bill (NIA Bill 3/08)’ be amended to read “That, in accordance with Standing Order 33(4), the period referred to in Standing Order 33(2) be extended to 30 September 2009 in relation to the Committee Stage of the Education Bill (NIA Bill 3/08)"

The Committee divided, Ayes 7; Noes 2.

AYES

Mr Bradley, Mr Lunn, Mr McCausland, Mr McCrea, Miss McIlveen

Mr Poots, Mr Storey

NOES

Mr O’Dowd, Ms O’Neill

Agreed: The Committee agreed that the draft motion ‘Extension of Committee Stage: Education Bill (NIA Bill 3/08)’ be amended to read “That, in accordance with Standing Order 33(4), the period referred to in Standing Order 33(2) be extended to 30 September 2009 in relation to the Committee Stage of the Education Bill (NIA Bill 3/08)" and that the amended motion be submitted for consideration by the Business Committee to agree a debate by the Assembly in accordance with Standing Orders.

[EXTRACT]

Wednesday, 28 January 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

The Chairperson opened the meeting at 10.03am in public session.

5. Education Bill

(a) Departmental Briefing - Designing Modern Education Services

Gavin Boyd, Designate CEO of ESA, John McGrath, Deputy Secretary, and Mark Browne, Programme Director of the ESA Implementation Team (ESAIT) joined the meeting at 10.18am.

Mr McCrea joined the meeting at 10.20am

Mr Poots joined the meeting at 10.26am

The officials gave a presentation on designing modern education services, the methodology followed by ESAIT, the workshops held with education managers and answered questions on a number of issues, including: the availability of draft costed organisational structures showing local and regional staff allocations for the 20 service areas; whether as a result of the workshops held, agreement had been reached on regional and local functional splits in services; the number of local area teams; the risks in the process of moving from old to new centralised IT systems; whether the centralisation of some functions would be Belfast-centric; expressed levels of satisfaction regarding the workshops held; centralisation of the procurement of services with potential for an adverse impact on small local providers; the level of influence of the local advisory committees; establishment of a mechanism for local decision making; change in emphasis for the ESA from cost savings to educational outcomes; range of figures for projected savings to be made from voluntary redundancies; concerns regarding the potential loss of key experienced staff through the voluntary redundancy process; potential for greater rationalisation and savings within administration and redirection of funds to front-line services.

Mr McCrea left the meeting at 11.26am

The Chairperson thanked the witnesses for an informative briefing and the ESAIT Programme Director left the meeting at 11.28am.

Ms O’Neill left the meeting at 11.29am

Mr T Elliott left the meeting at 11.29am

(b) Departmental Briefing – ESA – Outline Business Case

Gavin Boyd, Designate CEO of ESA and John McGrath, Deputy Secretary, began the second presentation at 11.29am. They were later joined by Catherine Daly, Head of Finance Division at 11.56am.

Ms O’Neill rejoined the meeting at 12.05pm

The officials gave a presentation on ESA Outline Business Case and answered questions on a number of issues, including: when the full business case will be finalised; existing E&LBs shared services and where the main savings in the OBC will come from; potential for rationalisation of education initiatives; the administrative burden on teachers and principals; potential further savings in administration costs; whether ESA will take over responsibility for pension schemes; position of those teachers whose applications for voluntary redundancies were lodged before and after November 2008; the official’s growing confidence that the projected savings would be achieved and in the OBC generally.

Agreed: that the Committee would write to the Department of Education requesting the following information:

  • the full business case to be finalised by summer 2009 is forwarded as soon as available;
  • an estimate of the costs involved (based on administrative staff and teachers time) in administering educational initiatives;
  • a breakdown of the different roles included in the ‘Middle Management/Professions’ category referred to in page 46 of the OBC;
  • further information in relation to the six possible costs and benefits listed in page 48 of the OBC, including approximate amounts for each of the listed savings/costs.
  • the position of teachers who have applied for early retirement before and after November 2008, to include reference to the bids registered in the Strategic Stocktake exercise, including the implications of the bids not being met or only partly met.

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 12.17pm.

[EXTRACT]

Wednesday, 4 February 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr T Lunn

The Chairperson opened the meeting at 10.02am in public session.

6. Education Bill - Departmental Briefing – Ownership of Controlled Schools Estate

John McGrath, Deputy Secretary, and Chris Stewart, Head of Review of Public Administration joined the meeting at 10.14am.

The officials gave a presentation on ownership of controlled schools estate and answered questions on a number of issues, including: inequalities between the school sectors in the arrangement for the disposal of assets; the mechanisms in place to protect public investment, including clawback arrangements; representation on, and appointments to, the working groups to establish the controlled sector bodies; VAT exemption status transfer from E&LBs to the new ownership body; potential conflict of interests if ESA has ownership of the controlled school estate for a period of time; promoting ‘accountable autonomy’ of schools and consideration of area based planning; role, status, membership and powers of controlled sector ownership body;; ensuring that appointments, particularly public appointments, to the ownership body are representative and reflective of the school population; creating potential pathways for schools to attain ownership of own estates.

Mr Bradley left the meeting at 11.23am

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 11.26am.

Agreed: that the Committee would write to the Department of Education:

  • requesting a more detailed account of the arrangements for the ‘clawback’ of any public monies from school properties disposed of by the owners and how the disposal of assets, in both the maintained and controlled sectors, has worked in practice in recent years.
  • seeking the Department’s proposals to address concerns on how the membership of the Ownership Body might be made reflective and representative of the school population and whether the independence of the Representative Body would be affected by a potential overlap of membership with the Ownership Body.
  • Requesting provision of further information on the theme of ‘Accountable Autonomy’ and transformation pathways to ‘community schools’.

[EXTRACT]

Wednesday, 11 February 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Miss M McIlveen
Mr J O’Dowd
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr B Morgan (Clerical Officer)

Apologies: Mr N McCausland
Mr B McCrea
Ms M O’Neill

The Chairperson opened the meeting at 10.06am in public session.

6. Education Bill – Area Based Planning

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration, Eugene Rooney, Head of Development & Infrastructure and Tom Flynn, Programme Development Support joined the meeting at 10.43am.

