Minutes of Evidence 12 September 2002

Education Committee

Thursday 12 September 2002


Education and Libraries Bill:
Committee Stage
(NIA 21/01)

Members present:

Mr Gibson (Acting Chairperson)
Mrs E Bell
Mr Gallagher
Mr McHugh
Mr McLaughlin
Mr K Robinson


Mr N McCormick ) Department of Education
Mr B Fitzsimmons )

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

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

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

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

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

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

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

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

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

The Acting Chairperson: Does article 14(5B) require the board to consult only the trustees?

Mr McCormick: Trustees, managers or their representatives.

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

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

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

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

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

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

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

Mr McCormick: Are you referring to the objection period?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Acting Chairperson: That is the general fear.

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

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

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

Mr K Robinson: But you are aware of it?

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

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

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

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

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

Mr McCormick: Yes.

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

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

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

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

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

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

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

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

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

Mr K Robinson: How long would it take overall?

Mr Fitzsimmons: It would take three or four months.

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

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

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

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

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

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

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

Mr McLaughlin: When will the consultation be brought forward?

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

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

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

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