Minutes of Evidence 19 September 2002

Education Committee

Thursday 19 September 2002


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

Members present:

Mr Kennedy (Chairperson)
Mr S Wilson (Deputy Chairperson)
Mrs E Bell
Mr McHugh
Mr A Maginness
Mr K Robinson


Mr T Smyth ) Department of Education

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr A Maginness: I declare an interest as a member of the Board of Governors of St Patrick’s College in Belfast.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr Smyth: Exactly.

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

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

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

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

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

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

The Chairperson: Clause 16 deals with child protection measures.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr Smyth: Yes.

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

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

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

Mr S Wilson: No, I am not.

Mrs E Bell: That is what you are saying.

The Chairperson: Order please.

Mr Smyth: I assure Cllr Bell that copies —

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

Mr Smyth: I am sorry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Chairperson: Only at home.

Mrs E Bell: Only here.

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

The Chairperson: Good chairmen are bullies.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"preventing all forms of bullying among pupils".

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

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

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

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

Mr Smyth: That is the objective of the measures.

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

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

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

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

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

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

Mr Smyth: That is my understanding.

Mr S Wilson: Perhaps it should say that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr Smyth: In this context?

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

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

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

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

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

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

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

The Chairperson: A series of amendments would be required.

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

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

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

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

Mr S Wilson: Fifty per cent were returned.

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

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

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

The Chairperson: Will they be scrutinised by the Assembly?

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

The Chairperson: Is it the procedure?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Chairperson: We are still on record.

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

Mr S Wilson: Not after that remark.

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

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