The officials gave a presentation on Area Based Planning and answered questions from members on a number of issues including: the timescale for final area plans to be in place and any interim arrangements; what area plan boundaries will be used; the key revisions/additions being considered for the revised policy paper following consultation;

Mr Poots joined the meeting at 10.56am

Mrs Bradley left the meeting at 10.58am

the need for clarity and role definition of the different bodies involved in the Area Based Planning process; the need for the revised policy to make references to the Sustainable Schools Policy; treatment of small rural schools particularly in relation to decisions based on pupil numbers; operating area based planning within an unregulated transfer system; ownership of a school affecting decision making on development proposals; representation of, and engagement with, the pre-school and youth sectors;

Mrs Bradley rejoined the meeting at 11.26am

perceived irregularities regarding the controlled sector; the terms of reference for the Area Planning Groups post primary schools exercise; capital investment; club bank arrangements and new Integrated and Irish Medium schools; concern that area based planning could be used to promote other education policies on issues on which consensus has not been reached.

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 12.00 noon.

Agreed: that the Committee would write to the Department of Education requesting that the revised policy paper is brought to Committee by the end of March 2009.

[EXTRACT]

Wednesday, 18 February 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr T Lunn
Mr E Poots

The Chairperson opened the meeting at 10.05am in public session.

6. Education Bill – legislation, secondary legislation powers & commencement provisions

Chris Stewart, Head of Review of Public Administration, Jeff Brown, Review of Public Administration and Eve Stewart, Review of Public Administration joined the meeting at 10.47am.

Mr Bradley left the meeting at 10.56am

The officials gave a presentation on commencement arrangements, powers to make subordinate legislation, and links to existing primary legislation on the Education Bill and answered questions from members on a number of issues including: the provisions of clause 50; whether the Department will consult with the Committee on the timing of the other provisions set out in clause 54(2); whether Orders subjects to negative resolution could be changed to be made subject to affirmative resolution; the areas of the Bill subject to amendment; which Orders are not subject to Assembly control procedures; explanation of the powers set out in clause 12; how similar the provisions are to those implementing RPA in, for example, Health & Social Care; the rationale for the power to ‘direct’ in the proposed clause 18A to be inserted in the Education and Libraries (NI) Order 2003 and the duties of Boards of Governors generally; whether other legislation affected by the Bill could be consolidated in the Bill and options for consolidation generally; the effect of the Bill on home schooling and independent schools.

Mr Bradley rejoined the meeting at 11.28am

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 11.43am.

[EXTRACT]

Wednesday, 25 February 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mr T Elliott
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mrs M Bradley
Mr T Lunn
Mr J O’Dowd

The Chairperson opened the meeting at 10.08am in public session.

5. Education Bill – Employment Schemes, Schemes of Management, Boards of Governors

Chris Stewart, Head of Review of Public Administration, Jeff Brown and Peter Burns, Review of Public Administration Legislation Team joined the meeting at 10.27am.

Mr Elliott rejoined the meeting at 10.32am.

The officials gave a presentation on Employment Schemes, and answered questions from members on a number of issues including: the provisions within Clause 8 enabling ESA to send back decisions to a Board of Governors and the inclusion of an appeals mechanism; the use of Article 101 of the Education and Libraries (Northern Ireland) Order 1986; whether Clause 8 goes against the ethos of RPA by micro-managing schools; whether the schemes of employment under the ESA will differ from any existing schemes; responsibility for Trade Union negotiations; the Department’s proposed amendment to Clause 3 and examples of how the ethos of the school can be reflected in the schemes of management and employment; perceived disparity in treatment of the Controlled sector in comparison to that of the Irish Medium and Maintained sectors; the lack of progress in establishing the sectoral body representing the Controlled Sector resulting in the Sector not being able to influence fundamental issues in the Bill such as the ownership body for controlled schools; ensuring equality within the sectors in education; and determining the intention of the individual clauses of the bill once enacted.

The officials gave a presentation on Schemes of Management, and answered a question on how the new provisions compare to existing provisions.

Mr Poots left the meeting at 11.49am.

Mr Elliott left the meeting at 12.12pm.

The officials gave a presentation on Boards of Governors and answered questions from members on a number of issues including: appointment of community governors; TRC representation on boards of governors; the consultation with existing governors on new appointments; explanation of the duty (within clause 34) on governors ‘to cooperate’ with the ESA; clarification on responsibility for child protection issues; foundation governors; the legislative changes required to ensure that the ownership body responsible for controlled schools is representative of the community that it serves.

Mr Poots rejoined the meeting at 12.18pm.

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 12.20pm

Agreed: that the Committee would write to the Department of Education highlighting areas of concern and in particular the concern that the intentions of the Bill are not adequately reflected within the detail of the legislation. In addition, to ask the Department to provide information on the legislative changes required to ensure that the Controlled Schools Ownership Body is representative of the community that it serves.

[EXTRACT]

Wednesday, 4 March 2009
Room 144, Parliament Buildings

Present: Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr M Storey (Chairperson)
Mr T Elliott
Ms M O’Neill

The Deputy Chairperson opened the meeting at 10.03am in public session.

5. Education Bill – Schedules and related Clauses

Chris Stewart, Head of Review of Public Administration, Jeff Brown and Peter Burns, Review of Public Administration Legislation Team joined the meeting at 10.09am.

Mr McCrea joined the meeting at 10.10am.

The officials gave a presentation on the establishment of the ESA; Clauses 1 – 2 and Schedule 1 and answered questions from members on a number of issues including: the number of members and composition of the ESA; ensuring there is scope for sufficient breadth of skills, knowledge and experience on the ESA; rationale for the majority of members being District Councillors; the time commitment involved for members of the ESA; the Assembly disqualification provisions; principle of merit and proportionality; conflict of interest; cross-party representation on ESA; provisions to ensure that changes in ESA membership are staggered; the number and composition of sub committees;

Mr Poots joined the meeting at 10.17am.

the use of the terms ‘spiritual’ and ‘social’ within Clause 2; representation of nursery and pre-school provision across the statutory, private and voluntary sectors; explanation for the provisions within Clause 2 (5) and 2 (6) for ESA to carry out administrative functions at the direction of DE or DEL; the absence of provision for passing on ESA receipts; and provisions for ceasing membership of ESA committee(s), after ceasing ESA membership.

Mr Poots left the meeting at 10.44am.

The officials gave a presentation on Transfer of Staff; Clause 9 and Schedule 2 and answered questions from members on a number of issues including: how ESA will manage the harmonisation of staff salaries and terms and conditions; whether the Chief Executive Designate has begun negotiations with the Unions on this; how this related to the Education Workforce Review; whether the transfer arrangements are standard within RPA arrangements; and the transfer of civil servants to ESA.

The officials gave a presentation on Transfer of Assets; Clause 22 and Schedule 3, 4 and 5 and answered questions from members on a number of issues including: the formula for clawback and the scale and complexity of the transfer scheme.

The Chairperson thanked the witnesses for an informative briefing and the officials left the meeting at 11.22am.

Agreed: the Committee would write to the Department of Education highlighting the issues raised by the Committee and ask for:

  • Proposals on how to ensure a balance between the merit principle and the need to ensure an appropriate spread of representation amongst the membership of the ESA.
  • Request receipt of an outstanding paper on the local structures of ESA which will include reference to the role and composition of sub committees and indicate the number of committees that will be needed.
  • Details of the investment formula for clawback.
  • Details on the position of ESA Designate planning for asset transfers, harmonisation of staff salaries and terms and conditions and the relationship with the Education Workforce Review.
  • An explanation for why finance provisions within Clause 15 (4) of the Libraries Act (NI) 2008 are not provided for under ESA; and similarly why term of office provisions within Clause 5 (2)(a) of the Health and Social Care (Reform) Bill are not provided for under ESA.

Agreed: the Committee agreed to seek legal advice on whether there is a legal impediment for Members of the Assembly to sit on the ESA and whether this presents potential risk for conflict of interest.

[EXTRACT]

Wednesday, 11 March 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr D Bradley (Deputy Chairperson)

The Chairperson opened the meeting at 10.03am in public session.

5. Education Bill – Evidence Sessions

The Committee agreed that Mr Nelson McCausland would chair the meeting in the absence of the Chairperson, Mr Mervyn Storey and the Deputy Chairperson, Mr Dominic Bradley.

Mr Storey left the meeting at 10.11am and Mr McCausland took the Chair.

(a) Governing Bodies Association

Dr Evelyn Dermott, Chair of Governing Bodies Association, Brett Lockheart, Member of GBA Executive Committee and Finbar McCallion, Honorary Secretary joined the meeting at 10.12am.

Mr McCrea joined the meeting at 10.16am.

Mr Elliott joined the meeting at 10.20am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: why the GBA has not met with the Department further to the Minister’s invitation of 24 February; if Clause 8 (2) is clearly set out in model employment schemes and associated guidance and was subject to full consultation with submitting authorities and possible independent appeals systems and/or subject to regulations and control of the Assembly, whether this would remove some of GBA’s concerns in this regard; concerns regarding the bureaucracy involved with such proposed mechanisms; the assertion that ESA will be costly; loss of school autonomy; legal responsibility for employment matters and contracts of employment; the upholding and preservation of school ethos; interpretation of the law consistent with the ethos of the school; whether there would be legal barriers to schools being represented at employment tribunals; examples of provisions of anti discrimination and fair employment legislation that ought not to apply to schools; whether powers are being delegated to Boards of Governors; whether or not the intentions of the Bill are adequately reflected within the detail of the legislation; definition of accountable autonomy; accountability for public funds.

Mr McCrea left the meeting at 10.57am.

Mr McCausland thanked the witnesses for an informative briefing and they left the meeting at 10.58am.

(b) Northern Ireland Voluntary Grammar Schools’ Bursars Association

Stephen McConnell, Chair of Northern Ireland Voluntary Grammar Schools’ Bursars Association, John Robinson, Vice Chair of Northern Ireland Voluntary Grammar Schools’ Bursars Association, Shane McBrien, Committee Member and Bursar, St Malachy’s College Belfast joined the meeting at 11.00am.

Mr McCrea rejoined the meeting at 11.04am.

Mr Mc Crea left the meeting at 11.10am.

Mr Storey rejoined the meeting at 11.13am and resumed the chair.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: additional voluntary funding through parental and other contributions; parity of staff salaries and terms and conditions; importance of localised management; treatment of auxiliary and support staff; the job evaluation process; examples of differences in job descriptions across schools; public accountability of public funding; auditing controls and requirements; whether it would be appropriate for the Association or representatives from the voluntary grammar sector to meet with the Minister to discuss annual accounts; staff involved with additional educational activities within boarding and preparatory schools; concerns regarding the policy not being reflected in the Bill; ‘catch all’ concerns about Clause 18(1); if Clause 8 (2) is clearly set out in model employment schemes and associated guidance and was subject to full consultation with submitting authorities and possible independent appeals systems and/or subject to regulations and control of the Assembly, whether this would remove some of the Association’s concerns in this regard.

Mr McCrea rejoined the meeting at 11.26am.

Mr McCrea left the meeting at 11.28am.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 11.33am.

(c) Department of Education Response

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration, Eve Stewart, Review of Public Administration joined the meeting at 11.34am.

The officials responded to the presentations given by the Governing Bodies Association and Northern Ireland Voluntary Grammar Schools’ Bursars Association (NIVGSBA) and answered questions from members on a number of issues including the ‘catch all’ provisions within the Bill; whether the provisions in clause 8 including employment schemes and guidance should and can be subject to mechanisms for appeal and/or regulation by the Assembly; concerns that detail in relation to employment arrangements does not appear on the face of the Bill but in the accompanying guidance and schemes of employment; Article 101 and the powers of the Department to direct; lack of clarity in the legislation, employment rights between staff across the education sectors; concerns that the ethos of the schools would be undermined by ESA becoming the employing authority; who has lead responsibility for employment matters at tribunal and who pays for this process; whether ESA will provide equality between the different education sectors; concerns regarding the Ancillary powers of ESA within Clause 18; concerns about increased bureaucracy of ESA and whether a substantial proportion of budget would be spent within ESA and not directly on schools; savings targets regarding management costs and bureaucracy; targets relating to percentage of budget directed to schools; the timescale for ESA budgetary objectives and targets; timescale of rationalisation process; when the full costs of the new regime will be known; progress of the outline business case and final business case for ESA.

Mr McCrea rejoined the meeting at 11.43am.

Mr McCrea left the meeting at 11.44am.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.12pm.

Agreed: the Committee would provide copies of the GBA and NIVGSBA briefing papers to the Department of Education.

Agreed: the Committee would provide copies of the Department of Education’s response paper to GBA and NIVGSBA.

Agreed: the Committee would write to the Department of Education requesting they provide the following:

  • Proposals to address the GBA and NIVGSBA concerns regarding the effect of Clause 8 (2) in relation to schemes of employment and management schemes, perhaps to include a direction to Article 101, and mechanisms of appeal or regulation and control by the Assembly.
  • An indication of the benefit of the ESA in financial terms in relation to a figure or target in the form of an estimate of the percentage increase in the education budget going directly to schools.

Agreed: Committee Secretariat would prepare a draft letter to the Department detailing all Committee issues and requests for information on the Bill to date (already registered with the Department) for consideration at next week’s meeting.

Members noted the interim paper/ spreadsheet prepared by Committee Secretariat grouping stakeholder comments by clause or schedule.

[EXTRACT]

Wednesday, 18 March 2009
Senate Chamber, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr B McCrea

The Chairperson opened the meeting at 10.04am in public session.

5. Education Bill – Evidence Sessions

(a) Northern Ireland Commission for Catholic Education

Cardinal Sean Brady, Bishop Donal McKeown, Chair of the Commission, Bishop Patrick Walsh and Sister Eithne Woulfe, Commission Members, and John Gordon, Legal Adviser to the Commission joined the meeting at 10.18am.

Ms McIlveen joined the meeting at 10.23am.

Mr Poots joined the meeting at 10.36am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: lack of clarity within the Bill, particularly on employment issues; current representation and influence of trustees on Boards of Governors; the overarching ethos of Catholic school sector; sectoral identity, employment powers of CCMS being devolved to individual Boards of Governors; achieving streamlined form of governing schools and NICCE proposals; devolving responsibility locally; locally delegated autonomy of voluntary grammar schools sector;

Mr Elliott left the meeting at 11.12am.

if Clause 8 (2) is clearly set out in model employment schemes and associated guidance and was subject to full consultation with submitting authorities and possible independent appeals systems and/or subject to regulations and control of the Assembly, whether this would remove some of NICCE’s concerns in this regard; powers of schools to conduct and represent themselves at tribunals and in courts; conflict of legal opinion on this; clarification of clear autonomous employer role for Boards of Governors within the primary or secondary legislation; whether the proposed legislation diminishes the role of the Boards of Governors; whether the Commission is seeking further exemptions in the process; requirement for supported autonomy, the source of this support and whether the sectoral bodies should provide this support; the statutory support and encouragement provided for the Integrated and Irish Medium Sectors within Article 64 of the Education Reform Order and Article 89 of the 1998 Order; requirement for clarity on roles and functions of support bodies; critical link between employment and ethos; difference between the role of CCMS and ESA in the preservation of the ethos of the school; consultation with trustees on appointment of community governors; concerns regarding the councillor representation membership of ESA; whether ESA undermines the rights for a faith based education; whether membership of ESA should be reflective of the community; what discussions have taken place between the Commission and the Department on the Bill; faith based education provision within Scotland and Europe; concerns regarding preservation of the ethos; clause 3 being unacceptable in its present form.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.01pm.

(b) Council for Catholic Maintained Schools

Bishop John McAreavey, Chair of Council, Mr Donal Flanagan, Chief Executive, Mr Jim Clarke, Deputy Chief Executive, and Mrs La’Verne Montgomery, Head of Human Resources and Corporate Services joined the meeting at 12.02pm.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: if Clause 8 (2) is clearly set out in model employment schemes and associated guidance and was subject to full consultation with submitting authorities and possible independent appeals systems and/or subject to regulations and control of the Assembly, whether this would remove some of CCMS’s concerns in this regard; clarity in relation to the employment role of the Boards of Governors; the difference between the employing authority and employer; concerns regarding potential change of authority of Boards of Governors in respect of discipline, grievances and dismissals; lack of clarity in how ESA will exercise role of employing authority; legal accountability of employer/employing authority; role of CCMS in supporting the Catholic ethos; lack of clarity of Clause 3; exercise of accountable autonomy; concerns regarding the appointment of community governors; sensitivity to ethos within the definition of Community Governors ‘living and working in the local community’; roles of Boards of Governors and employing authority; representation of schools at tribunal and courts; change of emphasis from saving money to raising standards; co-operation between sectoral support bodies and ESA in raising standards; influence of sectoral bodies and their role and functions; how CCMS is constituted; retention of exemption on teacher recruitment.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.48pm.

Mrs Bradley left the meeting at 12.48pm.

Agreed: the Committee agreed to postpone the Department of Education’s response to the evidence sessions from NICCE and CCMS until the next meeting of the Committee on 25 March 2009.

Agreed: the Committee would provide copies of the Department’s response paper to NICCE and CCMS.

[EXTRACT]

Wednesday, 25 March 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mr T Lunn
Mr N McCausland
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mrs M Bradley
Mr T Elliott
Mr B McCrea

The Chairperson opened the meeting at 10.02am in public session.

5. Education Bill – Evidence Sessions

(a) Ulster Teachers’ Union (UTU), Irish National Teachers Organisation (INTO) and National Association of Schoolmasters Union of Women Teachers (NASUWT)

Avril Hall-Callaghan, General Secretary of the Ulster Teachers’ Union, Frank Bunting, Northern Secretary of the Irish National Teachers Organisation and Seamus Searson, Northern Ireland Organiser of the National Association of Schoolmasters Union of Women Teachers joined the meeting at 10.10am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: whether the Unions feel the Education Bill presents a threat to the preservation of school ethos; redeployment of teachers; who the Unions consider should be the submitting authority responsible for employment and management schemes; whether the Unions are in favour of maximising autonomy or centralisation; how effective ESA will be in raising standards in schools; concerns regarding the role of ESA in challenging schools; an explanation of INTO’s concerns regarding clause 34 that the Boards of Governors will have a duty to promote the achievement of high standards of educational attainment; differences across school sectors between teachers/non teaching staff regarding terms and conditions of service and employment; differences in staff promotion opportunities and allowances across the sectors; the use of the CCMS model for ESA; sectoral support bodies and the requirement to assist in raising standards in schools; the role of the sectoral bodies in addition to their advisory role; inequality of treatment of the controlled sector; concern regarding the composition and inadequate size of the membership of ESA; role of the Trade Unions within, and representation on ESA; Trade Union membership on ESA and potential conflict of interest; consideration of inclusion of statutory requirement to consult with the Unions; Clause 10 – employing panels of teachers; reservations regarding the use of public funds to employ external bodies to carry out research particularly with existing expertise, for example, within the E&LBs; representation of multicultural society across the school system; role of the Education Advisory Forum and its representation, for example, of the controlled sector.

Mr Poots joined the meeting at 11.19am.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 11.21am.

(b) Department of Education’s Response to UTU, INTO and NASUWT comments/concerns

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration, and Eve Stewart, Review of Public Administration joined the meeting at 11.22am.

The officials responded to the written submissions of, and presentation given by the three Teachers’ Unions and answered questions from members on a number of issues including: whether there is a risk that maximised accountable autonomy will be damaged if the submitting authority for controlled schools is one central ownership body; progress in relation to the Department’s inquiry regarding VAT exemption status transfer from E&LBs to the new ownership body; assurances from the Department regarding the size of the bureaucratic task facing schools in the preparation and operation of employment schemes; the allocation of future savings generated by ESA; what empirical evidence there is to suggest that ESA will be successful in raising standards in schools; ‘Every School a Good School’ policy; potential disagreement in the approach taken for raising standards in schools; use of the term ‘challenge’; intervention powers proposed in the Bill; how ethos will feature in schemes of employment; conflict of interest issue in relation to Trade Union membership on ESA; provisions within Clause 10 to employ a panel of teachers; provision within the legislation for early years education within the definition ‘educational services’; concerns regarding the size and composition of the membership of ESA; provision within Clause 13 to procure training, advisory and support services and not utilising expertise currently available within the E&LBs; whether ESA should have regard to the requirements of the Unions as well as industry, commerce and the professions; and the Minister’s consideration of a proposed amendment to the definition of submitting authority.

(c) Department of Education’s Response to NICCE and CCMS comments/concerns

The officials then responded to the presentations given by the Northern Ireland Commission for Catholic Education (NICCE) and the Council for Catholic Maintained Schools (CCMS) at the Committee’s meeting on 18 March 2009 and answered questions from members on a number of issues including: reasons for legislation exemptions for schools in respect of equality (Section 75) and FETO; the application of equality legislation governing public authorities such as the controlled school ownership body and not to Catholic Church owned schools; whether ESA will provide the same level of protection of ethos to Catholic schools as CCMS does; the current arrangements for the appointment of Boards of Governors and their composition; how the Department ensures applicants to Boards of governors on Catholic maintained schools are sympathetic to Catholic ethos;

Mr O’Dowd joined the meeting at 12.29pm.

the current Department of Education advert for recruiting those interested in serving on Boards of Governors and omitting the controlled sector from the list of preferred ‘school management type’ in which to serve as a Governor; request from NICCE for a change of wording regarding the ‘consultation’ on the appointment of community governors; whether the Department commissioned any research into definition of ethos, the protection of ethos within legislation and how this is carried out within other jurisdictions in the UK and elsewhere; requirement for the definition of ethos for example for the controlled sector; community background and ethnic origin statistics for pupils within the catholic maintained and controlled sectors; the role of the future sectoral bodies in raising standards; and proposed subordinate legislation to address the clarification of, and concerns in respect of Clause 8.

Mr Lunn left the meeting at 12.52pm.

The Chairperson reminded the officials of the Committee’s recent letter summarising specific information requests, particularly highlighting the request (item (v)) for proposals to address stakeholder concerns with Clause 8. He thanked them for an informative briefing and they left the meeting at 1.07pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to each of the three Teachers’ Unions. The Chairperson advised that the Unions will have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would write to the Department of Education highlighting the issues raised by the Committee and to remind officials to provide the following information requested during the course of the discussion:

  • a grid detailing all school categories and the composition of the Boards of Governors in respect of each of these categories.
  • a paper on other examples of faith based schools placed in public ownership and the provisions made within legislation to protect the ethos of such schools.
  • the percentage of children in the controlled sector who come from the Protestant/Unionist community;
  • the percentage of children in the Catholic maintained sector who are from the Catholic/Nationalist community;
  • percentage of children in Catholic maintained and controlled sector who come from ethnic minorities.

[EXTRACT]

Wednesday, 1 April 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr D Bradley (Deputy Chairperson)
Mr E Poots

The Chairperson opened the meeting at 10.02am in closed session.

The meeting moved into public session at 10.05am.

6. Education Bill – Evidence Sessions

(a) Education and Library Boards

Gordon Topping OBE, Chief Executive of NEE&LB, David Cargo, Chief Executive of BE&LB, Stanton Sloan, Chief Executive of SEE&LB, Barry Mulholland, Chief Executive of WE&LB, Gregory Butler, Acting Head of Property Services at SE&LB joined the meeting at 10.20am.

The Chairperson welcomed the Education and Library Boards’ representatives and paid tribute to, and appreciation of the work of Mrs Helen McCleneghan, who had very recently retired as Chief Executive of SE&LB. He also paid tribute in general terms to the work of the Education and Library Boards, pending their dissolution with the setting up of the ESA.

Ms O’Neill joined the meeting at 10.27am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: responsibility for planning school provision; strengthening within legislation the role of ESA of ‘co-ordinator’ to intervene; the role of Boards of Governors as ‘sub-committees of the ESA’; centralisation, fragmentation and localised autonomy; clarifying the differences between ‘employer’ and ‘employing authority’; the relationship between the employing authority and Boards of Governors in employment terms and legal liability on employment matters;

Mr McCrea joined the meeting at 10.40am

Mr McCausland left the meeting at 10.58am

potential financial savings resulting from the formation of ESA; current staffing position in E&LBs; transfer of staff and location of the ESA central body; the status of the Education and Library Boards (E&LBs) after 1 January 2010, if ESA is not established until April 2010; utilisation of the E&LBs expertise in the development of the ESA; powers of Departmental intervention within Article 158 and Article 101; role of ESA to monitor accountable autonomy of schools and powers to intervene; developing supported autonomy; absence of educationalist representative(s) within ESA implementation team; potential for fragmentation within the education service; capacity of Boards of Governors; the recruitment, training and support for future Boards of Governors; need for schemes of management to be in place for 1 January 2010; whether sectoral support bodies weakens future structures; ethos within the controlled sector; representation of councillors on ESA and the need for a larger ESA Board; clarity in the Bill on sub regional structures, how they should be constituted and the influence and powers of sub regional bodies and local committees; the role and impartiality of the Education and Training Inspectorate.

Mr McCaulsand rejoined the meeting at 11.20am.

Ms O’Neill left the meeting at 11.22am.

Mr Elliott left the meeting at 11.32am.

Mrs Bradley left the meeting at 12.15pm.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.35pm.

(b) Department of Education’s Response Education and Library Boards comments/concerns

John McGrath, Deputy Secretary, Chris Stewart, Head of Review of Public Administration, and Eve Stewart, Review of Public Administration joined the meeting at 12.36pm.

The officials responded to the written submissions of, and presentation given by, the five Education and Library Boards representatives and answered questions from members on a number of issues including: ambiguity regarding who will be in control of the contract of employment; clarification on differing views on ‘employer’ and ‘employing authority’ powers; delegation of autonomous role; addressing employment concerns and the requirement for clarity and more detail within the primary and possible subordinate legislation; deregulated oversight or centralised model; the independence of the Education and Training Inspectorate; consideration of retaining an element of the Education and Library Boards (and legislation) to become the ‘submitting authority’ for the controlled sector.

Mr O’Dowd left the meeting at 12.44pm.

Officials were reminded to provide a response to the Committee’s letter of 19 March 2009 detailing the Committee concerns & information requests on the Education Bill to date, and the paper requested at the meeting on 25 March 2009 on other examples of faith based schools placed in public ownership and the provisions made within legislation to protect the ethos of such schools.

The Chairperson thanked the officials for an informative briefing and they left the meeting at 12.59pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to each of Education and Library Boards. The Chairperson advised that the E&LBs will have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would seek legal advice on the definition of, and relationship between the ‘employer’ and ‘employing authority’ as set out in the Education Bill.

Agreed: the Committee would write to the Department of Education highlighting some of the key issues raised and information requests by the Committee to date on the Education Bill, and to remind officials to provide the following information requested during the course of this Committee meeting discussions:

  • Clarification on the status of the Boards after 1 January 2010, if ESA is not established until April 2010;
  • Further information on the Department’s powers of intervention within Article 158 and Article 101;
  • Details of the terms of draft subordinate legislation to govern the content of employment schemes at the earliest opportunity;
  • More detailed comment on the suggestion to retain an element of the Education and Library Boards (and legislation) to become the ‘ownership body’ for controlled/public schools.

[EXTRACT]

Wednesday, 22 April 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Mr D Douglas (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

The Chairperson opened the meeting at 10.02am in public session.

5. Education Bill – Evidence Sessions

(a) Transferor Representatives’ Council (TRC)

Reverend R Herron, Chairman of Transferor Representatives’ Council, Reverend T Gribben, Reverend J T Jamieson and Reverend I W Ellis, TRC Members joined the meeting at 10.22am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: the TRC vision and concerns that equality legislation is not being applied consistently to all sectors within the education system; membership of councillors on ESA; the right of the TRC to be represented on the ownership body and sectoral body for controlled schools; whether statutory bodies should be representative of the communities which they serve, the powers and responsibilities of the ownership and sectoral bodies; the need for the controlled sector to strengthen its representation role for the controlled sector; the historical context for the original transfer of school ownership from Church to State; linkage between ownership body and sectoral support body; concerns about the consultative role of sectoral support body; concerns about area planning role of ownership body; concerns regarding devolving responsibility for raising standards to Boards of Governors; professional support and training requirement for Boards of Governors; current statutory provision for guaranteed representation of TRC on Education and Library Boards; concerns regarding the lack of inspection of religious education within controlled schools; the ethos of controlled schools; centralisation of support services under the ESA and potential loss of local knowledge and contact.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 11.49am.

(b) Department of Education’s Response to TRC’s comments/concerns

Chris Stewart, Head of Review of Public Administration joined the meeting at 11.50am.

Mr McCausland left the meeting at 11.50am

Mr Stewart responded to the TRC’s written submission on the Bill, including its response to the Department of Education on Policy Paper 20 and answered questions from members on a number of issues including: the continuing lack of progress by the Department to address concerns about the representation of the controlled sector; provisions for comparable controlled sector representative rights in the new arrangements proposed in the Bill; the current legislative provision for controlled sector representation; perception that equality legislation is being ‘used against’ one sector; strengthening the consultative arrangements between the ownership body and the sectoral support body; required legislative amendment to Section 6 of the NI Act to allow TRC representation on the ownership body; the legislative provision allowing Councillors to be appointed as members of ESA; consideration of the option to retain an element of the Education and Library Boards legislative provisions to become the ownership body for the controlled sector; how to achieve parity of esteem between school sectors; ‘perceived’ or ‘actual’ advantages regarding ownership; ensuring the preservation of controlled sector Protestant/Christian ethos; strengthening the statutory linkages between the ownership body and the sectoral support body; the limited powers and influence of the non-statutory support bodies;

Mr McCausland rejoined the meeting at 12.13pm

Whether a statutory body can be made to be reflective of the community it serves or the entire community; the timeliness of the current recruitment of the ESA Chair; timescale for recruitment of ESA Board; whether the Minister will give further consideration to the size and composition of the ESA membership.

The Chairperson thanked Mr Stewart for an informative briefing and he left the meeting at 12.51pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to TRC. The Chairperson advised that the TRC will have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would write to the Department of Education highlighting some of the key issues raised and to remind officials to provide the following information requested during the course of this Committee meeting discussions:

  • Whether it would be possible to establish a statutory body whose composition is reflective of the community it serves.
  • Whether an amendment to Section 6 of the NI Act could be restricted to apply only to the issue of TRC’s right of representation on the ownership body.
  • Further consideration of the retention of an element of the Education and Library Boards to become the ownership body for controlled/public sector.
  • Further information on the strengthening of statutory linkages between the ownership body and the sectoral support body.
  • Further consideration on the size and composition of the ESA Board.

[EXTRACT]

Wednesday, 29 April 2009
Room 144, Parliament Buildings

Present: Mr D Bradley (Deputy Chairperson)
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Miss P Best (Clerical Supervisor)
Mr B Morgan (Clerical Officer)
Mr J McMillen (Assistant Legal Advisor)

Apologies: Mr M Storey (Chairperson)
Mrs M Bradley

The Deputy Chairperson opened the meeting at 10.16am in closed session.

The meeting moved into public session at 10.36am.

4. Education Bill – Evidence Sessions

(a) General Teaching Council for Northern Ireland (GTC NI)

Sally McKee, Chair, Eddie McArdle, Registrar and Barney Ball, Planning and Corporate Services Manager of GTC NI joined the meeting at 11.03am.

Miss McIlveen rejoined the meeting at 11.05am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: the GTC NI Charter for Education; Clause 29 - the making of associated regulations and the processes of referral; requirement on ESA to seek advice from GTC NI on training and advisory support services; co-ordination of GTC NI disciplinary powers with those of individual Boards of Governors; role of GTC NI in disciplinary cases; whether GTC NI has sought the views of Teachers on the establishment of ESA;

Mr McCausland rejoined the meeting at 11.30am.

Ms O’Neill left the meeting at 11.30am.

responsibility for raising and maintaining standards; opportunities within the ‘mixed economy’ approach for teachers’ professional development; Every School a Good School policy.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 11.43am.

(b) NIPSA

Alison Millar, Assistant Secretary, Heather McKinstry, Chairperson NIPSA Education Panel, Helena McSherry, Vice-Chairperson, NIPSA Education Panel joined the meeting at 11.44am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: the PPP/PFI methodology for the procurement of the schools estate; NIPSA’s position on ESA efficiency savings; concerns about projected 463 job losses; commitment to no compulsory redundancies; size and composition of the membership of the ESA; whether automatic representation of Trade Unions on the ESA would present a conflict of interest; community/business representation on the ESA; the adverse impact on staff of the prolonged use of vacancy control.

Ms O’Neill rejoined the meeting at 12.12pm.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.19pm.

(c) Department of Education’s Response to GTC and NIPSA comments/concerns

John McGrath, Deputy Secretary and Chris Stewart, Head of Review of Public Administration joined the meeting at 12.20pm.

The officials responded to the GTC NI’s and NIPSA’s written submission on the Bill, and answered questions from members on a number of issues including: how much of the £20 million savings detailed in the outline business case will go to front-line services; the adverse impact on staff of the prolonged use of vacancy control; the treatment of staff with long-term acting up responsibilities; the governance of ESA; ESA as an operational delivery vehicle of Government policy; the purpose of the Bill and whether it is to provide a vision for education provision; whether there is any reason why the Department cannot give assurances that there will be no compulsory redundancies;

Mr Elliott left the meeting at 12.26pm.

The officials agreed to provide a response to the Committee’s correspondence of 19 March on detailing the Committee’s concerns in relation to the Education Bill as soon as possible. Also the Minister will give consideration to a substantive view from the Committee on the size and composition of the membership of ESA. Officials also said that models schemes of employment would be produced in consultation with the Trade Unions.

Mr McCausland left the meeting at 12.40pm.

Mr Poots left the meeting at 12.45pm.

Mr McCrea left the meeting at 12.45pm.

Mr Lunn left the meeting at 12.49pm.

The Chairperson thanked the officials for an informative briefing and they left the meeting at 12.50pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to the GTC and NIPSA. The Chairperson advised that GTC and NIPSA will have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would write to the Department of Education highlighting some of the key issues raised and to remind officials to provide the following information requested during the course of this Committee meeting discussions:

  • a response to the Committee’s correspondence of 19 March detailing the Committee’s concerns on the Education Bill.
  • An explanation of how efficiency savings have already been used; what the RPA education reform contribution is and what is projected within the CSR period; and what percentage that represents out of the £20 million projected savings.

[EXTRACT]

Wednesday, 6 May 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Miss P Best (Clerical Supervisor)
Mr B Morgan (Clerical Officer)
Mr J McMillen (Assistant Legal Advisor)

Apologies: Mr E Poots

The Chairperson opened the meeting at 10.04am in closed session.

The meeting moved into public session at 10.10am.

5. Education Bill – Evidence Sessions

(a) Northern Ireland Council for Integrated Education (NICIE)

Michael Wardlow, Chief Executive, Frances Donnelly and Lorna McAlpine, Senior Managers, joined the meeting at 10.23am.

Mr Lunn joined the meeting at 10.28am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: the perceived inequity in the protection and promotion of two sectors (ie Integrated and Irish-Medium) within legislation at the disadvantage of the other education sectors; equality of outcome and the requirement for positive discrimination; provision of parental choice; the transformation of schools from ‘controlled’ to ‘integrated’ sector status; lack of area based planning for integrated education; the assurances required regarding retaining Boards of Governors right to ‘hire’ and ‘fire’; lack of reference to good relations and community relations within the Bill; the retention of existing expertise and experience within ESA in areas such as training for teachers to manage diversity within the classroom; the differences between the ethos of the integrated sector to that of the controlled sector; whether the integrated sector can be subsumed within the controlled sector under ESA; objections to a majority councillor membership on ESA; the participation of young people on the Education Advisory Forum; equitable treatment regarding capital build and estate provision.

Agreed: the witnesses would come back to the Committee with wording which would make reference to good relations and community relations for inclusion within the Bill.

Mr McCaulsand joined the meeting at 11.11am.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 11.12am.

(b) Comhairle na Gaelscolaíochta (CnaG)

Caoimhín Ó Peatáin, Leas-Chathaoirleach /Vice Chair, Seán Ó Coinn, Príomhfheidhmeannach /CEO, and Liam MacGiolla Mheana, Oifigeach Sinsearach Oideachais /Senior Education Officer joined the meeting at 11.44am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: the perceived inequity in the protection and promotion of two sectors (ie Integrated and Irish Medium) within legislation at the disadvantage of the other education sectors; whether the promotion and encouragement of the Irish Medium sector would be diminished if a duty was placed on ESA to read ‘encourage and facilitate all school sectors’; the slow-down in growth of the Irish Medium sector as indicated in the Chief Inspector’s Report; Clause 2 –a proposed duty on ESA to encourage and facilitate the development of Irish Medium education; whether allowing the trustees of Irish Medium schools to be given the power to act as the ‘submitting authority’ will help promote and protect the ethos of the sector; the role of the trustees to ensure the long-term welfare of the education provision of the sector; the role of the sectoral support body to maintain, promote and protect ethos; proposed amendment to Clause 26 – and whether it is realistic for ESA to have regard to pupils of Irish Medium schools to use their Irish language in wider society beyond the school;

Mr Lunn left the meeting at 11.46am.

awareness of the Irish language economy; concerns regarding the redeployment opportunities of staff from CnaG to ESA; and how the Irish Medium sector will benefit from the creation of ESA.

Mrs Bradley left the meeting at 12.08pm.

Mr Elliott left the meeting at 12.10pm.

The Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.19pm.

(c) Department of Education’s Response to NICIE and CnaG

Chris Stewart, Head of Review of Public Administration joined the meeting at 12.21pm.

Mrs Bradley rejoined the meeting at 12.22pm.

The official responded to NICIE’s and CnaG’s written submissions on the Bill, and answered questions from members on a number of issues including: timeframe in which the Committee will have sight of the Department’s amendments to Clauses 2, 3, 26 and 31 and the timeframe for the provision of the second Education Bill; whether reassurance can be found for the controlled sector to protect the long-term ethos of their schools, similar to that being proposed by the Irish Medium sector; whether ESA can facilitate the needs of Irish Medium pupils beyond the school in wider society; the Department’s view to NICIE’s concerns regarding the lack of reference to ‘good relations’ or ‘community relations’ within the Bill; consideration of the suggestion to allow the trustees of Irish Medium schools to be given the power to act as the ‘submitting authority’; and the appropriate vehicle for fostering and developing ethos, if not within legislation.

Mr Elliott rejoined the meeting at 12.39pm.

Mr O’Dowd left the meeting at 12.41pm.

The Chairperson thanked the official for an informative briefing and he left the meeting at 12.44pm.

Mr McCrea left the meeting at 12.44pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to the NICIE and CnaG. The Chairperson advised that NICIE and CnaG have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would write to the Department of Education highlighting some of the key issues raised and to remind the Department officials to provide the following information agreed to be provided during the course of the Committee meeting discussions:

  • a full description of the content of the second bill, particularly around the issue of area based planning and the associated draft clauses (for the briefing session on 3 June).
  • a definitive list of the Department’s proposed amendments to the first Bill (within 2 weeks).

[EXTRACT]

Wednesday, 13 May 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Miss M McIlveen
Mr J O’Dowd
Ms M O’Neill
Mr E Poots

In Attendance: Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Miss P Best (Clerical Supervisor)
Mr B Morgan (Clerical Officer)

Apologies: Mr D Bradley (Deputy Chairperson)
Mr B McCrea

The Chairperson opened the meeting at 10.07am in public session.

5. Education Bill – Evidence Sessions

(a) Association for Quality Education (AQE)

Sir Kenneth Bloomfield, Chairperson, William Young, Chief Executive, and Roy Lilley, Representative joined the meeting at 10.15am.

Mr Elliott joined the meeting at 10.16am.

Miss McIlveen joined the meeting at 10.25am.

The witnesses gave a presentation on the Education Bill and answered questions from members on a number of issues including: concerns that the intention of the Bill is not adequately reflected within the detail of the proposed legislation; concerns regarding the size and composition of ESA; the public school system in Edmonton, Canada; freedom to retain responsibility for employment matters; loss of autonomy in the use of standardised schemes of management; clarity on the distinction between the employing authority and the employer; the relationship between ESA and Boards of Governors; definition of community governors; the voluntary principle; whether there is confidence that ESA will deliver an enhanced system; negative impact that centralisation may have on rural areas; the role of ESA if a Board of Governors acted outside the law; how to ensure staff across the education sectors are treated equitably; and preservation of voluntary grammar school ethos.

Mr O’Dowd joined the meeting at 10.53am.

Mr Poots joined the meeting at 11.07am.

The Chairperson thanked the witnesses for an informative briefing and requested a copy of a letter of 10 March 2009, from the Minister of Education to the Chairperson of AQE, to assist with the Committee’s deliberations on the Education Bill. The witnesses left the meeting at 11.48am.

The Chairperson left the meeting at 11.48 and the Committee agreed that Mr McCausland take the Chair.

(b) The Association of NI Education and Library Boards (ANIE&LB)

Alderman Roy Beggs, Chairperson of NEE&LB, Peter Duffy, Chairperson of WE&LB, Gary Haire, Chairperon of SEE&LB, and Hilary Sloan, Chairperson of the Education Committee at BE&LB joined the meeting at 11.49am.

Miss McIlveen left the meeting at 12.14pm.

The witnesses gave a presentation on the Education Bill and Policy Paper 20 and answered questions from members on a number of issues including: The need for greater clarity within the detail of the Bill; the potential conflict of interest presented by ESA assuming the role of CCEA; difficulties in attracting new Boards of Governors; concerns about the responsibilities of Boards of Governors and how they will be held accountable; clarification on the composition and functions of ESA local committees; ethos of the controlled sector schools; concerns regarding the size and composition of the membership of ESA.

The Acting Chairperson thanked the witnesses for an informative briefing and they left the meeting at 12.37pm.

(c) Department of Education’s Response to AQE and ANIE&LB

Chris Stewart, Head of Review of Public Administration joined the meeting at 12.39pm.

Miss McIlveen rejoined the meeting at 12.40pm.

Ms O’Neill left the meeting at 12.46pm.

Mr Poots left the meeting at 12.51pm.

The official responded to AQE’s and ANIE&LB’s written submissions on the Bill, and answered questions from members on a number of issues including: the appointment of governors; the catchment area from which community governors can be recruited; the responsibility of Boards of Governors in employment related matters; whether a Board of Governors would have a right to judicial review of a decision made by ESA; potential conflict of interest presented by ESA assuming the role of CCEA; and when further information on the composition and functions of local committees will be provided.

Mr Poots rejoined the meeting at 1.05pm.

The Acting Chairperson thanked the official for an informative briefing and he left the meeting at 1.06pm.

Agreed: the Committee would provide copies of the Department of Education’s response paper to the AQE and ANIE&LB. The Chairperson advised that AQE and ANIE&LB have a right to reply and are welcome to respond to the Committee on the Department’s paper.

Agreed: the Committee would write to the Department of Education highlighting some of the key issues raised and to remind the Department officials to provide further information on the composition and functions of local committees within 2 -3 weeks as discussed.

[EXTRACT]

Wednesday, 20 May 2009
Room 144, Parliament Buildings

Present: Mr M Storey (Chairperson)
Mr D Bradley (Deputy Chairperson)
Mrs M Bradley
Mr T Elliott
Mr T Lunn
Mr N McCausland
Mr B McCrea
Miss M McIlveen
Mr J O’Dowd

In Attendance: Ms N Dunwoody (Clerk Assistant)
Mr J Simmons (Assembly Clerk)
Mr A Hicks (Assistant Assembly Clerk)
Mrs R Donnelly (Assistant Assembly Clerk)
Miss P Best (Clerical Supervisor)

Apologies: Ms M O’Neill
Mr E Poots

The Chairperson opened the meeting at 10.06am in public session.

5. Education Bill – Committee Stocktake

The Chairperson provided a summary of the progress of the work of the Committee in its scrutiny of the Education Bill to date. The Committee then considered a draft letter to the Minister of Education (and attached table) responding to the Department of Education’s correspondence of 5 May 2009, which addressed some of the Committee’s key concerns and information requests on the Bill.

Mr Elliott joined the meeting at 10.18am.

Mr Bradley joined the meeting at 10.23am.

Members considered the draft letter to the Department of Education paragraph by paragraph.

Par